November 12, 2010

"Post-Election" Buzz

The recent election brought a dramatic shift in the U.S. Congress and all levels of Michigan state government. In addition, state governments across the Midwest and the rest of the nation saw significant changes. What do these changes in federal and state governments mean to the ever-changing field of Labor and Employment Law? Read on for information about what may change, and what will likely stay the same . . . .

New Developments

Bad News for Labor on Election Night; Unions to Shift Focus to Agencies
A big win for the GOP on both the federal and state levels means a bad night not only for unions but also for those who advocate for legislative expansion of individual employee rights. Read more >

The EEOC Issues Final Regulations on GINA
Although the Genetic Information Nondiscrimination Act (GINA) took effect for most employers nearly one year ago, the EEOC had yet to issue final regulations interpreting the law that bans employment discrimination based on an individual's genetic information and family medical history. That all changes today. Read more >

Michigan a Right to Work State?
State Right to Work laws require unionized workplaces to be "open shops." Michigan is a "closed shop" or "union shop" state. This means that it is legal in Michigan to include provisions in a collective bargaining agreement which regardless of other factors, require that an employee must be terminated if he or she refuses to pay the union-established dues payment, or an equivalent "agency shop" fee. Will this change in light of the new election? Read more >

End of Daylight Saving Time: Wage-Hour Implications for Night Shift Workers
Daylight Saving Time ended in most states on Sunday, November 7 at 2 a.m. when we set our clocks back one hour. How does this time change effect nonexempt employees who were working at the time we "fell back"? Read more >

Immigration Update
It is expected that comprehensive immigration reform efforts will remain stalled both during the lame duck session and in the 112th Congress. The shift in control of the House of Representatives will likely result in more support for enforcement-only legislation, increased resources for border and interior enforcement and greater scrutiny of the administration's enforcement of immigration laws.

Does the Michigan Supreme Court Influence Workers' Compensation?
On November 2, 2010, two business-friendly justices were elected to the Michigan Supreme Court. The new composition of the court could have a significant impact on workers' compensation law. Read more >

Can My Employee Sue Me for FLSA Retaliation? The Supreme Court Weighs In
The Fair Labor Standards Act (FLSA) prohibits retaliation against any employees who have "filed any complaint" alleging that they have not been properly paid. But what does the phrase "filed any complaint" mean? Does an employee actually have to file a written claim with his employer, the Department of Labor, or a court, or is it enough that he just verbally complained to a supervisor about how he was being paid? The U.S. Supreme Court recently heard oral arguments on this issue. Read more >

Hot Topics

Leave of Absence Under the ADA. How Much Is Enough?
Many employers allow their employees to take unpaid medical leave beyond their FMLA entitlement, but only up to a certain cut off, such as 30 or 90 days. Other employers will only allow their employees to take unpaid leave for the length of time allowed by the FMLA, and will then automatically terminate employment when the employee's FMLA leave entitlement has been exhausted. According to the EEOC and some courts, these policies are unlawful. Read more >

Cost of Living Adjustments for Employee Benefits Plans for 2011
The Internal Revenue Service has announced the “adjusted” numbers that will apply to various limits on contributions to and benefits under retirement plans. The adjusted figures apply generally to employee benefit plans for “plan years” beginning in 2011. Some of the adjusted amounts, however, apply to calendar year 2011. Read more >

Automatic Enrollments Stimulate Participation In 401(K) Plans
If you are looking for a way to get reluctant employees to participate in your 401(k) plan, an automatic enrollment program may be your answer. Your employees know they have to begin saving for retirement, but some of them are reluctant to take the first step required to get started. An automatic enrollment program will help them overcome their reluctance. Read more >

Second Circuit Holds Pharmaceutical Sales Representatives Entitled To Overtime Pay
This summer, in In re Novartis Wage and Hour Litigation, 611 F.3d 141 (2nd Cir. 2010), the Second Circuit Court of Appeals considered whether Novartis' pharmaceutical sales representatives ("PSRs") were exempt from the overtime pay provisions of the federal Fair Labor Standards Act ("FLSA"). After reviewing the PSRs' job duties, the court concluded that the PSRs were not exempt from the FLSA's overtime provisions, meaning that they were entitled to overtime pay for work performed beyond 40 hours per week. Read more >

Employment Litigation - Updating ADR Contract Provisions
Nearly every contract written today contains one common provision notwithstanding the nature of the contract: the method to be used in resolving future disputes. That includes both employment contracts and unilaterally imposed employer handbook policies. Since litigating disputes is time consuming and expensive, the chosen method is often binding arbitration pursuant to boilerplate language stored in a document management system and used repeatedly without great thought. But there may be other options. Read more >

Michigan's Identity Theft Protection Act: Rules for Employers Concerning Information Security Breaches
More frequently than we would like, situations arise in which personal information of individuals may be compromised. While many employers are well-familiar with Michigan's social security number privacy provisions, Michigan law provides protection to an even broader array of personal information maintained in the course of business. Read more >

Employment Best Practices Checklist
Over many years we have observed and worked with the employment policies and practices of a very wide spectrum of organizations. Many of the policies and practices are good common sense, others are not so obvious or challenge the status quo. Read more >