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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

Court Says ACLU Can’t Blow Smoke Over the Real Purpose of the Michigan Medical Marijuana Act.

If you follow this blog you might remember (unless you take advantage of this statute and then you might not remember) that back in July we posted on the first challenge to an employment termination supposedly in violation of the Michigan Medical Marihuana Act. See MCL 333.26421 et. seq (MMMA).

I told you before, by the way, and I’ll tell you again I did not spell Marijuana with an ‘h’ instead of a ‘j’ —  the Michigan Legislature did. I don’t know why.  And back in the July post we pointed out the incongruity in the MMMA that the courts were going to have to deal with.

At that time I wrote:

“Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business . . . for the medical use of marihuana . . . .”

“Seems pretty clear. You can’t fire someone for using medical marihuana, end of story, right? Not so fast, my friends. You see, Section 7 of the Act states:  “(c) Nothing in this act shall be construed to require: . . . (2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”

Well, the U.S. District Court for the Western District of Michigan, Southern Division (and yes, that is a mouthful) dismissed the lawsuit brought by Joseph Casias and the ACLU against Wal-Mart.  Mr. Casias had alleged that he was discharged by Wal-Mart in violation of the MMMA and in violation of Michigan public policy.  The opinion is pretty straightforward.  After dealing with some procedural issues that are really only interesting to lawyers, the Court got right into an analysis of the statute and whether Mr. Casias had a cause of action against a private employer making a personnel decision.  The Court noted that Mr. Casias put forward two theories for his argument that the MMMA prohibited the termination of his employment:

First, Plaintiff argues the MMMA provides him with an implied right of action. Even Mr. Casias acknowledges his chances on this theory are remote, given the strictness of the current test in Michigan case law. See Lash v. City of Traverse City, 479 Mich. 180, 192-93 (2007) (a private right of action cannot be inferred without evidence of legislative intent). Under his second theory, Mr. Casias’s cause of action stems from the defendant’s alleged violation of the public policy of Michigan, as found in the MMMA.

In the opinion issued Friday, the Court disagreed with both of Mr. Casias’ theories.  Judge Jonker first stated:  “The fundamental problem with Plaintiff’s case is that the MMMA does not regulate private employment. Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state.”  Judge Jonker went on to note that Mr. Casias public policy argument would confer on medical marijuana patients rights, to this point conferred only on a select group of people based on immutable characteristics like race, sex and religion.  Judge Jonker stated:  Further, the MMMA does not indicate a general policy on behalf of the State of Michigan to create a special class of civil protections for medical marijuana users.”  You can see Judge Jonker’s opinion here.

Ultimately the Court concluded that:

The MMMA [is]meant to provide some limited protection for medical marijuana users from state actions, primarily arrest and prosecution. Even the scope of that protection is unclear and limited. . . . Nothing in the language or the purpose of the MMMA indicates an intent of the Michigan voters to regulate private employment, and the MMMA does not address private employment directly. Whatever protection the MMMA does provide users of medical marijuana, it does not reach to private employment.

So, Mr. Casias stays fired, for now.  And your drug testing policy has not “gone up in smoke,” for now.  Why do I say “for now,” you ask?  Well, for one thing, this case was decided by a Federal Court. A Michigan Court might have a different interpretation.  And, the ACLU says it will appeal.

According the Wall Street Journal Law Blog:

The American Civil Liberties Union, counsel to Casias, has said it will appeal. “Today’s ruling does not uphold the will of Michigan voters, who clearly wanted to protect medical marijuana and facilitate its use by very sick people like Joseph Casias,” the ACLU said in a statement. “A choice between adequate pain relief and gainful employment is an untenable one.”

You can see the WSJLB post at

So, while this is obviously a positive outcome for employers, it is not necessarily the last word on the MMMA.  If you have any questions about your policy or if you need one, as always, give us a call.

Let’s Start “Regarding” People for a Change.

So it’s a new year — 2011 and all that, and yes I know that we are already 20 days into the new year and yes I know this is my first post, but we have been making some changes here at good old WNJ.

The first one you might have noticed is we changed the name of the blog.  Yep, no more NegotiumLex!  Now, we are Michigan Employment Law.  How come?  Well let me tell you how come:  It took me some time to face up to it but NegotiumLex is a stupid name.  I didn’t think it was when I started all this, I thought it was kind of cool.  Latin and all that!  Of course no one speaks Latin and no one reads Latin and so no one found the blog.  So, we are going to go with something a bit more, shall we say descriptive?  That means that if you are one of the three people who has us bookmarked as one of your favorites, change your bookmark.  Now you can find us at

Now what else can we change?  I have an idea, how about our goals.  I was reading through some twitter feeds this morning, (yep, you can find me on twitter too @ZoEmploymentLaw, and yes again, a new twitter name, seeing a pattern here are we?) and I came across an article at CNNMoney announcing the Fortune 100 Best Companies to Work For.  You can find the post at

Number 1 on the list (drum roll please) . . .   SAS.  Not only is SAS (a software company headquartered in North Carolina) #1 but it has been on the list for 14 years.  This is not a “mega” company with tens of thousands of employees and tens of billions of dollars.  In fact, the post classifies SAS as a midsize company with about $2 billion in revenue in 2009 and about 5,600 employees.  So what are they doing right?  Why are their people so happy?

Well, they do have some great benefits.  In fact, the post claims “Its perks are epic: on-site healthcare, high quality childcare at $410 per month, summer camp for kids, car cleaning, a beauty salon, and more — it’s all enough to make a state-of-the-art, 66,000-square-foot gym seem like nothing special by comparison.”  But that is not what jumped out at me.

What jumped off of the screen when I read the short post was how one manager at SAS described the working experience.  According to CNN this manager, who is not named, said people were happy because:  “. . . they feel regarded — seen, attended to and cared for. I have stayed for that reason, and love what I do for that reason.” (I added the emphasis).  Now how cool is that?  Look, your company probably can’t add a great big gym or afford to have on site childcare or a beauty salon, but you can treat people better.  Not only should this be easy for us to do, but it can’t cost that much money.  By the way, I am not saying that you don’t already treat your people well.  But do you treat them so well that they actually notice?  Do they feel so engaged so “regarded” as the SAS manager put it that they love what they do?

So, managers, HR people, you want a goal for this year that you can put in writing and give to your boss.  One that won’t cost anything but should make a positive impact on the bottom line?  How about making sure that all of your employees feel “regarded”?  Work at making them feel like you see them and care for them.  And when the profits start rolling in, maybe you can put a gym in too.  And that can’t be all bad.

No Predictions this Year!

Well, it is the end of the year which is of course traditionally a time of year when one looks back on the accomplishments of the previous year and forward with anticipation to the year to come. Of course one of the advantages of writing a blog is that I get to do that in writing. So I thought I would take this opportunity to reflect on my past  brilliance and maybe make a prediction or two about the year to come. (What is really going on here is the marketing department wants me to write something before the end of the year and this was all I could come up with).

Two years ago, when President Obama was elected, and the House of Representatives and the Senate were controlled by the Democrats, we (by we I mean employment lawyers) were convinced that a major shift in labor and employment law akin to what happened during the New Deal was about to take place. And it did start out that way. The first bill President Obama signed into law was an employment related bill; the Lilley Ledbetter Fair Pay Act.  So of course, like everyone else who does what I do for a living, I thought, “Here we go!”

Man was I wrong. Now don’t get me wrong. Congress tried, they really did. They introduced a bunch of bills, bills to amend the WARN Act, bills to amend the ADEA and overturn Supreme Court decisions, bills to amend Title VII to include sexual orientation and of course the Employee Free Choice Act, a bill that I maintain may have the most misleading name in history.    And guess what?  Nothing came of it all. Now I’m not saying that is a bad thing, I’m just saying.

So what is going to happen next year. I honestly don’t know. But I can tell you this—I won’t even try to predict what Congress might do. I’ll stick to the courts and administrative agencies. For example, there is a lot of focus on so called “wage theft” and you can plan on the DOL to focus a lot of its effort on this issue. You can read about the issues here and here. You can also plan on the NLRB to become more aggressive in overturning some of the Bush-era Board Decisions.  You can read about what the Board is doing here. And finally, the Supreme Court has heard a couple of cases this term that will have broad application on such things as when is a complaint filed under the FLSA and how broad are the retaliation protections of Title VII.

And if you really want to know what the Congress is going to do, you can sit in on our Webinar on Friday the 7th of January. The webinar will explore what the changes mean for HR professionals. Join us as attorneys from the Labor and Employment and Government Relations groups discuss possible legislation that may affect the workplace and how agencies such as the EEOC, NLRB and the Michigan Department of Civil Rights may approach workplace issues. You can register here.

Hope your holidays are happy and your new year is blessed.



Yes, it is that time of year again.  No, I’m not talking about back to school time or even the start of the football season.  I’m talking about something much more exciting.  It’s time to file your EEO-1.  That’s right, September 30, 2010 is the filing deadline for your EEO-1 report.  

As I am sure you all know by now, you have to file an EEO-1 if you are a private employer subject to Title VII of the Civil Rights Act of 1964 and you have 100 or more employees, or if you are a private employer who has a “government contract, subcontract or purchase order amounting to $50,000 or more” and you have 50 or more employees.  The EEOC says that you should have received your filing material sometime in mid-August.  The preferred method for filing the EEO-1 is the EEOC’s web-based filing system. 

If you want more information about filing your EEO-1, you can find it on the EEOC’s web site at or give us a call.


A short time ago the Senate voted 63-37 in favor or confirming Elena Kagan as a Justice of the United States Supreme Court.  Ms. Kagan when sworn in will replace outgoing Justice John Paul Stevens. 5 Republicans, 56 Democrats and 2 Independent Senators voted in favor of Ms. Kagan’s nomination.  Ms. Kagan is not likely to change the ideological make-up of the court when it comes to employment matters.  Justice Stevens was considered a liberal jurist and Ms. Kagan is likely to be the same.  A couple of interesting side bars, this is of course the first time in the history of the Court that three sitting Justices are women and for the first time in the history of the Court, there is no Justice who identifies him or herself as a Protestant on the Court.  You can read more about the Senate vote on  Ms. Kagan at the New York Times: and more about the history and demographics of the Court at


The President spoke to the Executive Council Meeting of the AFL-CIO today.  The speech was what one would expect when the President talks to a room full of union representatives.  He said things like, we have made progress but we still have a long way to go.   The President stated that he intended to build an “Economy that works for everybody not just a privileged few.”  In the middle of the speech and somewhat in passing, the President stated that he intended to continue to “fight to pass the Employee Free Choice Act.”  And in answer to the one question that the President took, the President quoted FDR saying “If I was a worker in a factory and I wanted to improve my life, I would join a union.”  In short the President reaffirmed to the very sympathetic crowd that he intended to continue to use his executive powers to do such things as appoint members of Administrative Agencies like the NLRB and implement executive orders, and his influence with Congress to promote a pro labor agenda.   

I’m not a reporter so I am not going to try to report exactly what the President said.  If you would like, you can read the text of his speech at     In the mean time, we will keep an eye on the EFCA.

Thanks for everything Ernie!

I have loved baseball my entire life and still do. When I was a little kid we didn’t have 500 TV channels.  So if you wanted to hear the game, and I mean hear the game, not see the game, you couldn’t see the game, it wasn’t on TV, you listened on the radio.  Some little transistor thing with a big antenna that pulled out of the top.  I’m a Tigers Fan, and if you were a Tigers fan, when you listened to the game on the radio, the voice you heard was Ernie Harwell’s.

I remember like it was yesterday.  A hot summer night with a breeze blowing in my window.   The Tigers are on a west coast road trip.  I’m in bed, because I couldn’t stay up that late.  So I tucked that transistor radio under my pillow with the volume just loud enough so I could hear Ernie call the game but not loud enough for my mom to hear.  Ernie with that smooth delivery and all the catch phrases.  I feel asleep on a lot of summer nights listening to:  “He’s called out for excessive window shopping” or “He stood there like the house on the side of the road.” 

Ernie seemed to know everyone at Tiger stadium.  I was always amazed that whenever a ball was fouled off into the stands Ernie seemed to know where the guy who caught it was from.  “And that one was grabbed by a gentleman from Wixom.”

There have been a lot of great baseball announcers over the years, but for me, the voice of the game has always been Ernie’s.

So long Ernie, and Thanks for everything.


If you are my age or a little older you may remember a series of TV commercials that used the tag line “You can pay me now or you can pay me later.” I think the ads were for an oil filter for your car. The message in the ads was that you can spend a little money on a new oil filter now or spend a lot of money on new engine later. Must be a lot of people were deciding to forego oil filters.  Funny how things stick in your mind even after all these years.

Why, may you ask, am I mentioning an ancient TV ad? First of all, because I am ancient. Second, and more importantly, because it seems applicable to something I ran across over the New Year Holiday. You see, I had 4 days at home with my wife and teenage kids. After about three days of me at home my wife and kids had clearly had enough “dad time” to last them the rest of 2010.  So, taking the hint, I retreated to a corner with my computer. Being the modern computer-age guy that I am, I have joined several social networking sites over the last year like Facebook (to keep an eye on my kids), LinkedIn (as a business tool) and Twitter (because I like to say I “tweet”), and I thought I would spend some time looking them over. The one that really drew my attention was LinkedIn, probably because it is the one that I have spent the least time on. So, on LinkedIn, in addition to connecting with business contacts, you can join “Groups”. LinkedIn has a lot of great groups that I bet are very valuable resources. As a matter of fact, I am a member of several of these groups, like one called MSU Alumni Association. These things are great—lots of great discussions with lots of great ideas. There is also a bunch of stuff for our HR friends. Again many great groups, some of which I belong to, with many great discussions about benchmarking and best practices and lots of other HR buzz words. What could be better? Answers a few key strokes away. Ask a question and get access to not one answer, but lots of answers. How great is that?!

Not so fast my friends. I also noticed something that is troubling. Let’s face it, if it wasn’t troubling I wouldn’t be writing about it. Many HR folks were asking legal questions about things like the applicability of the FMLA to certain situations and how the FLSA applied to this employee or what do we do about the ADA with still another employee. And sometimes these HR folks were getting answers from other HR folks and sometimes those answers . . . well, they were just flat wrong.

Some people, I am sure, are asking these questions online because the first thing they think of when they have a question is to ask it on one of these sites. That’s how younger people think. Someone thinks, “Oh, I have a question. Why should I ask the guy down the hall when I can ask 10,000 “friends” at once?”  But some do this simply because they don’t want to spend the money on a lawyer. That however is not the pay me now or pay me later part. You see, the reason you are asking the question makes no difference. It doesn’t really matter if you are asking because you lean that way or because you want to save a couple of bucks. What does matter is the kind of question you are asking. There is nothing wrong with being frugal or asking all 10,000 of your closest friends what they think if you are asking about best practices. So what if you really end up with only the second best practice.

But when you are asking about how the law works, especially how the law works in a specific situation, well that is where my trip down memory lane comes in.  First of all, lawyers are not the ones answering these questions, even the questions about the law. Now I know what you are thinking. . . . that’s because lawyers don’t like to give things away for free. Well, that is only partly true.  After all, I do this blog and you don’t pay for that. But then again, this blog is not “legal advice.” (I even have a disclaimer on the blog saying it isn’t legal advice. Click the “About” tab above and you can see it.) And it is also not true that lawyers aren’t answering these questions because they aren’t in the group. I’m a member of many of these groups.

The real reason we don’t answer these questions is because the law and its application is very fact specific.  You see, we need the whole story before we can give you real advice. And you just can’t get the whole story from a question posted on a social networking site. We are going to have questions too. And the questions matter. But none of the non-lawyers who are answering the questions seem to know that. If you take their advice and it is wrong, you don’t just have the second best solution, you have “liability” which can lead to “damages” which you must defend by paying a lawyer “legal fees.”  All of which are nice legal words that mean you can pay me later.

One other thing to keep in mind. When you talk to your lawyer about the application of the law to a particular situation, that conversation is generally privileged and you don’t have to share it with anyone, not even the person suing you. But when you talk to your lawyer, or anyone else over a social networking site that can be viewed by lots and lots of other people, that is NOT a privileged conversation and you get to share that with lots and lots of people, including the lawyer representing the guy suing you. He is going to like that.

Yes, calling a lawyer does cost money. But you see, paying a lawyer to try to help KEEP YOU OUT OF TROUBLE is a whole bunch cheaper than paying one to GET YOU OUT OF TROUBLE. So, “you can pay me now or you can pay me later.”  It is up to you.


This post has nothing what-so-ever to do with employment law, or labor law or any other kind of law really. It has to do with the new year, and also the old ones. As I get older these milestones in the year become more, well . . . real I guess is the way to put it. And this one, as we move out of the “00s” and into the “tens” gives us, if nothing else, a chance to reflect.

What a decade. Remember how it started? Anyone remember Y2K? We were all planning for Armageddon.  Computers and anything with a computer chip in it would stop working. Civilization as we knew it was going to end. No cars, no toasters, no nothing. Y2K loomed, and then midnight came and went and somehow civilization continued on. Good thing too, because I can’t live without my toaster.

But silly superstition would not, unfortunately, define the decade. We had a disputed presidential election.  Remember that? Our system of selecting a leader was tested as it had never been tested before. No sooner had we gotten through that and along came 9/11 and 19 criminals thought that they could bring us down by committing murder on an unprecedented scale. And it hurt. We went to war and as we have so many times in our history we asked young men and now young women to stand and fight for us, and yes, to die.

And if we hadn’t suffered enough by human hands, nature reminded us how fragile we can be with Katrina. A storm so bad that it very nearly erased an entire American city from the map.

We saw economic crisis and political scandals. We saw tragedy and suffering. And it sometimes seemed like it would never end. What a decade.

Despite all of these lows, we did what we always do; we bounced back and in doing so we reached heights none of us thought possible. The people selected one man and the electoral college selected another and the next day we all got up and went about our business, no tanks on street corners, and no troops quelling riots. Like the outcome or not, as it had for over 200 years, power was transferred to a new leader without bloodshed. Sometimes we forget how rare that can be in this world. We saw the American spirit reemerge when we needed it most. Criminals attacked us and tried to bring us down, but it didn’t work.  It didn’t bring us down.  Instead, we heard stories of men and women overcoming fear and showing amazing bravery. We saw police officers and firefighters running toward the danger instead of away from it. Of simple citizens fighting back over a field in Pennsylvania. Remember the images of flags flying in front of houses the next day? Remember the President striding purposefully out to the pitcher’s mound to throw out the first pitch in Yankee Stadium, mere miles from one of the attacks? Remember the lines at recruiting offices, the lines of young men and women volunteering to serve their country? Katrina hit, and despite all of the failures, we saw people coming to the aid of those in need.  People opening their homes, donating their time and resources, helping however they could.  New Orleans is not all the way back, of that there is no doubt, but it is on the way. And it is on the way because people, not the government, every-day people were willing to help.

And the “00s” had some other things to be proud of too. Things not born of a crisis. Foremost among them I think, no matter your politics, in a country that was, and in many ways still is, dominated by middle aged white men, we elected a black man President of the United States.  We still have a long way to go, but Martin Luther King would, I hope, be proud.

As the decade ends, we are in the middle of another crisis, this time a financial crisis that has brought down corporate giants and shaken our trust in many of the institutions of our society. A crisis that has many of us believing that greed is the order of the day. Many of our friends are without work and there seems to be no end in sight. And yes, we are still at war and young men and women are still dying.

But it is a new year and a new decade. And as we move into the “10s” we should take comfort in one thing.  That this country, and the people that live in it, will find a way to bounce back. And what is going to do it for us is what always has: our creativity, our ability to find a solution where none seemingly exists; our civility, some of you call it “the golden rule”, that despite our sometimes crass exteriors runs through all of us at heart and make us want to help; and our optimism, the realization that no matter how bad it gets, we are blessed to live in a country that allows us, if we work at it, to rise to the top.

Happy New Year, everyone!

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