Archive for the 'Uncategorized' Category

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).

Let me go over that one more time for you.  A FIXED AND REGULARLY RECURRING PERIOD OF 168 HOURS – SEVEN CONSECUTIVE 24-HOUR PERIODS.

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.

Steve.

“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 http://grammar.about.com/od/60essays/a/whistlessay.htm

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.

 

HOW ABOUT MY ‘RIGHT TO WORK’ ( OR NOT)

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 (rdubault@wnj.com or 231.727.2638) or any other member of the Labor Law Group at Warner Norcross & Judd.

DISCRIMINATING AGAINST VICTIMS OF DOMESTIC VIOLENCE: The EEOC Issues a Q & A.

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.”

http://www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm

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:  http://www.wnj.com/Professionals/Attorneys/Tara-M-Kennedy

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.

HAS WORKERS’ COMP REALLY GOTTEN MORE EMPLOYER FRIENDLY? 10 Changes to the Michigan Workers Comp Act.

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

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 http://blogs.wsj.com/law/2011/02/11/judge-okays-walmarts-firing-of-medical-marijuana-user/

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 http://zomichiganemploymentlaw.wnj.com/

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 http://money.cnn.com/magazines/fortune/bestcompanies/2011/snapshots/1.html

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.

Steve

THAT TIME OF YEAR AGAIN!

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 http://www.eeoc.gov/employers/eeo1survey/index.cfm or give us a call.

« Previous PageNext Page »