Nemeth Bonnette Brouwer Employment Blog

On the morning of September 20, 2012, Keith Readus was working at an automobile assembly plant when co-worker Jeffrey Hunt stabbed him to death. Hunt fled the scene and later committed suicide. Readus’s son, Keith, then sued his father’s former employer for negligently hiring/re-hiring Hunt. He alleged the employer knew about Hunt’s history of violent conduct, including “threats of physical harm against coworkers, carrying a weapon in the workplace, and being arrested and convicted after physically assaulting another individual in 1997.” Estate of Readus by Gardner v. Chrysler Grp., LLC, No. 338273, 2019 WL 637281, at *1 (Mich. Ct. App. Feb. 14, 2019).

The Michigan Court of Appeals recently weighed in on litigation initiated by the Feiger law firm on behalf of two women against the Morse law firm and Michael Morse as an individual. See Lichon v Michael Morse/Michael J. Morse, P.C. and Smits v. Michael Morse/Michael J. Morse, P.C.  Two lower court judges (one from Wayne County and one from Oakland County) had ruled the women were required to arbitrate their sexual assault claims against Michael Morse, the individual. The Michigan Court of Appeals held otherwise in a 2-1 decision

On March 7, 2018, the Sixth Circuit Court of Appeals (covering Michigan, Ohio and Tennessee) held that Title VII prohibits discrimination against an employee because of his/her transgender status. EEOC v. R. G. & G. R. Harris Funeral Homes, Case No. 16-2424.  Just weeks before, on February 26, 2018, the Second Circuit (covering New York, Connecticut and Vermont) held that Title VII also prohibits discrimination by an employer on the basis of sexual orientation.  Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018). Our firm covered the lower court opinions in a prior blog (July 26, 2017).

While most of us are focused on Tax Day as the next major federal filing deadline, large employers and federal contractors should not lose sight of March 31 – the deadline for filing EEO-1 reports. For those who are unfamiliar, the EEO-1 report is a compliance survey mandated by the Equal Employment Opportunity Commission (EEOC) under its regulations implementing Title VII of the Civil Rights Act. Through this report, the EEOC collects data on the race, ethnicity, and sex of private-sector employees, which is subdivided by job category. The EEOC will use this data to analyze job patterns of women and minorities in private industry in order to guide enforcement efforts. To this end, the information included in an employer’s EEO-1 report may be used in litigation against that employer.

On July 26, 2017, the White House announced transgender individuals would no longer be allowed to serve in the military and provided guidance to the U.S. Department of Defense (“DOD”) consistent with that announcement.  On August 25, 2017, President Trump sent a memo to the DOD with further instructions that the DOD should stop allowing transgender individuals to enlist.  The ACLU along with pro bono law firms have challenged these actions.  On August 28, 2017, lawsuits were filed alleging violations of the United States Constitution by failing to provide the transgender community with equal protection of the laws and by treating them more harshly than other individuals. 

Earlier this month, a Florida Appeals Court overruled a lower court decision finding that a former Uber driver was eligible for unemployment benefits. The Appeals Court deemed the Uber driver an independent contractor, making him ineligible for unemployment. Meanwhile, back in Michigan, a new law that goes into effect on March 21, 2017 will take the issue out of Michigan Courts, at least for ridesharing companies. Nemeth Law founder Patricia Nemeth explains that the Michigan Limousine, Taxicab and Transportation Network Company Act defines drivers in these gig economy networks as independent contractors, assuming select criteria are met.

In what appears to be the first appellate court directly ruling on this issue, a Florida state appeals court ruled last week that Uber drivers are independent contractors and not employees.

On November 16, 2016, a federal court in Texas issued an order permanently prohibiting the Department of Labor (DOL) from enforcing its new “Persuader Rule.” The DOL’s Persuader Rule interprets a provision of the federal Labor-Management Reporting and Disclosure Act (LMRDA) that requires employers and consultants hired to assist in communicating and advising employees of their rights and the law during a union campaign, to report their business relationship.

Now that the election is over and President-elect Trump will take office, employers may be wondering how they will be affected. Who Trump will nominate to the U.S. Supreme Court, what legislation will be passed by Congress, and what regulatory rollbacks will occur are currently all up in the air. One way he can make an immediate impact from day one is through Executive Orders (EOs). Executive Orders have long been used by Presidents to manage operations within the federal government. President Obama used them to make sweeping changes in requirements for federal contractors. President-elect Trump has indicated that reversing many of Obama’s Executive Orders will be among his first acts.

Fast food giant McDonald’s recently agreed to pay $3.75 million to settle a lawsuit for wage and hour violations allegedly committed by one of its California franchisees. The federal lawsuit, filed in 2014 by franchisee employees, alleged that McDonald’s was liable as a joint employer under California law.

Barely two months before the Department of Labor’s (“DOL”) new overtime regulations become effective on December 1, 2016, Michigan and 20 other states are collectively challenging their constitutionality and legality. The lawsuit, along with a similar lawsuit filed by 56 local, regional and national business groups, seeks a court order holding that the regulations are unlawful and unenforceable.

Bills have also been introduced in the House of Representatives and the Senate that would delay the December 1 effective date by 6 months.

Remember the I-9 forms you are supposed to have your employees sign within three days of their start date? If you haven’t been taking them seriously, now’s the time to do so. Effective August 1, 2016 the minimum penalty per violation increased from $110 to $216 and the maximum penalty soared to $2,056 from $1,100 per violation. It’s a rapid way to adjust for inflation! The financial penalty increase presents a strong reason to conduct an internal I-9 form audit; Nemeth Law founder Patricia Nemeth explains.

Unions can now petition to hold a union election with temporary and staffing company employees, along with the permanent employees of a company contracting with the staffing company, in a single union election. Because the employment services industry, which includes employment placement agencies and temporary help services, is “one of the largest and fastest growing industries in terms of employment,” the significance of this decision cannot be overstated.

The routine process of filling out an I-9 form when hiring a new worker could soon become costly for unwary employers. Starting August 1, 2016, penalties for I-9 paperwork violations will nearly double. The increased penalties were spurred by a new law which required federal agencies to increase the level of civil monetary penalties they issue to adjust for inflation. (See, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015)

In the wake of what has been condemned as the worst terror attack on U.S. soil since 9/11, we should all be reminded of our duty to respond appropriately to suspicious behavior. Media outlets are now reporting that Omar Mateen worked as a security guard in Florida for British firm G4S since 2007. According to news reports, in the years prior to the attack in Orlando, at least one former co-worker had made complaints to management at G4S that Mateen used racial, ethnic and sexist slurs and talked about killing people. Although G4S is not responding to questions about Mateen’s conduct raised by the former co-worker, employers should take a moment to make sure they  have procedures in place for reporting and responding to complaints about employee behavior, whether through a non-harassment/discrimination policy or procedure or a non-violence policy or procedure.

The Department of Labor recently revised the Occupational Safety and Health Act regulations to increase scrutiny on employers by (1) publishing employers’ injury records on the internet, (2) providing greater anti-retaliation protections for employees who suffer work-related injuries or illnesses, and (3) imposing new requirements on employers’ for reporting work-related injuries or illnesses. The new regulations take effect on August 10, 2016 and will be phased in over the next three years.

On Monday, the Equal Employment Opportunity Commission (EEOC) finalized its wellness program regulations under both the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The regulations go into effect in January 2017, and apply to all workplace wellness programs, including those provided to employees outside of the employer’s health plan. The final regulations closely track the EEOC’s proposed rules and will generally allow employers to provide certain limited incentives in exchange for employees providing health information or undertaking medical examinations as part of a voluntary wellness program.

On May 11, President Obama signed into law the Defend Trade Secrets Act of 2016 (DTSA). The DTSA provides the first federal civil claim for misappropriation of trade secrets. Previously, employers had to rely on a patchwork of state laws to bring such claims. Now, employers will have access to the federal judiciary. Not only will this allow the federal court system to craft a more consistent body of law, it will make it easier for large companies to protect trade secrets across the nation. In addition, the DTSA provides a host of new remedies for employers to protect their trade secrets, as well as new protections for employees that employers must be aware of.

April 14, 2016 marked one year since the National Labor Relations Board (NLRB) enacted new rules truncating union representation proceedings. The NLRB celebrated this anniversary by releasing new data comparing representation case filings, processing and results under the first year of the new rules as compared with the same period one year prior.

Biological gender or gender identification? The question is gaining increased importance when it comes to employers, currently with the topic of public restrooms. Following backlash from guidance from the Michigan Department of Education on restroom options for LGBT students and a recent North Carolina ordinance, Patricia Nemeth, founder of Nemeth Law, looks at the potential impact on employers and workplace restrooms.  Recent trends indicate the public restroom battle will quickly move to private restrooms and employers should have a plan of action in place with an emphasis on gender identity for bathroom preference.

All is not well with wellness plans. The EEOC, fearing employers can use employee health data gained through employer wellness programs to discriminate against employees, recently issued new regulations for employer wellness programs. Patricia Nemeth, founding partner of Nemeth Law, highlights the 4 key EEOC regulations:

1. Wellness plans must have a reasonable chance of improving an employee’s health

2. The program must be voluntary for employees

3. The employer must notify employees if the wellness plan is part of the employer-sponsored health insurance plan

4. Wellness plans must provide reasonable alternatives for disabled employees who are unable to participate

The Equal Employment Opportunity Commission (EEOC) recently filed two suits in federal court alleging that employers committed unlawful sex discrimination on the basis of sexual orientation under Title VII. These lawsuits go against well-established federal court precedent that sexual orientation is not a protected class under Title VII. Nevertheless, as of last summer, the EEOC has taken the position that sexual orientation discrimination is, in fact, discrimination because of sex and is thus protected under federal law.

Last May, Nemeth Law wrote about the Equal Employment Opportunity Commission’s (EEOC) recent proposed regulations providing guidance to employers on how the Americans with Disabilities Act (ADA) applies to employee wellness programs.  Since then, there have been some notable updates.  First, the EEOC published another set of regulations regarding the impact of the Genetic Information Nondiscrimination Act (GINA) on wellness program incentives.  Second, a decision in a federal court case out of Wisconsin provides some insight into how courts could apply existing law to wellness program designs.

With the mosquito-borne Zika virus rampant in South and Central America, it’s not surprising that dozens of cases have been reported in the U.S. from recent travelers to those geographic areas. What does this mean for employers doing business in countries where the Zika virus is prevalent? From opt—out travel plans to tips on avoiding gender discrimination, Nemeth Law founding partner Patricia Nemeth looks at how employers should handle the issues raised by the Zika virus without running afoul of the law.

Starting January 1^st of 2016 (right around the corner) Michigan’s minimum wage will increase from $8.15 per hour to $8.50 per hour with a corresponding revision to the mandatory minimum wage poster. Keep in mind that this is only the first of multiple scheduled minimum wage increases which will take place over the next few years as required under Michigan’s Workforce Opportunity Wage Act. In 2017 the minimum wage will increase to $8.90 per hour and then to $9.25 per hour in 2018. Starting in 2019, the minimum wage will be adjusted annually to reflect inflation.

In a surprising move, Patricia Smith, the Solicitor of Labor for the Department of Labor (DOL), recently announced that the DOL’s contentious overtime regulations may not be released until late 2016. The DOL received approximately 270,000 comments relating to the regulations which may, in part, be reason for the delay. The proposed regulations, issued in July of this year, are the cause of significant concern for many employers and for good reason. As it currently stands, when the regulations go into effect the minimum salary basis for exempt employees under the traditional “white collar” exemptions (executive, administrative, and professional employees) is set to more than double from the current $455 per week ($23,660 per year) to $970 ($50,440 per year). In addition, the salary basis threshold will automatically increase every year thereafter to keep pace with inflation. Prior to the DOL’s recent announcement to extend the effective date, final regulations were expected to be implemented in early 2016.