LEGISLATIVE
AND REGULARY DEVELOPMENTS
“Hire Michigan First” Bills Pass Republican-controlled Senate, with Changes from House version
The Michigan State Senate passed a series of bills that would give tax breaks to companies that hire Michigan workers. The Senate amended the House’s bill by deleting two provisions: a “prevailing wage” requirement and a raise in the percentage of Michigan workers required for state construction projects. However, the Senate did leave in a provision that allows unionized companies to use more workers from out of state than non-unionized companies. Next, the two bills will have to be reconciled.
House Passes Unemployment Tax Increase
The American Reinvestment and Recovery Act would require the State of Michigan to make permanent changes to the unemployment laws to receive $138.9 million. On May 6, the Michigan House of Representatives passed House Bill 4785 in an effort to obtain these additional federal stimulus dollars. The bill would allow unemployed workers who are enrolled in vocational or skill retraining programs to receive unemployment benefits for an additional 26 weeks. The bill is now in the Senate Committee on Commerce and Tourism.
MIOSHA Launches Initiative to Help Employers during Tough Economic Times
The Michigan Occupational Safety and Health Administration (MIOSHA) is launching an awareness campaign, “Protecting Workers in Tough Economic Times.” As part of the campaign, MIOSHA is offering penalty reductions to companies who are compliant at the end of a MIOSHA inspection. MIOSHA feels that the cost of preventing workplace injury is less than the cost of reacting to it. Employers can call the CET Division at 517.322.1809 for free statewide safety and health assistance.
DOL Proposes Rescinding New Disclosure Rules for Unions
The U.S. Department of Labor has again delayed the effective date for a new set of regulations governing how labor unions disclose information about assets and the compensation of officers. The DOL’s Office of Labor-Management Standards (OLMS) has published a proposal to rescind the rule. It also published a notice that the effective date for the regulation would be October 19, 2009 and the rules’ applicability date would be delayed until January 1, 2010. The OLMS set a 30-day comment period for the withdrawal proposal which ends May 21, 2009.
EFCA Battle Is Not Over
On March 10, the Employee Free Choice Act (“EFCA”) of 2009 was re-introduced in both the House and Senate. The bills are identical to last year’s, which passed in the House, but not in the Senate. On March 24, Senator Arlen Specter, R-Pa., declared that he would vote against cloture to take the bill to the Senate floor and later switched parties. Last year, Senator Specter was the only Republican to vote for cloture on the EFCA.
Beginning in January, a steady stream of events relating to the EFCA has taken place. A petition containing 1.5 million signatures called for Congress to pass the EFCA, and was presented to Congress during the “Million-Member Mobilization” rally on Capitol Hill. President Obama predicted that the EFCA would pass in Congress. Some moderate Democrats, however, have wondered aloud whether, with the economy suffering, this is the time for this legislation. A more moderate alterative to EFCA, the National Labor Relations Modernization Act, has also been proposed. This Act tweaks the compulsory first contract arbitration provision, adds a requirement for union organizer access to employees at work, and maintains the new anti-employer penalty provisions. The polar opposite of the EFCA has been introduced by Congressional Republicans, in a bill that would guarantee employees the right to a secret ballot election in NLRB proceedings.
Medical Marijuana and the Michigan Employer
The Michigan Medical Marijuana Act was passed last fall and the administrative rules governing issuance of registry identification cards were issued on April 4th, 2009. The Act states that “nothing in this act shall be construed to require an employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana.” It also provides that it does not permit an individual from operating a motor vehicle, aircraft or motorboat “while under the influence of marijuana.” Unfortunately, the phrase “under the influence of marijuana” is not defined. Questions remain as to a variety of issues, such as whether an employee testing positive for marijuana after a work-related accident can be disciplined.
U.S. Immigration and Customs Enforcement – Worksite Enforcement Overview
In April 2009, Secretary of Homeland Security Napolitano issued guidance outlining that the U.S. Immigration and Customs Enforcement (ICE) will focus on criminal prosecution of employers who knowingly hire illegal workers. ICE plans on using all available civil and administrative tools also, which include civil fines and debarment. These ICE worksite enforcement cases can be complex, revealing other crimes such as alien smuggling, document fraud, identity theft, money laundering, and wage and labor violations.
RECENT CASES OF INTEREST
Pension Plans May Exclude Pregnancy Leaves, Justices Rule
In a case captioned AT&T v Hulteen, the U.S. Supreme Court ruled that employers do not need to give women credit for pregnancy leaves occurring before the 1978 passage of the Pregnancy Discrimination Act when calculating their pension benefits. The case involved four women who took maternity leaves between 1968 and 1976, at which time it was lawful for employers to treat pregnancy differently than other forms of discrimination. In 1978, Congress passed the Pregnancy Discrimination Act, which made discrimination based on pregnancy a form of sex discrimination. The Court decided that the women were not entitled to full credit for their leaves because the pregnancy leave occurred before the Act was passed.
Forced Resignation of Accused Sex Harasser Discriminatory
After a female co-worker accused the plaintiff of stalking and sexually harassing her, the employer turned the matter over to the police, but did not conduct its own investigation. The police reported there was insufficient evidence to proceed with a criminal case. The male supervisor of the plaintiff told him that he would have to resign because “I have no choice; she knows a lot of attorneys and I’m afraid she’ll sue me. And besides, you probably did what she said you did because you are male.” In allowing the plaintiff to proceed with his lawsuit, the court in Sassaman v Gamache, ___ F3d ___ (2d Cir 5/22/09) found gender bias to exist based on the quoted statement and the lack of an investigation.
Non-compete Covenant Expired with Employment Contract
In Stahl v. U.P. Digestive Disease Associates, Mich. Ct. App., No. 276882 (March 24, 2009), a doctor had signed a two-year employment agreement containing a non-competition clause barring him from competing with the employer in a fixed geographic area for two years after the employee’s “separation from employment.” The employee neither quit nor was discharged within the two year term of the employment agreement. The employer did not renew the agreement, and the employee sought to compete. The court interpreted the agreement as only activating the non-competition clause if the employment relationship ended within the term of the employment agreement. It therefore refused to enforce the restrictive covenant.
