Archive for the 'Uncategorized' Category

Help! I’m losing my best people and I can’t replace them! – Part 2.

Last time we talked about why people leave their jobs.

So where does this all get us?  If we know that it is the soft skills that matter and if we know that managers frequently do things that cause good people to quit, how do we fix that?  What do we do?  There are tons of articles out there on what to do to engage employees and they all have some variation of providing a good onboarding system, and a mentorship program, and fostering teamwork, and having a training program for employees.  That is always the solution, right?  It has been a long time since I got my business degree and, granted, it is a BA and not an MBA, but it seems to me business schools shovel this stuff out like . . . well, you know what they shovel it out like.  You have all heard it before and some of you, myself included when I was still managing people, have said it.  “Our performance management system isn’t working?  Let’s buy a fancy new and really expensive ‘tool’ to track performance, that will fix the problem.”  And five years later we still have the same problem with a fancy tool.  I want to go back to something Mr. Peters said was part of the problem:  “too much reliance on the apparently ‘hard’ procedures of, say, six-sigma programs and not enough attention to those underlying, apparently ‘soft’ attributes such as the respect for and engagement of the workforce.”

Now look, I am not saying that fancy new tools to track performance are not valuable – they are.  But there is an old saying, I think it started in the computer industry:  “Garbage in, garbage out.”  And in this context, what that really means is that we are putting our resources in the wrong place.  If we assume Dr. Bradberry and Ms. Branham are correct and a majority of people who leave their jobs are really leaving their managers, and if we believe that Dr. Bradberry’s and Ms. Branham’s lists are at least close to the mark, what that should tell us is we need to put our resources in our managers and supervisors.

“Now we are talking.  Finally we are into the meat of it.  1300 words for Palazzolo to finally tell us how to keep our people!”  Relax, don’t forget Mr. Peters said, “Soft is hard.”  But I’m going to try to simplify so we all have some things we can start on right away.  I’m going to focus on three main topics:  Selection, Training and Measurement.


Now it all starts with figuring out what management’s job really is.  Far too often, when we need somebody to supervise widget makers, we promote the best widget maker. That, my friends, is exactly the wrong thing to do.  Being a good widget maker does not mean that you are a good supervisor of widget makers.  I wrote about this a long time ago, too.  I want you all to stop and go read that article.  You can find it here.  I’ll wait. . .   Ok, I’m glad you’re back.  Pretty good article if I do say so myself, right?  Anyway, back to making widgets or at least supervising those who do.

So if being the best widget maker does not make you a good supervisor, what does?  Well, that may vary from organization to organization, and it may depend on who is being supervised, right?  I mean a good plant supervisor on the production floor is not necessarily going to have the same skills as a manager in the accounting department, right?  Not so fast, my friend.  There may be slight variations, but what I am saying is that being a good supervisor or manager does have a common set of skills or, as my HR friends like to say, competencies that are common to all good supervisors.    Let’s go back to Dr. Bradberry’s and Ms. Branham’s lists of why people leave their jobs.  Dr. Bradberry says one reason people leave their jobs is managers “Hire and promote the wrong people.”  Ms. Branham says, “There is a mismatch between the job and person.”  So given that, one competency we need in a good manager is the ability to assess and evaluate talent.  Then we have, “They fail to develop people skills,” or put another way, “There is too little coaching and feedback.”   Don’t we then want somebody who knows how to communicate and give constructive feedback?  Maybe somebody who can manage conflict?  And finally, bad managers do “Not recognize contributions and reward good work” or make their “Employees feel devalued and unrecognized.”  Now I could go through both lists, put them all down here and ask you the same question.  How many of you have a supervisor job description that has any of these things as a competency or job duty or even mentions these?  If you do, good for you, you are ahead of the game.  If you don’t, why not?  But that is not the end, now is it?  Remember, “Garbage in, garbage out.”  So you have a nice shiny new job description that requires your managers to be able to communicate, and assess talent and deal with conflict in a fast-paced manufacturing environment blah, blah, blah!  Are you actually hiring people that have these skills?  Not if you are just hiring the best widget makers.  And this is where our friends from HR come in – are you helping management to see and assess these competencies?  Are you getting good candidates?  And when you get good candidates, do recognize this and hire them?  Promoting from within is a great goal, one all companies should aspire to.  But you have to promote the right people, with the right skill set.


OK, we have the right people in the door and they have all the skills we are looking for.  Now what do we do?  What we do is we make sure we have a culture that values and rewards enhancing and developing those skills.  And the only way to do that is train, train, train.  And here is where you know that I am serious.  I’m not talking about having us in to train about the law.  Yes, that is important and I want you to do that too, but that is not the most important thing.  We are talking about training supervisors and managers, and I mean all supervisors and managers, all the way up to the top.

And upper level management has to live that training too. You see, the only way to create a culture of excellence, one that values the skills we are looking for in our managers, is for upper management to support the training.  They have to show up.

The second thing we need to do is make this mandatory.  Knowing your job and developing the skills that you need to do it well should never be voluntary, it is part of your job.  So no “I’m too busy on the line” or “the month end report is due” excuses.  You show up and you participate or it will cost you.  Because we are evaluating you on this stuff.  And we will talk about that in a second.

And the final thing we need to do is make sure we are training on the right things.  Now as I said above, I am not talking about compliance training or harassment training here, although as we all know that is important too.  Especially in this climate.  What I am talking about here are the soft skills that Mr. Peters called so hard.  I’m talking about communication training, I’m talking about teaching managers to give constructive feedback.  I’m talking about teaching active listening skills.  And that is hard.  And the only way to make sure it sinks in is to practice it and make it an ongoing process.


Now we have the right people in the door and we have them trained on the right things. What do we do to wrap this all up?  We measure our progress.  And here is what I am talking about here. We evaluate our managers and supervisors on these skills.  Over the years, this has been one of the things that has confounded me the most about communicating with employees.  We have these expensive evaluation processes that I talked about – you know, the shiny new tool.  And because it is so expensive and because it is so hard to actually evaluate employees, we try to make these tools one size fits all.  You know what I mean, often there is a set of goals that we sit down and talk to employees about at the beginning of the year.  And then we have some competencies that are supposed to relate to what the employee is doing.  And not once in this whole process do we take into account the employee’s job description or even what the employee is doing.  So we end up with a review that does not take into account what the employee is really doing, that measures a set of competencies that may or may not even be important to the employee doing his/her job and that in the end spits out a bunch of data that is of limited use at its best.  Employees don’t like this process, it is demoralizing.  Supervisors don’t like this process, it is a pain.  And worst of all, we tie compensation to this farce of a process.  So why do we do it?  Great question, and if you don’t have a good answer, then stop.  Doing a performance review once a year is a pain, but it is a pain only once a year.  It is also, for the most part, a complete waste of time.  Unless you are going to do it right.  Get rid of your fancy tools and use the job description as the basis for your reviews.  Yes, that will be hard.  Remember, “Soft is hard.”

Or scrap the whole process.  Want your employees to be engaged and stick around?  Give them constant feedback.  It’s important, especially to the younger generation.  When they do something good, tell them.  When they do something not so good, tell them.  Then tell them why it was either good or bad.  And then talk with them about what they can do better or what they should keep doing well.  That’s really hard.

And finally, make sure you are giving them feedback on what matters.  How is the turnover rate?  When you do a 360, how is the supervisor rated by the people he/she supervises?  I know, no one likes these, but that is because before we did not give our supervisors the skills they needed to be successful.  Now that we have done that, we should not be afraid of the dreaded 360 review.  Now I know what you are all saying, “That’s great, but what about production goals and deadlines and all that stuff?”  Yeah, I get it, that is important too.  But if your managers are being good managers, then those numbers will follow.

Let me just wrap this up with one final thought.  It is going to seem a bit cliché, but I think it is true.  We have to give our managers and supervisors the tools they need to be good managers and supervisors.  And for the most part, we have not done that.   Because it is hard.  It is way easier to train supervisors on how to run the machine or how to do the report.  As we try to shift this, let me give you a place to start.  Let’s start to train our supervisors to treat people the way they want to be treated.  You know, the good old Golden Rule.  Hey, it’s a start.






Help! I’m losing my best people and I can’t replace them! – Part 1.

As most of you know, the lawyers at good old WNJ go to a lot of events that you all attend, and sometimes we are presenting at those events.  We do things like panel discussions and programs on everything from Terms and Conditions to protecting your Intellectual Property.  And we talk about the law and take questions.  Lately we have been hearing a common theme in these questions, something that is clearly on your minds.  Whether you work in communications or human resources or purchasing, you are telling us:  “I can’t find and keep talented people.”  From the skilled trades to engineers, talented proficient employees are in short supply.  Now WNJ can’t make more engineers for you and we can’t teach employees to be electricians or welders –  we are exceptional lawyers, but we are not magicians.  So let’s focus on what we can help you do.  What we can help you do is retain the talent you have.  And no, this is not another employment lawyer telling you to sign all of your employees to covenants not to compete, although in some cases that might be a good idea.

(And by the way, I wrote about this about two years ago.  Must be we were having a talent shortage then too.  You can read that article here.  Some of this is going to sound strangely familiar after you do, but that is only because I cut and pasted from that blog post.)

Instead, we are going to focus on other ways to retain employees.  Soft skills, if you will, that might help you keep your really good employees.  What do you do?  I know, just pay them more.  Easy enough, right?  Of course that is not easy and that is not the answer.  The answer is a whole lot harder than that.  Tom Peters, who I am sure you know is a highly respected author and leadership consultant, is known for saying:  “Soft is hard.”     What does Mr. Peters mean by that?  Well, let’s use his words:

Yet a closer look reveals that for every quality program success    there were scores of misfires—programs, often absorbing vast amounts of time and sums of money, that produced little or nothing in the way of better quality or improved financial results, and in some situations made a slumping organization even more sluggish.

Though it’s dangerous to make such an assertion, in my view there was a singular reason for the mixed bag of results; and it was predictable from our excellence research—too much reliance on the apparently ‘hard’ procedures of, say, six-sigma programs and not enough attention to those underlying, apparently ‘soft’ attributes such as the respect for and engagement of the workforce.

*  * *

In the end: Hard is soft. Soft is hard. The traditionally viewed ‘soft’ variables such as ‘institutional culture’ and ‘inspired leadership’ are the principal keys to success—or failure.

You can see Mr. Peters’ whole paper here.  It is worth a read.  So Mr. Peters, back in 2012, was talking about things like “institutional culture” and “inspired leadership” and he has built on these ideas over the years.  But he is not the only one.

In order to retain employees, seems to me the first thing we need to know is why do people leave their jobs?  Again, we can go back to “they can make more money someplace else” but that can’t be the answer.  Dr. Travis Bradberry, coauthor of the No. 1 bestselling book, Emotional Intelligence 2.0, and the cofounder of TalentSmart, in an article he originally published on LinkedIn, gives nine primary reasons why people leave their jobs, and pay is not to be found among them.  Dr. Bradberry first says that “People don’t leave jobs, they leave managers.”  Now I think that might be a bit too broad of a statement – clearly, some people do leave jobs where they have a manager they really like.  But this does raise a good point.  It is not always about the money.  In fact, it is rarely about the money.  Let’s go back to those nine things that Dr. Bradberry says are the worst things managers do that cause people to leave.  He says managers who lose good people tend to:

  1. Overwork good people.
  2. Not recognize contributions and reward good work.
  3. Don’t care about their employees.
  4. Don’t honor their commitments.
  5. Hire and promote the wrong people.
  6. Don’t let people pursue their passions.
  7. Fail to develop people skills.
  8. Fail to engage their employees’ creativity.
  9. Fail to challenge people intellectually.

You can see Dr. Bradberry’s whole article here – again, it is a good read.

In addition, in that blog post I wrote in 2015, I noted:

In her article Strategies for Retaining Employees and Minimizing Turnover, Sarah K. Yazinski, an Admissions Counselor at the University of Scranton, cites strategic planning consultant Leigh Branham, SPHR, who claims:

88% of employees leave their jobs for reasons other than pay: However, 70% of managers think employees leave mainly for pay-related reasons.  Branham says there are seven main reasons why employees leave a company:

  1. Employees feel the job or workplace is not what they expected.
  2. There is a mismatch between the job and person.
  3. There is too little coaching and feedback.
  4. There are too few growth and advancement opportunities.
  5. Employees feel devalued and unrecognized.
  6. Employees feel stress from overwork and have a work/life imbalance.
  7. There is a loss of trust and confidence in senior leaders.

Remember, it is here.

Now look at these two lists:  Quite a bit of overlap, right?  Could be we are on to something here.

Next time we will talk about what to do about all of this.

Leave it to the DOL to publish the regulations when I’m out – the Final Overtime Regs are here.

Well, leave it to the Department of Labor. They wait until I’m out of the office to issue new Regulations. That’s right, yesterday afternoon, the Department of Labor announced that the long awaited final Regulations under the FLSA will be issued today. I’m not going to read them today because I’m going to a baseball game. So let me give you the highlights that the DOL provided yesterday.

We all knew the salary level test was going up. The big question was how much. Would it be the 40th percentile/$970 per week that was in the proposed regulations or something else? How about a little of both. The Department of Labor stuck to its 40th percentile measure, but to throw a small bone to employers the final Regulations set the 40th percentile based on earnings of full-time salaried workers in the lowest wage census region instead of the 40th percentile of full-time salaried workers in the US. And that means . . . . drum roll please . . . the new salary level test is $913 per workweek. Annualized that’s $47, 476 per year.

The highly compensated test remains the same as in the proposed Regulations. It’s set at 90th percentile of full-time salaried workers in the country and comes out to $134,004 annually.

There is also an automatic updating provision in the Regulations. Beginning on January 1, 2020. the salary level tests will be reset every three years. The final Regulations also allow employers to include non-discretionary bonuses and other incentive payments including commissions to satisfy up to 10% of the salary level as long as the bonuses and incentive payments are paid at least quarterly.

The new Regulations go into effect December 1, 2016. So if you haven’t started thinking about what you’re going to do already, now is the time to do it.

You can find the DOL Fact Sheet here and the Q & A here. Or you can give us a call.

New Michigan Law Allows for Veterans’ Preference in Employment.

Wait a minute, it’s not Friday and this is not the FLSA, what is going on? Why am I sitting at my desk on a Saturday writing a blog post? Well, let me tell you. Late yesterday I got an email from one of our partners, Rob Dubault, a brilliant labor lawyer by the way, notifying me (and the other members of our practice group at good old Warner Norcross and Judd LLP) that Governor Snyder had just signed into law a new piece of legislation that applied to Michigan employers. I didn’t have time to read or write about it last night, so here I am.

So what is this new law that brings me into the office on a snowy Saturday in Michigan? It’s House Bill 5418, which will now be “known and cited as” the “Private Employer’s Veterans’ Preference Policy Act.” Well, what does this new law do? I’ll tell you what, it is so short that I’m just going to type the whole thing right into this blog post.

The People of the State of Michigan enact:

Sec. 1. (1) This act shall be known and may be cited as the “private employer’s veterans’ preference policy act”.

(2) As used in this act:

(a) “Private employer” means a sole proprietor, corporation, partnership, limited liability company, or other private entity with 1 or more employees.

(b) “Veteran” means an individual who meets 1 or more of the following:

(i) Has served on active duty with the armed forces of the United States for a period of more than 180 days and was discharged or released from active duty with other than a dishonorable discharge.

(ii) Was discharged or released from active duty with the armed forces of the United States because of a service‑connected disability

(iii) Was discharged or released from duty with other than a dishonorable discharge from service as a member of are serve or national guard component of the armed forces of the United States under an order to active duty, excluding active duty for training.

(c) “Veterans’ preference employment policy” means a private employer’s voluntary preference for hiring, promoting, or retaining a veteran over another equally qualified applicant or employee.

Sec. 2. (1) A private employer may adopt and apply a voluntary veterans’ preference employment policy.

(2) A veterans’ preference employment policy shall be in writing and shall be applied uniformly to employment decisions regarding the hiring or promotion of veterans or the retention of veterans during a reduction in the workforce.

This act is ordered to take immediate effect.

So here is what it does: It allows a private employer to put in place a written policy that gives preference to veterans in hiring, promotions and retention during a reduction in force.

Three things I want you to notice here: First, this law goes into effect immediately. I’m not going to bother with the why of governmental procedure in Michigan, just know that the law is now law. Second, a policy giving preference, if you are going to do one, has to be in writing. No unofficial policy that you can rely on, a written policy. And finally, take notice of the word, “MAY”. That’s right, the law does not require an employer to give preference, it allows an employer to do this.

So if you want to do this, give Rob or me a call.  You can find Rob here.

Screening your employees to see if they are stealing isn’t stealing time.

You have a bunch of employees that work in your warehouse. You also have a bunch of really cool stuff that you ship from your warehouse. Apparently, you don’t trust your employees, because at the end of each shift you require your employees to wait around while you conduct security screens of each employee to make sure that they are not walking out of the warehouse with your really cool stuff. Do you have to pay your employees for the time they spend (up to 25 minutes each day by the way) waiting to go through your security screen? According to the Supreme Court the answer is a big old NO!

Yesterday, SCOTUS issued its opinion, a unanimous opinion by the way, in Integrity Staffing Solutions, Inc., v. Jesse Busk et al., 574 U.S. __ (2014). You can see it here.

“Integrity Staffing Solutions, Inc. provides warehouse staffing to throughout the United States. Respondents Jesse Busk and Laurie Castro worked as hourly employees of Integrity Staffing at warehouses in Las Vegas and Fenley, Nevada, respectively. As warehouse employees, they retrieved products from the shelves and packaged those products for delivery to Amazon customers.”


According to the opinion, at the end of each shift Integrity requires its employees to pass through a metal detector. From the sounds of it, it was like boarding a plane without the pat down or full body scan. You know, you take your keys and wallet and stuff out of your pockets and walk through a metal detector. We do that all the time now, don’t we, at airports, going into stadiums, even at some schools. No big deal, right? Seems like it was a big deal for the employees. They filed suit claiming that the failure by Integrity to pay for the time it took for these screens, up to 25 minutes per day according to the plaintiff’s, should have been paid under the FLSA. They argued that the screenings were to prevent theft and thus “solely for the benefit of the employers . . . .” Id.

SCOTUS disagreed. First, the Court pointed to the Portal-to-Portal Act and reminded us that “activities which are preliminary to or postliminary to said principal activity or activities” are excluded from the FLSA’s coverage. We talked about this a while ago. Remember Donning and Doffing? Check it out here. Then the court reminded us that principal activity includes activities that are an integral and indispensable part of the principal activity. The question, according to the Court, “Was the waiting time for the screen an ‘integral and indispensable part of the principal activities’ of the employees?” If it is, it is paid time. If it is not, it is unpaid time.

The Court then said that an activity is “integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Like, the Court said, “showering and changing clothes” after working with toxic chemicals, or “sharpening knives” in a meat packing plant but not “donning protective gear” in a poultry plant.

Ultimately, the Court held that the security screenings at issue were not compensable. In short, the company does not have to pay the employee’s while they wait for their turn to go through the metal detector.

SCOTUS said, quite logically, screenings were not “principal activities” pointing out that the company did not employ the employees to be screened. They employed them to ship products. Then the Court noted that the screenings were not “integral and indispensable” to shipping products. The Court stated that the employees could have very easily continued to ship products even if the screenings stopped. They also could have walked off with a bunch of really cool stuff form the warehouse. The Court didn’t say that I did and Integrity must be worried about it of why do the screens?

Then the Court noted that the 9th Circuit erred when it focused on the fact that the employer required the screenings stating: “If the test could be satisfied merely by the fact that an employer required an activity, it would sweep into “principal activities,” the very activities that the Portal-to-Portal Act was designed to address.” Id. Makes sense again right? I mean like I said before, who would drive to work if their employer didn’t make them do it? Especially today when so many jobs can be done remotely. And finally, the Court rejected the employee’s argument that they should get paid for waiting simply because the employer could, if they wanted, shorten the waiting time. Basically, the court said deal with it at the bargaining table it is not covered by the FLSA.

Again, you can see the whole opinion here if you are interested.  Oh and by the way, I wrote this one, we will get back to Emily next time.

Overtime and the Workweek. A short but important post.

Let me start this week with an editorial comment.  This post is shorter than the last couple have been.  Only about 850 words.  The first draft was like 2200 words.  In fact, this post and the one before were combined into a single post.  Too long, right?  So I cut them in half and I’m working really hard at keeping them shorter.  Two reasons for that.  One, easier for you to read.  Who wants to read 2000 words on the FLSA in a single sitting?  Second, I’m really busy and this is hard work.  So I’m going to try to go back to shorter posts, say 800 or 900 words.  Hope that is OK with the three of you reading this thing.

So, what is the workweek we spoke of last time?  First and foremost, the workweek is the basis for overtime payments under the Act.

If in any workweek an employee is covered by the Act and is not exempt from its overtime pay requirements, the employer must total all the hours worked by the employee for him in that workweek (even though two or more unrelated job assignments may have been performed), and pay overtime compensation for each hour worked in excess of the maximum hours applicable under section 7(a) of the Act.  In the case of an employee employed jointly by two or more employers (see part 791 of this chapter), all hours worked by the employee for such employers during the workweek must be totaled in determining the number of hours to be compensated in accordance with section 7(a).  The principles for determining what hours are hours worked within the meaning of the Act are discussed in part 785 of this chapter.

29 CFR § 103.

In addition, it is a single workweek that determines overtime payments.  No averaging over workweeks.  I can hear you now.  “I have an employee who worked 30 hours last week and 50 hours this week and that equals 80 hours over the two weeks so I don’t have to pay any overtime, right?”  Wrong.  Each workweek stands alone (with an exception, a very narrow exception, for certain health care occupations).  29 CFR § 104.’  “So, come on, what is a “workweek?’”

An employee’s workweek is a fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. For purposes of computing pay due under the Fair Labor Standards Act, a single workweek may be established for a plant or other establishment as a whole or different workweeks may be established for different employees or groups of employees.

* * *

29 CFR § 778.105 (emphasis added).


Got that?  So, my handbook says the “normal workweek is Monday from 8 a.m. to Friday at 5 p.m.”  Good enough?  NO.  OK, how about “the workweek starts with the first shift on Sunday evening and ends with the last shift on Saturday night.”  Good enough?  NO.  Neither of these meet the definition.  Here is one that does.  “For purposes of computing overtime, the workweek begins at 11:00 p.m. Saturday and ends at 10:59 p.m. the following Saturday.”   That meets the definition.  Pick whatever time or day you want to start it but that is the way the workweek for overtime should be expressed.  I don’t care when your office is open or when your first shift starts for the week, you have to follow the definition in the Regs.

So, once you set the workweek, can you change it?  Yes, you can, but only within limits.  29 CFR § 778.105 goes on to state:

Once the beginning time of an employee’s workweek is established, it remains fixed regardless of the schedule of hours worked by him. The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of the Act. The proper method of computing overtime pay in a period in which a change in the time of commencement of the workweek is made, is discussed in §§778.301 and 778.302.

Oh, and one last thing, when do I have to pay overtime?  Well, you pay it on the regular pay date for the workweek in which it is earned.

There is no requirement in the Act that overtime compensation be paid weekly. The general rule is that overtime compensation earned in a particular workweek must be paid on the regular pay day for the period in which such workweek ends. When the correct amount of overtime compensation cannot be determined until some time after the regular pay period, however, the requirements of the Act will be satisfied if the employer pays the excess overtime compensation as soon after the regular pay period as is practicable. Payment may not be delayed for a period longer than is reasonably necessary for the employer to compute and arrange for payment of the amount due and in no event may payment be delayed beyond the next payday after such computation can be made. Where retroactive wage increases are made, retroactive overtime compensation is due at the time the increase is paid, as discussed in §778.303. For a discussion of overtime payments due because of increases by way of bonuses, see §778.209.

29 CFR § 778.106.

And by the way, the word that is really important here is “CANNOT.”  You don’t get to wait to pay overtime just because you want to, or it is inconvenient, or for any other reason than you can’t actually figure it out because you don’t know how much it is.  And that is the basic rule.


“Don’t give too much for the whistle.”

This, however, was afterwards of use to me, the impression continuing on my mind; so that often, when I was tempted to buy some unnecessary thing, I said to myself, Don’t give too much for the whistle; and I saved my money.

The Whistle, Benjamin Franklin (emphasis added).  See

Let me start by saying this post has nothing to do with Mr. Franklin’s quote, or his essay The Whistle, but the quote has some special meaning to me, and both the quote and the post do mention whistles, and this is my blog, so what the heck.  And thanks Doc, we haven’t forgotten.

The Michigan Whistle Blower Protection Act protects employees who report or are about to report, verbally or in writing a violation or suspected violation of a law, regulation or rule of the United States or the State of Michigan to a public body.  MCL §15.362.  So what does report or about to report mean?  Well, in Hays v. Lutheran Social Services of Michigan, the Court of Appeals gave us some guidance.  The employee in this case was a home health care worker and she had a patient who liked to smoke dope in his home while she was working.  Seems the employee was worried that she might get in trouble so she called a local Narcotics Enforcement Team and asked about what her liability might be if she failed to report the use of illegal drugs.  She provided no other information to the “public body.”  Her employer found out about the call and terminated her employment for violating its confidentiality policies.  Of course, the employee sued claiming protection under the Whistle Blower Protection Act.  She claimed her call to the Narcotics Enforcement Team was a “report” under the Act.

The Court of Appeals disagreed and found that the employee had not made a “report” under the Act.  Seems the Act does not actually define report so the court went to the dictionary:

While the WPA does not define the term ‘report,’ courts may consult dictionary definitions when giving undefined statutory terms their plain and ordinary meaning.  Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002).  Accordingly, Random House Webster’s College Dictionary (2005), defines ‘report’ as ‘a detailed account of an event, situation, etc., [usually] based on observation or inquiry.’

Because the employee was only concerned about her liability and did not provide the “public body” with enough information to conduct an investigation there was, according to the court, no “report” under the Act.  The court put it this way:

[C]ategorizing plaintiff’s behavior as a “report” under the WPA would not further the purpose of the statute, namely, to protect the public by encouraging reporting of illegal activity.  Plaintiff’s phone call did not provide law enforcement with the means to investigate Client A’s marijuana use or to protect the public from such behavior.  Plaintiff’s only concern was to obtain information about her hypothetical liability, not to provide law enforcement officials with any concrete facts from which they could actually investigate or enforce the law.  Thus, plaintiff failed to establish that she made a report under the WPA and having failed to establish a prima facie case, defendant was entitled to summary disposition.

If you want to read more, including a link to the case, head over to our sister blog One Court of Justice.



I’m pretty sure you have heard about this one.  Can’t open a paper without reading one side or the other.  Fortunately we have an expert.

Rob Dubault, a partner in our Muskegon office wrote and sent out to our clients an e-alert.  There is one update, of course. After  Rob wrote this yesterday afternoon, the Governor signed the bill.

Here you go, and thanks, Rob:

Michigan Becoming ‘Right to Work’ State

Michigan, the state recognized as the birthplace of the modern labor movement in America, will soon become the 24th Right-to-Work state. This afternoon, the Republican-controlled state legislature passed Right-to-Work legislation, which will allow workers in a collective bargaining unit the choice of opting in or out of union membership.

Under the legislation, which applies to public- and private-sector unions (with the exception of police and firefighter unions), an employee can no longer be required to join a union and pay dues as a condition of employment. Existing contracts that require employees to join or pay dues to a union are exempted until they are re-negotiated or extended. Senate Bill 116 and House Bill 4003, labeled “Freedom to Work” by supporters, are now on their way to Republican Governor Rick Snyder’s desk. The Governor has said he plans to sign the legislation. Passage occurred as organized labor conducted one of the largest protests ever seen in the Capitol City.

The Governor and legislative leadership agreed to exempt police and firefighter unions over concern about Public Act 312 of 1969, which calls for binding arbitration to prevent a strike. In addition, the Governor and legislative leaders were concerned about the potential for dissention within the ranks of those who risk their lives for public safety. Critics of the legislation and of the carve out for police and firefighters say Public Act 312 has nothing to do with joining a union or paying dues and that there are other union members in different occupations who also risk their lives for public safety but are not exempted.

If you have questions about this legislation or another labor-related legal development, please contact Rob Dubault ( or 231.727.2638) or any other member of the Labor Law Group at Warner Norcross & Judd.


On October 12, 2012 the EEOC issued a Q & A on how Title VII and the ADA may apply to employees and applicants who are the victims of “domestic or dating violence, sexual assault, or stalking.”  What is interesting about this particular Q & A is that Title VII and the ADA don’t classify as the EEOC states “people who experience domestic or dating violence, sexual assault, or stalking” as members of a protected category.  In fact, in the Q & A the EEOC specifically points this out saying:

“Because these federal EEO laws do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked.”

Despite this the EEOC apparently felt that individuals who are victims of this type of crime have been discriminated against and that this discrimination does implicate people who are protected by Title VII and the ADA.  In the Q & A the EEOC gives several examples of how persons who are victims of domestic violence, sexual assault and stalking might be discriminated against by employers.  For example:

An employee’s co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women’s bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal e-mails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken.

In this case, the employee is being sexually harassed by a stalker in the workplace.  Of course, the employer would have an obligation to see to it that the harassment ended.  In another example:

An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.

Here the EEOC illustrates how a victim of sexual assault may, as a result of a subsequent disability, be entitled to protection under the ADA.

Employers may of course wonder how to react to this new guidance. You don’t have to add victims of domestic violence to the list of protected categories in your EEOC policy and you don’t need to add a bunch of examples to your handbook as I have seen suggested.  You do need to continue to do what you have always done, enforce your policies fairly and make sure your supervisors and manages are treating everyone, and I mean everyone, fairly.  Make sure you’re your supervisors and managers are fully trained on what is discriminatory.  You see Title VII, unlike say the NLRA, is a pretty common sense statute.  And if you “follow the golden rule” and treat everyone like you want to be treated yourself, and enforce your policy when there is a violation then you should be OK.

Are you one of these? Time to File your EEO-1

Tara Kennedy, an associate at WNJ wants to remind all of you to file your EEO-1.  You can read more about Tara at:

Are you one of the following?

  • A private employer subject to Title VII of the 1964 Civil Rights Act and employs 100 or more employees;
  • A private employer subject to Title VII of the 1964 Civil Rights Act with fewer than 100 employees, that is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees; or
  • A federal contractor with 50 or more employees and a “government contract, subcontract or purchase order amounting to $50,000 or more.”

If you are, then you must file a Form EEO-1 with the Equal Employment Opportunity Commission (“EEOC”). The deadline for filing the Form is September 30, 2012.

Generally speaking, Form EEO-1 is used to gather data on the race, ethnicity, and gender of an employer’s workforce. The EEOC uses the data it collects to support civil rights enforcement and to analyze employment patterns within companies, industries and regions. If you are a federal contractor, then the Office of Federal Contract Compliance Programs (“OFCCP”) will use the data to select facilities for compliance reviews, selecting facilities where the data shows systemic discrimination is the greatest. Submitting employers are allowed to use employee data from any pay period from July through September of the current survey year.

The EEOC’s preferred method that employers use to file the Form EEO-1 is online. The Form, along with instructions on how to file it can be found here. If you have any questions about the Form EEO-1, or any other employment-related matter, please feel free to contact any member of our Labor and Employment Law Practice Group.

Next Page »