EverythingPeople This Week!

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...

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.

4

Dec

2018

The Changing Landscape in OFCCP Land

Author: Anthony Kaylin

OFCCP is moving at light speed to make changes as to how it operates.  There have been a number of new directives in 2018 already, “righting the ship” from the previous administration.  Now comes three new directives for Fiscal Year 2019 (DIR 2019-01, DIR 2019-04, and DIR 2019-03).  These directives are officially changing the way OFCCP is doing business and how audits will be handled in the future. 

27

Nov

2018

Defending Equal Pay Claims Has Become More Complicated

Author: Anthony Kaylin

For employers defending an equal pay act (EPA) discrimination claim, the “factor other than sex” affirmative defense generally prevails, except when it doesn’t.  And lately, courts have been more reluctant to accept the affirmative defense. 

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Michigan’s Paid Time Off Law, Whether Repealed or Amended, Compels Employer Review of Its Paid and Other Time Off Policies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

How Does a Divided Congress Impact Employers?

Author: Anthony Kaylin

With the election over and the results showing Democrats taking over the House of Representatives and the Republicans retaining Senate control, what does it mean for employers?  It is expected that the House Democrats will push a pro-labor and regulatory agenda as well as an aggressive oversight of the Executive Branch.  The Senate Republicans will likely continue staffing the Federal courts, which will have a long-term impact on employment cases, and thus employment policy.

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

Marijuana is Legalized in Michigan - How Will it Affect Workplace Drug Testing?

Author: Susan Chance

The people of the State of Michigan passed Proposal 18-1, also known as Proposal 1 or Prop 1, legalizing the recreational use of marijuana. Below are answers to some of the questions employers may have around the legalization of marijuana and drug testing in the workplace.

6

Nov

2018

When Employee Rights Collide in the Workplace

Author: Anthony Kaylin

Terry Bonnette, Partner, Nemeth Law PC presented on this topic at our Annual HR Conference last March.  It is an important issue today as a number of factors have risen, making HR shake their heads in confusion.  As seen in the news, the most vexing issue for employers today is how gender identity and sexual orientation rights are competing with religious beliefs and rights.  With these issues spilling into the workplace, it is important for HR to have a game plan when these...

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.

23

Oct

2018

Joint Employment is Gearing Up, and It is Still Confusing

Author: Anthony Kaylin

Currently, the definition of joint employment is all over the place, depending on the agency. Before 2009, joint employment essentially required direct control of the other employer’s employees.  In other words, if the joint employer was controlling all work situations such as hiring and firing, joint employment was likely to be found.  Under the Obama administration, joint employment was based not just on direct control, but indirect control.  In other words, signing the...

16

Oct

2018

What is the Difference Between an Offer Letter and an Employment Contract?

Author: Anthony Kaylin

Although an offer letter and an employment contract have similarities, they are very different.  An offer letter has very basic terms and conditions of employment, generally subject to completion of a successful background check and/or medical exam, and states that employment is at-will.  In other words, the employee can walk anytime, although notice requirement is requested, and the employer can terminate for any reason at any time. This term will likely prevent, in a dispute...

16

Oct

2018

Using Criminal Checks in Background Screening

Author: Susan Chance

More and more employers are using background screening as part of the employment process. This is important for protecting employees as well as the company. These days we see acts of violence happening in the work place far too often in the news. We also see more litigation against employers based not only on what they knew, but what they should have known, so it is logical that background screening is important.

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.

2

Oct

2018

Should an HR Rep be Fired for Allegedly Helping an Employee Sue the Company?

Author: Anthony Kaylin

Andrea Gogel was hired in 2008 to be the manager of the Team Relations Department of Kia Motors Manufacturing of Georgia, Inc.  During her time at Kia, Gogel heard many complaints about how women and Americans were treated at the Korean owned company. She believed she experienced similar treatment herself, and in her view, had been denied a promotion because she is a woman and an American.  She investigated these complaints and followed Kia’s procedure.   In 2009 Kia...

25

Sep

2018

Senate Bill 2155 Amends the FCRA

Author: Susan Chance

Senate Bill 2155 was enacted to provide protections and improvements for consumers regarding financial transactions such as credit, mortgages, and student loans. This bill also changes the way some institutions such as banks and credit unions do business, and it amends the Fair Credit Reporting Act (FCRA), adding a new section, 605A(i). The FCRA governs background verifications, and there are some important changes that any employer running backgrounds through Credit Reporting Agencies must...

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...

25

Sep

2018

OFCCP Issues Two New Directives: Transparency and Ombud service

Author: Anthony Kaylin

In the last month, OFCCP (Office of Federal Contract Compliance) has been very active issuing a number of directives. Two new ones were released last week.

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.

11

Sep

2018

Does an Employee Need to File and Resolve an EEOC Charge Before Filing a Discrimination Suit?

Author: Anthony Kaylin

The answer is no, according to the 10th Circuit Court of Appeals (which covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus those portions of the Yellowstone National Park extending into Montana and Idaho).  This decision brings it in line with other circuit courts of appeals. 

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