EverythingPeople This Week!

19

Feb

2019

Developing or Integrating Your Organization’s Paid Time Off to Comply with Michigan’s New PTO Law

Author: Michael Burns

With the passage of and impending enactment date (March 29, 2019) of Michigan’s new Paid Medical Leave Act, employers that are covered are hastily reviewing their existing vacation, sick, and personal time, as well as formal Paid Time Off benefits and policies to see how far off they may be from compliance with the new law.

5

Feb

2019

Retraction of Narrower Independent Contractor Definition Continues

Author: Michael Burns

Of the many Obama era labor and employment overreaches, the re-defining of joint employer and independent contractor was (and continues to be) arguably the most controversial. The National Labor Relations Board (NLRB) previously focused on union-employer relations.  But during the Obama Administration it imposed itself on the world of corporate law by reconstruing the law and using its case decision making authority to find most independent contractor relationships void.  This in...

29

Jan

2019

Union Membership Continues to Slip

Author: Michael Burns

The Bureau of Labor Statistics (BLS) released its report on 2018 union membership last week and total union membership continues to slip as a percent of the U.S. workforce. For 2018 total union membership – public and private employers – stood at 10.5% (14.7 million workers). That downward trend of 0.2 percentage points from 2017, continues a downward trend from the union movement’s heydays of the late 50’s/early 60’s where union membership was estimated at over...

22

Jan

2019

Fluctuating Workweek Method to Determine Regular Rate of Pay

Author: Michael Burns

Last week’s EPTW article, Keeping up on Your Fair Labor Standards Act Understanding, reviewed the recent Department of Labor Opinion Letter (FLSA 2018-28) outlining a legal method to calculate a regular rate of pay when more than one pay rate is paid to an employee. The Opinion Letter stated an employer may not arbitrarily set a regular rate from two or more pay rates that it uses to calculate overtime from. It must calculate the regular rate by averaging hours worked and the different...

15

Jan

2019

Keeping up on Your Fair Labor Standards Act Understanding

Author: Michael Burns

Does an Employer Have to Pay an Applicant for Interviewing for a Job? Of course not, one might say. But not so fast. Does your company use a “working interview” to select qualified employees? Some companies use this form of applicant screening. As the name suggests, a “working interview” has the applicant performing work or they have the potential employee attend training during the selection process.

8

Jan

2019

DC Appeals Court Ruling on Joint Employer Status Does Not Clear Up Much for Employers

Author: Michael Burns

Over the holidays the District of Columbia (DC) Appeals Court held that although the National Labor Relations Board (NLRB) may determine joint employer status, its test in the Browning-Ferris decision handed down in 2015 did not do the job properly.  The original Browning-Ferris decision handed down by the NLRB held that even “when two entities never have exercised joint control over essential employment terms, and given when any such joint control is not ‘direct and...

18

Dec

2018

When Technology Takes a Job, Do Unions Have a Say?

Author: Michael Burns

With the impending autonomous automobile era, comes the next iteration of collective bargaining concerns. When an employer is organized by a union the jobs are normally what is part of the union and spoken of in the labor contract – not the individual workers that hold the job. Therefore, when jobs and job security intersect, the issue of work classification changes are what is of concern to the union.

14

Dec

2018

Breaking News - Governor Snyder Signs Michigan Minimum Wage and Earned Sick Time Laws

Author: Michael Burns

Late Thursday, Governor Snyder signed the Minimum Wage law (SB 1171) that takes Michigan’s minimum wage to a maximum of $12.05/hr. in 2030 and removed the future indexing of the minimum wage to inflation. He also signed the Earned Sick Time law (SB 1175) that implements paid time off for employee or family member illness, injury, domestic violence, and sexual assault. The new law applies to employers with over 50 employees.

11

Dec

2018

Amended Employee Time Off and Minimum Wage Bills Await Governor’s Signature

Author: Michael Burns

As many employers know by now, the Michigan Legislature amended the two expensive and administratively burdensome laws this month. They now go to the Governor’s desk for signature. However, Governor Snyder is being somewhat cagey in his support for passage. On Sunday’s Channel 4 show, Flashpoint, Devin Scillian asked Governor Snyder if he would be signing the laws. Governor Snyder responded he was looking at all laws passed by the lame duck Legislature for policy value...

4

Dec

2018

Michigan Paid Time Off and Minimum Wage Laws in Process of Amendment

Author: Michael Burns

The Michigan Legislature wasted no time addressing the amendment of the expensive and poorly constructed Minimum Wage and Earned Sick Time laws passed earlier this year. Last evening the State House of Representatives followed the Senate’s passing of both laws and sent them to the Governor's desk for signature.

27

Nov

2018

Michigan’s Paid Time Off Law, Whether Repealed or Amended, Compels Employer Review of Its Paid and Other Time Off Policies

Author: Michael Burns

As covered in the November 21st issue of EPTW, Michigan employers have to monitor what paid time off benefits will be required of them going forward. Will Michigan’s GOP-led legislature repeal the Michigan’s Earned Sick Time Act entirely or just amend it in order to relieve some of its expense to smaller employers? It appears that pro-business parties may just go for amending the law down to some “reasonable” degree.

20

Nov

2018

Work to Begin on Michigan Paid Time Off and Minimum Wage Laws Amendment

Author: Michael Burns

Our Michigan Legislature will be returning to work the Tuesday after Thanksgiving. The session between then and the end of the year is what is called the Lame Duck Session. Lame Duck is a term used in politics that refers to elected officials whose successor has already been elected so they have less influence because they only have a limited time left serving. Though that sounds a bit depressing, the flip side of the coin is a lame duck is free to do things without much fear of consequence.

13

Nov

2018

Michigan - Democrat Governor, Republican House and Senate – What Should Employers Expect?

Author: Michael Burns

Last week Michigan’s electorate voted in Democrat Gretchen Whitmer as Michigan’s Governor, breaking eight years of solid GOP governance in Michigan. Not to mention the state Republican Supreme Court as well. Employers, overall, have enjoyed a pro-business environment for quite a long time where governance has been pragmatic and not by “gotcha” legal and regulatory enforcement.

6

Nov

2018

UAW Hypocrisy and Other Lapses of Reason

Author: Michael Burns

In case you missed this, the UAW is buying outgoing UAW President Dennis Williams, now retired, a “cottage”. The original cost estimate for this up-north getaway was $1.3 million as reported by the Detroit News. Union member dues (recently increased from two hours of work per month to two and one half hours) will pay for this “cozy” 1,885 square foot lodge consisting of granite counters, stainless steel appliances, a woodburning fireplace, wine cooler, patio...

29

Oct

2018

Election and Voting Rights – Employee Protections

Author: Michael Burns

Next Tuesday the country will vote in its midterm elections. By some accounts this election is likely to see a lot more people voting than normal. That means employers may see workers coming in late or leaving early or during the day to vote. Employers should be aware that in certain states employees taking worktime to vote are protected from employer discipline or discharge. In some states, workers must even be paid while out to vote.

23

Oct

2018

OSHA Continues to Walk Back (Clarify) Onerous Rule that Curtailed Employer Post-Accident Drug Testing

Author: Michael Burns

Just over two years ago, the federal Occupational Safety and Health Administration (OSHA) published rules that more than suggested employers could no longer have mandatory post-accident/injury drug testing. The rule amended 9 C.F.R. § 1904.35 to add a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses.

16

Oct

2018

Illinois Employee Reinstated Contrary to Company No Gun Policy

Author: Michael Burns

Last week the Seventh Circuit Court of Appeals re-instated an employee terminated because while arguing with his supervisor he allegedly made threatening remarks. It was also known the employee carried concealed weapons on his person or in his vehicle. This would be in breach of the company’s workplace violence policy that prohibits employees from possessing unauthorized weapons in the workplace. Several days later representatives of the company along with a union representative and a...

9

Oct

2018

Employee Arbitration Agreements are Back

Author: Michael Burns

With last Spring’s Supreme Court Epic Systems Corp. ruling that upheld class action waivers and arbitration as a legal dispute resolution process, employers are once again free to require employees to sign alternative dispute resolutions agreements.

2

Oct

2018

U.S. Supreme Court has Five Employment/Labor Cases Lined up for Decision This Term

Author: Michael Burns

The current term of the U.S. Supreme Court starts this week. It will start with eight justices that are pretty evenly split in their judicial philosophies - conservative vs. liberal. If a new justice appointment is delayed, some of these decisions may hang in the balance.

25

Sep

2018

Employee Use of Recording Devices at Work

Author: Michael Burns

With the disclosure that Omarosa Manigualt Newman, former Director of Communications for Trump’s Office of Public Liaison and Apprentice show contestant, recorded conversations, including her termination from employment in supposedly one of the most secure places on earth, a common employer has to wonder what kind of unauthorized recordings could occur unbeknownst to them. Is there any recourse they might have if an employee records a sensitive conversation for use at a future...

18

Sep

2018

National Labor Relations Board (NLRB) Proposes Joint Employer Rule

Author: Michael Burns

Last Friday the NLRB published proposed rules that will roll back the previous NLRB’s stringent test for determining whether affiliated businesses are joint employers or not.

11

Sep

2018

Michigan Legislature Passes Minimum Wage Increase and Paid Time Off Legislation – But Not to Support the Causes

Author: Michael Burns

Last week the Michigan Legislature passed two new employment laws. One increases Michigan’s minimum wage to $12.00 over a period of four years, and the other requires Michigan employers to offer paid time-off benefits to employees. The laws were passed in quick order to ensure that these two laws did not go to ballot this November.  Doing so gives the Michigan Legislature power to amend the laws, which the backers of the ballot initiative did not want.

4

Sep

2018

U.S. Department of Labor’s Wage and Hour Issues New Opinion Letters

Author: Michael Burns

Last week the U.S. Department of Labor’s (DOL’s) Wage and Hour Division issued a set of new Opinion Letters on the following questions:

28

Aug

2018

Sixth Circuit Court Falls into Line with Right of Employers to Enforce Class Action Arbitration Clauses

Author: Michael Burns

On August 15th the Sixth Circuit Court of Appeals handed down a ruling upholding an employer’s agreement to arbitrate claims individually.  This decision was in line with the recent Supreme Court decision that determined the National Labor Relations Act’s (NLRA) stated right of collective concerted activity did not supersede the Federal Arbitration Act (FAA). In its Epic Systems Corp. v. Lewis decision (138 S. Ct. 1612 [2018]) the U.S. Supreme Court (SCOTUS) held that the...

21

Aug

2018

Despite Positive Action on Company Rules/Policies, NLRB Continues to Go “Old School” on Workplace Vulgarity

Author: Michael Burns

ASE has followed the memo’s and decisions that have come out of NLRB in the last decade, and one “progressive” initiative has always stood out as very archaic. This the National Labor Relations Board (NLRB) position that production workers have a protected right to use disrespectful and vulgar language to express themselves based on their rights under the National Labor Relations Act (NLRA).

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