Michigan Employment Law

We don’t do this very often, but today we have a guest blogger.  Andrea Bernard is highly respected and talented partner at WNJ.  She spends a good deal of her time doing employment litigation.  You can read more about her at the end of this post or you can Andrea’s bio here.  This post first appeared on our sister blog at Ahead of the Curve.

Every day, in state and federal courts throughout Michigan, companies are sued by plaintiffs who allege that their current or former employer discriminated against them because of a “protected characteristic” (age, sex, race, religion, handicap, etc.); retaliated against them for some “protected activity;” failed to honor their protected rights under a state or federal statute (e.g., FMLA); wrongfully discharged them or otherwise breached a contract of some sort; etc., etc.  It seems at times as though the list could go on indefinitely, and is limited only by the creativity of the plaintiffs’ bar.  And, every day, employers miss the opportunity to potentially limit their exposure to these myriad claims with a simple clause that can be included in an application for employment, an employment contract, or appropriate new hire paperwork: a contractual limitations period.

Every claim, cause of action, or lawsuit that can be filed against an employer is subject to a “statute of limitations.”  This is a legal deadline by which a plaintiff must file his or her lawsuit, or lose it forever.  Some statutes of limitation are long (e.g., claims for breach of contract in Michigan are subject to a six year statute of limitations).  Others are short (e.g., claims under the Michigan Whistleblower Protection Act must be filed within 90 days after the alleged retaliation occurs).  In between, statutes range from 300 days (to file a charge of discrimination with the EEOC, a mandatory administrative precursor to a Title VII claim in federal court) to three years (to file a claim of discrimination under Michigan’s Elliot Larsen Civil Rights Act).  Just keeping track of the various statutes can seem like a full time job some days!  But, in most cases, these statutory limitations periods can be adjusted by written agreement to a single, enforceable limitation period for all claims.  Federal courts in Michigan apply a “reasonableness” test to the agreed limitation period, holding that the time must still provide the employee “sufficient opportunity to investigate and file an action” and must not “work a practical abrogation” of the employee’s rights.  Michigan state courts will enforce a contractual limitation period unless some other traditional contract defense, such as fraud, duress, or waiver applies.  In most instances, however, courts have ruled that a six-month contractual limitation period is reasonable and enforceable.

As with all “rules” there are exceptions.  For example, at least one federal court in Michigan recently ruled that a contractual limitation period was not effective to bar claims filed by the EEOC on behalf of an employee, and did not prevent the intervenor employee’s participation in the lawsuit that the EEOC filed.  EEOC v. Ranir, 2012 WL 381339 (Feb 6, 2012).  Some federal courts have also held that waivers under the FLSA must be approved by the Department of Labor or a federal court to be enforceable.  And, of course, a claim that is filed within the six-month agreement would not be barred.  But in that instance, a primary objective of having the shortened period – preventing stale claims long after the employee has left and potential evidence and witnesses gone – is satisfied nonetheless.  So, although not a “silver bullet” to kill all claims, an employer can effectively limit its exposure for many claims for the cost of less than a silver bullet.

Andrea is a litigator who, since 1993, has represented manufacturers, contractors, financial institutions and others involved in employment, commercial and construction disputes. Always open to a new challenge, Andrea learned at a young age how to assert her position and negotiate solutions. “Growing up number 8 in a family of 11 children played a large role in forming my personality and my competitive nature. Long before I was born, my parents adopted a policy of not interfering in disputes among the kids. Left to our own devices, we kids solved a few of our disputes with fist fights, but more often with diplomacy. I learned very early how to hold my own in either forum,” she says. Andrea also serves as the firm’s Associate General Counsel.

The EEOC Issues Guidance on Using Arrest and Conviction Records in Employment Decisions under Title VII.

The EEOC issued it newest guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 today.

Some of the high points from the summary:

The Guidance focuses on employment discrimination based on race and national origin.

The Guidance discusses the differences between arrest and conviction records.

• The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

The Guidance discusses disparate treatment and disparate impact analysis under Title VII.

• A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).

• An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).

You can find the Guidance here.

Want to read more, go to wnj.com.

As you know, there has been a lot of gnashing of teeth lately over employers requiring employees and candidates for employment to hand over their passwords to social media sites like Facebook and Google +.  You may recall that I wrote about a couple of Senators writing an open letter to the EEOC.  I even mentioned that a bunch of bills were pending at the federal level dealing with privacy in one way or another.  You can see the post here.

What I did not tell you was what was going on at the state level.  I thought I would.  Currently pending in the Michigan State Legislature is House Bill 5523.  You can see it here.  The bill is pretty short and is designed “ to prohibit employers and educational institutions from requiring certain individuals to disclose information that allows access to certain social networking accounts; to prohibit employers and educational institutions from taking certain actions for failure to disclose information that allows access to certain social networking accounts; and to provide remedies.”  Section 3 of the bill says:

Sec. 3. An employer shall not do any of the following:

(a) Request an employee or an applicant for employment to disclose access information associated with the employee’s or applicant’s social networking account.

(b) Discharge, discipline, fail to hire, or otherwise discriminate against an employee or applicant for employment for failure to disclose access information associated with the employee’s or applicant’s social networking account.

Violate this section and according to the bill, you have committed a misdemeanor and can go to jail for up to 93 days.  That’s right, YOU CAN GO TO JAIL!  And the person whose private access information you want to get can sue you for actual damages or $1,000, whichever is greater.  They also get costs and attorney fees just in case we needed to give the plaintiff’s bar incentive to take these cases.

Don’t think this bill will ever pass?  Think again.  Maryland has already passed a similar law.  You can read about it at Molly DiBianca’s excellent Delaware Employment Law blog.  California is about to become state number 2.

Update:  If you want to see the Chairman’s message regarding the D.C. Circuit’s decision, see http://www.nlrb.gov/news/nlrb-chairman-mark-gaston-pearce-recent-decisions-regarding-employee-rights-posting

OK the D.C. Circuit made a decision.  The D.C. Circuit has enjoined the National Labor Relations Board form implementing its new posting rule.  The D.C. Circuit granted the National Association of Manufacturers’ emergency motion for an injunction pending its appeal of the decision of the D.C. District Court.  The court noted that the Board had previously postponed operation of the rule and thus the Board’s argument that the rule should take effect during the pendency of the appeal had little merit.  The court indicated that the uncertainty about the Board’s decision to cross appeal mitigated toward preserving the status quo while the court decides if the Board has authority to issue a rule requiring posting of the poster.  Oral argument is set for sometime in September.

So what does that mean?  You don’t have to post the poster. Yet.

Friday I told you all to get ready to get your NLRB poster up.  That’s what I get for having a guest blogger.  Now, in Chamber of Commerce v. NLRB the U.S. District Court for the District of South Carolina, that’s right South Carolina, has ruled that the new NLRB rule that requires that the new NLRB poster be posted is invalid. The court held that Section 6 of the NLRA (the “Act”) provides that rules promulgated by the Board be “necessary to carry out” the other provisions of the Act.  The court stated that “finding that the challenged rule is ‘necessary’ to carry out the provisions of the Act would require the court to ignore ‘the statutory language as a whole.’”  Finally, the court stated “After utilizing the tools of statutory interpretation, the court finds that the Board lacks the authority to promulgate the notice-posting rules.”

So, do you have to put the poster up?  Well, the Board has not said yet.  No word as of the posting of this post if the Board intends to delay the posting requirement yet again. In fact, the Board’s website still says April 30 is the day.   Stay tuned, I’ll let you know as soon as I know if anything changes.

Special Thanks to Tara Kennedy for drafting this reminder.  Read more about Tara here.

By April 30, 2012, all employers covered by National Labor Relations Act must post a notice in the workplace to explain to employees their rights under the NLRA. If you are wondering whether the NLRA applies to you, the answer is likely yes. The NLRA covers private employers who have an impact on interstate commerce including manufacturing plants, retail centers, private universities and health care facilities.

The poster rule takes effect after being postponed twice because of lawsuits questioning the National Labor Relation Board’s authority to require employers to post the poster. The first court to hear the challenge was a district court in the District of Columbia. The district court determined that the Board had the authority to require employers to post the poster. However, the court also determined that the Board overreached its authority by making failure to post the notice an unfair labor practice and by possibly extending the six-month statute of limitations period for filing the unfair labor practice allegation.

You can read more about the NLRB Poster rule here and here. You can find a link to the required poster here.

According to yesterday’s online version of — ready for this — Computerworld (Yes, I actually found a website called Computerworld yesterday, even though I can barely make my e-mail work),   U.S. Senators Richard Blumenthal and Charles E. Schumer posted an open letter on Monday to the EEOC and the DOL. What, you might ask, are Senators Blumenthal and Schumer upset about?  Seems a growing number of employers are asking, well not really asking so much as demanding, that applicants provide their personal passwords to social media sites like Facebook and Google + as part of the interview process.

According to Computerworld, Senator Schumer said:

“Before this disturbing practice becomes widespread, we must have an immediate investigation into whether the practice violates federal law. I’m confident the investigation will show it does. Facebook agrees, and I’m sure most Americans agree, that employers have no business asking for your Facebook password.”

You can read the entire article here: http://www.computerworld.com/s/article/9225578/Senators_call_for_probe_of_employers_seeking_Facebook_info

So does it violate federal or, for that matter, state law to ask for passwords?  You can make a pretty good argument that it does. Under Michigan law, for example, it is illegal to ask questions that either directly or indirectly elicit information about membership in a protected category.

Facebook posts and “walls” tend to have a bunch of stuff that leads to information about protected categories, like how many kids you have, if you are married or what clubs you belong to. You can’t ask those questions, so the argument goes, so you can’t ask for my password to a site that has that information on it. That, I’m pretty sure, is what the EEOC will say to the Senators.

So, indirectly at least, you can make the argument that asking for the passwords may lead to information employers are not entitled to have. But that is not the only reason why employers are . . . how should we put this . . .  ill advised to demand these passwords.

The real reason is twofold:

First, what information (that is not illegal for an employer to have) do you really think you are going to find on Facebook? Are you going to find stuff that is actually related to a candidate’s ability to do his or her job? Does it really matter that Candidate A has a picture of herself with a beer in her hand? Does that mean that she can’t be a good computer programmer?  I don’t think so. I mean, who of us hasn’t . . .  Well, let’s not go there.

But second, and more importantly, asking for the password to a site like Facebook might lead to reenacting scenes from Platoon with Charlie Sheen.

I know you’re thinking I’ve lost my mind. I haven’t, I’m using an illustration. You have all seen the commercials: You start out being unhappy with your cable TV and end up having Charlie Sheen shooting at you with a crossbow from behind the ficus. I’m going to borrow that logic to show how really uncalled for it is for employers to demand passwords to private sites that are not likely to lead to useful information anyway:

When employers do ill-advised things, the press finds out and writes inflammatory stories.

When the press writes inflammatory stories, the public becomes outraged.

When the public becomes outraged, Senators become outraged.

When Senators become outraged, they write to the EEOC and hold hearings.

And when Senators write to the EEOC and hold hearings, they write overly broad laws that limit what employers can do.

Don’t let Senators write overly broad laws that limit what employers can do!

Don’t believe this can happen here? Sure it can. There are at least 70 bills pending in the current Congress that deal with online privacy or security in one way or another, from the Senate’s USA PATRIOT Act Improvements Act of 2011 to the House’s Do Not Track Me Online Act.  Most of these bills would have just faded away.  Not now.  Senators are pounding their fists on tables in outrage.

And if one of these bills does get passed and signed by the President, you can bet that it won’t just limit an employer’s right to ask for passwords. It may do things like prohibit monitoring of work computers. Or it may go even further.  So, don’t let Senators write overly broad laws that limit what employers can do.  Don’t ask for things you don’t need anyway.

Update 03/07/12:  The National Association of Manufactures and the National Federation of Independent Businesses have announced they intend to appeal Judge Berman Jackson’s decision. 

On Friday, Judge Amy Berman Jackson of the United States District Court for the District of Columbia, ruled that the National Labor Relations Board does have the authority to make a rule requiring employers to post a notice outlining employee rights under the National Labor Relations Act.  You can read more about the poster here and here.  Judge Berman Jackson had two basic questions in front of her:  1) Does the Board have the rulemaking authority to require private employers to post the poster; and 2) Does the Board have the rulemaking authority to set the penalties that it set for failure to post the poster?  Yes I know, the title of this post says “two out of three.” What’s the third?  Well, a couple of the plaintiffs filed a motion seeking to have the court decide if President Obama’s recess appointments to the NLRB valid?    The Judge did not deal with that question in her memorandum order, but separately ruled that the poster rule was promulgated by a quorum of Board members who were undisputedly authorized to make rules well before the recess appointments were made.

Judge Berman held:

 The Court holds that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the posting provision.  But it also holds that the provisions of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA are invalid as a matter of law.

 Finally, Judge Berman held that the invalidity of the enforcement mechanism in Subpart B of the rule did not invalidate the entire rule and that the posting requirement is severable and valid.

So, all in all, this is a win for the Board and the unions.  In fact, according to The Wall Street Journal, the General Counsel for the AFL-CIO said “While the judge invalidated two sensible enforcement mechanisms in the rule, her decision affirms that the Board has ample authority to enforce the notice-posting requirement on a case-by-case basis, . . .”  On the other hand, again according to The Wall Street Journal, the president of the National Association of Manufacturers said:  “We believe today’s decision is fundamentally flawed, . . .”  You can see the WSJ article here.

So, if you’re an employer, what does this mean to you?  It means you are going to have to post the NLRB poster by April 30, 2012.  If you want to see it, you can find the poster here.

If you want to discuss what your options are, give me a call.  You can find me here.

I’m going to start out this post with a disclaimer. I’m not a big fan of Texas. And I don’t mean the Dallas Cowboys, I mean the State of Texas. In fairness, I haven’t spent that much time in Texas, but the time I did spend there cost me a bundle.

You see, I once got a speeding ticket in Texas. I contend that I got a speeding ticket in Texas because I didn’t have a Texas plate on the rental car that I was driving. My wife, of course, says I’m an idiot and I got a speeding ticket in Texas because I was speeding. Seems to me that the Texans who were passing me on the highway when I got pulled over were going just a bit faster than I was, but the sheriff’s deputy was honed in on the out-of-state plate and it cost me a cool $300 bucks to learn a valuable lesson: Don’t go to Texas. Of course, what I should have learned was don’t speed, but that’s beside the point.

So a couple of weeks ago, when I was reading the ABA Journal I was not all that surprised to see an opinion from the Southern District of Texas that was, well, a bit surprising.  In a case called EEOC v. Houston Funding II, Ltd. et al., the EEOC claimed that the plaintiff, a nursing mother, was terminated after her maternity leave because she wanted to pump breast milk at work. Of course, her employer had a different story, claiming that the plaintiff was terminated because she had abandoned her job.

Now all of that is pretty routine. What really caught me was one little paragraph (well, it’s really two paragraphs) in the opinion. The court said:

“Even if the company’s claim that she was fired for abandonment is meant to hide the real reason – she wanted to pump breast milk – lactation is not pregnancy, childbirth, or a related medical condition. She gave birth on December 11, 2009. After that day, she was no longer pregnant and her pregnancy-related conditions ended. Firing someone because of lactation or breast pumping is not sex discrimination.”

Wow. Yes, I said it: Wow! Now I know it’s not fair to blame the entire state of Texas just because this decision came from a court in Texas, but I’m going to do it anyway. Remember, I got a $300 speeding ticket in Texas.

So here’s what we are going to do. We are not going to rely on this decision when an employee asks to have time and a place to pump breast milk. And there are a couple of good reasons for that, besides the fact that I believe the court made the wrong decision.  First, the plaintiff was fired in 2009. Since 2009, the Patient Protection and Affordable Care Act amended the FLSA to provide for break time for nursing mothers. You can read about that here and here. Second, not surprisingly, the EEOC is considering an appeal of this decision. And finally, the EEOC is putting a spotlight on the issues of pregnancy and caregiver discrimination. In fact, a couple of days ago the EEOC held hearings. The press release is here.  Commissioner Ishimaru stated:

“Discrimination against pregnant women and caregivers continues to be an issue of vital concern for the Commission. Employers should not make decisions based on stereotypes and presumptions about the competence and commitment of these workers. EEOC will vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers.”

So if you have not yet considered how you are going to handle the issue of an employee asking for time and a place to pump breast milk at work, now is the time —  before the EEOC answers the question for you.

In December, for the first time in more than 25 years, the Michigan Workers’ Disability Compensation Act saw some major changes.  These changes are widely considered to be advantageous for employers.  Among the significant changes:

1.         Wage Earning Capacity is Redefined

2.         A Connection Between Wage Loss and Disability is Required

3.         Must Establish Medically Distinguishable Pathology

4.         Adds to the Definition of Mental Disability

5.         Changes the “100-Week Rule”

6.         Extends the Period When the Employer Controls Medical Treatment

7.         Expands Credit for Unemployment Benefits and Qualifying Pensions

8.         Requires the Magistrate to Take Into Account the Affect of Any Internal Joint Replacement Surgery, Internal Implant or Other Similar Medical Procedure When Determining Whether a Specific Loss has Occurred

9.         Restructured Redemptions

10.       Adjusts the Calculation of Interest

Now, I’d like to be able to tell you all that I know all about the changes, but that just wouldn’t be true. Fortunately, I work at a law firm with someone who does. Geri Drozdowski practices in the area of Workers’ Compensation law and she wrote an excellent article explaining all of this for you.  In fact, I stole her headings for this post.

So, if you need an update on this important change in the law or if you are just curious, you can find Geri’s article at http://www.wnj.com/Publications/Michigans-New-Workers-Disability-Compensation-Ac