This article was reproduced with permission from Accident Fund Insurance Company of America. Founded in 1912 and headquartered in Lansing, Mich., Accident Fund is rated “A” (Excellent) by A.M. Best and is a wholly owned subsidiary of Accident Fund Holdings, Inc., the 10th largest workers’ compensation insurer in the U.S. Accident Fund offers low-cost group rates with a 5% up-front discount on workers’ compensation insurance, as well as the possibility for long-term dividends. For more information, contact Beth Goodman (517) 202-5121, or visit www.accidentfund.com.

Drive Safe — Arrive Safe!
When a driver gets behind the wheel, they take responsibility for maintaining control of a two-ton machine that can easily cover a distance of more than 80 feet in one second. Operation of a vehicle must be taken seriously. Driver fatigue, unsafe traveling speeds and distracted driving are three of the biggest culprits of unnecessary vehicle-related fatalities. The National Highway Traffic Safety Administration says nearly 6,000 people died and more than 500,000 were injured in 2008 crashes involving a distracted driver; and the National Transportation Safety Board reported that speeding/driving too fast for conditions was the second leading cause of driving-related deaths in 2007 (most recent data available).

Both Hands on the Wheel, Please!
In a business climate with people always on the go and with an emphasis on productivity, employees may feel the urge to talk, text and e-mail while driving. However, what employees may not realize is that doing business while behind the wheel is not only illegal in several states, but it’s also extremely dangerous.

The Insurance Institute for Highway Safety says that drivers who use hand-held devices are four times as likely to get in a crash. To reduce that number, the use of hand-held devices while driving has been banned in eight states plus the District of Columbia, and texting while driving has been banned in 30 states plus the District of Columbia.

To help avoid accidents, keep employees safe and reduce employer liability, business owners should institute a policy that does not allow the use of hand-held devices while driving. The passage of these new laws reinforces the need for such a policy. The policy should clearly state that the use of hand-held devices while driving will absolutely not be tolerated, and implications for not adhering to the policy will be enforced.

I’m Not Tired, My Eyes Are Just Heavy!
Almost every driver has experienced feelings of grogginess while driving … when it feels like your eyelids weigh 100 pounds, and the lines on the road start to blur. The National Highway Traffic Safety Administration estimates that 100,000 police-reported crashes are the direct result of driver fatigue each year, resulting in an estimated 1,500 deaths and 71,000 injuries.

Tired drivers should immediately find a safe place to stop the vehicle and rest. Getting some fresh air, walking around a bit and drinking a caffeinated beverage are other helpful ways a drowsy driver can get energized.

What are the warning signs of driver fatigue?

• The inability to recall the last few miles traveled
• Having disconnected or wandering thoughts
• Having difficulty focusing or keeping eyes open
• Feeling as though your head is very heavy
• Drifting out of the lane or driving on the rumble strips
• Yawning repeatedly
• Accidentally tailgating other vehicles
• Missing traffic signs

I Feel the Need for Speed!
According to the National Highway Traffic Safety Administration (NHTSA), speed is involved in about one out of three fatal car accidents. Although speed limits are higher on highways, the vast majority of speeding-related fatalities happen on roads other than interstate highways. In fact, NHTSA’s 2006 fatality data shows that 47% of speed-related fatalities occurred on roads with speed limits of 50 mph or less.

Adverse road and weather conditions are also factors in determining a safe driving speed. The U.S. Department of Transportation recommends that drivers reduce their speed by one-third on wet roads and by half on snow-packed roads. Highway construction zones also present a deadly hazard for workers, motorists and pedestrians. When approaching work zones drivers should slow down, move to the proper lane as instructed, and follow posted speed limits. As a rule of thumb, drivers should keep in mind that the posted speed limit does not always indicate the safest traveling speed.

When to adjust driving speed:

• On wet roadways (rain, snow or ice)
• When there is reduced visibility (fog)
• On uneven roads
• In construction zones
• When entering curves
• When approaching and passing through intersections
• On gravel roads
• In heavy traffic

There was once a time when a person could walk into a store, grab the help wanted sign from the window, and with as little as a handshake, walk out with a job. But the world keeps growing, the job pool keeps getting bigger and the times—well, they are a changin’. As people, we want to have faith in others, but as employers, we have to be especially cautious, as our hiring decisions affect many people. Hiring just anyone off the street is no longer a safe bet.

High stakes
Today making a snap hiring decision could leave you out of the hiring game for good. Statistics show that 30 percent to 40 percent of job applicants exaggerate or lie on applications and resumes. And occupational Health and Safety Magazine states that “negligent hiring” lawsuits are on the rise. These suits implicate employers and hold them responsible for the actions of their employees. Industry statistics show that one poor hiring decision can cost a business as much as $100,000 or more.

Lay your money on the check
A much safer bet is the professionally done background check. They’re quick — typically taking between 48 and 72 hours to complete—and range in price from $100 to $200, depending on what information you want to find. The more comprehensive the search, the more it will cost. If you are a small-business owner, the costs may seem high, but in the long run, it’s better to be safe than sorry. If you are still concerned about the fees, go to www.esrcheck.com and read “How to Avoid Hiring a Criminal for Under $20.00.”

Playing it safe
While there may have been a time when background checks were something employers did after the decision to hire was made, experts recommend that Human Resource departments and business owners take a new approach to the way they view the hiring process. Safe hiring is something all businesses should adopt as a way to protect their employees, their business and their time.

Employment ads should state that background checks are performed. Policies and procedures should be in place regarding hiring processes and background checks, making sure that each applicant is handled in the same manner. Making it known that background checks are part of your hiring procedure will deter people with something to hide, and encourage those who wish to be considered, to lay all their cards on the table. In the long run, you will save yourself a great deal of time, money and effort by adopting a safe-hiring plan.

A winning hand
You simply can’t lose when taking a proactive approach to hiring. You will get the best candidate for the job and ensure the safety of your workers and your business. Background checks are completely legal, if followed according to the Fair Credit Reporting Act, which protects job seekers and employers. Employers have a right to know whom they are hiring. Conducting background checks is your best bet for warding off unwanted job applicants and costly lawsuits.

What to check
County criminal (felony only, felony and misdemeanor, misdemeanor only)
Motor vehicle record
Credit Report
Prior employment verification
Social Security number
Education verification
Reference checks
Licensing verification

This short article from our partner, BIPAC, gives us something important to consider as our country continues to work through this challenging economic time.

Bob

written by Greg S. Casey

The partisan political brinkmanship preceding the debt ceiling vote in August was disheartening to most Americans.  The Administration and Congress seemed incapable of demonstrating to a watching world that the U.S. can make even the most basic decisions to correct its fiscal course. Although a compromise decision was reached, allowing the nation to meet its financial obligations for now, the process was anything but reassuring and it kicked the can to a “Super Committee” which could invite more of the same.  Certainly, decision-makers need to know Americans expect better and they will be held accountable for outlandish behavior. The question is how.

Circulating in CEO circles is a message from one of their colleagues essentially suggesting business should withhold their political support from any incumbent member of Congress until they solve the deficit and debt problem for the long term.  The message further suggests business should begin hiring people as part of their responsibility to participate in economic recovery.  This CEO, like millions of his fellow Americans, is justifiably frustrated with the fiasco that has been Washington deliberations of late.  He is beyond anxious to see statesmanship in resolving the critical fiscal issues that vex the nation.  He rightly admonishes his colleagues to get involved.  I understand the CEO’s frustration but his suggestions may make matters worse, not better.

You can’t change bad behavior without also recognizing the good.  There are plenty of policy-makers of both political persuasions who understand the need for focused statesmanship but they have been marginalized by the extremes.  Simply withholding business support from everyone, including those who business might otherwise support, accrues to the benefit of those candidates businesses would never support anyway.  It is a kind of unilateral disarmament that encourages the extremes because it increases the importance of the contributions the opposing point of view is certain to make.
Worse, it signals to those who have or might be inclined to do the right thing, business will cut and run if the outcomes don’t meet their expectations. Business must be smarter and more strategic than that.  An effective process to change bad behavior (and it IS a process) begins with decisions based on how Members of Congress actually vote rather than access, their seniority, political affiliation or the ugliness of the process itself. Concerned businesses should establish a clear standard to guide their political support decisions. The standard should be business-based and intellectually
honest.  This standard should be communicated not only to candidates and incumbents, but to employees and other stakeholders along with tools to facilitate their advocacy of the business point of view.  Those who act consistent with that standard should be supported while those who don’t, should be opposed.  Fortunately, many of the more politically active businesses already have such a system in place.  It is time others, like the company making the aforementioned suggestions, do the same.

I also find the suggestion that businesses should begin “hiring people” just to spur economic recovery incredibly counterproductive. The sour economy wasn’t created by business not hiring enough people. Hiring people to fix the sour economy is like papering over a hole in the wall.  The hole is still there.  There are significant and profound reasons the economy went off track and those issues must be realistically addressed by serious people before the economy can truly recover.

Resolving the underlying impediments to economic recovery will be difficult and time consuming.  Businesses can and should play a key role in shaping the solutions, particularly as the “Super Committee” begins to deliberate. To do so, businesses must be proactive not reactive.  We cannot expect sober and thoughtful deliberations if we ourselves are not equally thoughtful in our involvement.

To Our Members …

For an easy read of a bipartisan look at the recent debt ceiling compromise, please take a look at this short article from our partner, BIPAC. Come back to our website and visit us. We will be providing you insight from BIPAC on issues that are important, and that affect us all.

Bob

With the debt ceiling deal done, it is time to get serious
By Greg S. Casey

It has been just over a week since the debt ceiling compromise was passed.  It is a lot more complicated than it appears and we will get to the analysis of those intricacies later.  For now, whether or not you liked the deal, the fact remains the outcome only postponed the tough decisions on fiscal and tax reform that must still be made.

I spent the days since the “debt deal” in real America, talking with dozens of people from all political persuasions, from all over the country, employees and employers, rural and urban.  I wanted to know what they thought before I said anything more.  I found their disdain for the partisanship and their frustration with Washington is greater than I imagined.  It is greater than anything I’ve seen before.  Repeatedly I heard, “I’ve been a lifelong (fill in the blank) but I’m not going to be anymore.” Yesterday, Gallup said public disapproval of Congress is the lowest it has been since they started asking the question.

Simply put, Americans have lost faith in the Federal government’s ability to honestly address, let alone fix, our economic woes. They yearn for statesmanlike leadership and a serious conversation where there isn’t any reference to either political party. To them, the three-letter word standing in the way of a solution is neither GDP, nor TAX but EGO.

Few Americans were subsequently surprised by Standard & Poor’s downgrade of the U.S credit rating.  For months, credit rating organizations signaled a downgrade was possible if policy makers didn’t do something substantive to resolve our nation’s systemic addition to deficit spending.  Rather than dicker with the details or castigate the messenger, most Americans wondered
what had taken so long.  Although the debt deal finally enacted might have been the best that could be accomplished under the circumstances, it didn’t meet the substantive change standard.  And it wasn’t just the way it happened that so troubled the S&P.  We shouldn’t forget a downgrade seemed possible BEFORE the debt ceiling became the vehicle fiscal hawks used to force some kind of deficit reduction.  In all likelihood, a “clean” debt ceiling bill without deficit reduction would have resulted in the same downgrade.  Unfortunately, true to form, some in Washington have now chosen to label this a “tea party downgrade.”  That is precisely the kind of political finger-pointing and denial of realty that so infuriates Americans.

Between now and the end of November, the President, Congress and those with influence in the process, must find a way to deal with reality.  In order for this nation to get its house in order and  facilitate economic growth, we need fiscal reform that addresses entitlements and tax reform that addresses rates and exemptions.  Without fundamental spending reform, entitlement spending will consume ALL federal revenues within the next three decades.  Without tax reform, the U.S. will be at a competitive disadvantage that will pinch every corner of our economy.  For both sides, the resulting economic growth is worth the trade.

I am not picking sides.  I am not embracing any scheme over another. I am, however, reflecting the frustration of a very angry public, willing to throw the rascals out if a truly meaningful resolution is not reached. I sense Americans have simply lost their patience with partisan bickering and inside the beltway deal making.

1.         Filing fees and arbitrator fees are expensive.  Most employers involved in arbitration are quite surprised how expensive the filing fees and arbitrator fees are.  For example, in employment arbitration cases filed with the American Arbitration Association (“AAA”) involving disputes arising out of an employer-promulgated arbitration agreement, the “employer shall pay the arbitrator’s compensation unless the employee, post dispute voluntarily elects to pay a portion of the arbitrator’s compensation.”  In addition, in cases before a single AAA arbitrator, “a nonrefundable fee in the amount of $925 is payable in full by the employer, unless the plan provides that the employer pay more.”  These costs do not include any costs associated with selecting a location of the arbitration.  Even if AAA is not used as a dispute resolution service and the parties select their own arbitrator, an arbitrator’s fee often exceeds $1,000 a day.   

2.         Arbitrators are less likely to dismiss a claim.  Arbitrators have an economic incentive to let the case proceed as long as possible since they are typically paid by the hour. Therefore, many arbitrators are less receptive to employer motions to dismiss employee claims. 

3.         Lack of appellate review.   Another problem with using an arbitrator to decide employment disputes is the inherent lack of meaningful appellate review.  An arbitration award is final and binding on both parties unless it is procured by corruption or fraud, the arbitrator was obviously biased or engaged in specific misconduct, or there was no valid arbitration agreement between the parties. 

4.         Arbitrators frequently “split the baby.”  In other words, arbitrators frequently issue a compromise decision, finding in favor of the employee on part of the claim and the employer on part of the claim.  One of the main reasons arbitrators do this is because they hope to be selected as an arbitrator in the future.  If an arbitrator becomes known for being too employee and/or too employer friendly in his/her decisions, he/she may not be selected as an arbitrator in the future.   

As a result of these disadvantages with arbitration, employers have continued their quest to find a better method of limiting their exposure to employment law claims.  The newest method utilized by employers to attempt to lessen their financial exposure to employment law claims is the jury trial waiver.  Jury trial waivers provide that the right to a jury trial is waived for any claim or cause of action arising under the employee’s employment agreement or out of the employment relationship.  Jury trial waivers give employers the benefits of a judicial forum without the expense and uncertainty of a jury trial. In most jurisdictions, after all, it is the jury’s  – not the judge’s – unpredictability that concerns employers.  Most importantly, however, is the fact that a jury trial waiver avoids the disadvantages of arbitration agreements for employers as discussed above. 

As far as filing fees go, unlike with arbitration the employee, and not the employer, is responsible for paying the filing fee at the time the employee’s complaint is filed.  In federal court, the filing fee for a complaint is $350.00 with or without a jury demand.  In Michigan, for complaints filed in the circuit courts without a jury demand, the fee is $150.00.  In addition, unlike with arbitration, neither party pays any fees for the trial court judge in either federal or state court as the judges are paid by the government.  Because bench trials are typically slower, less private, and more costly for employees than arbitration, fewer employees may choose to bring a discrimination claim.  In addition, because a trial court judge has no economic incentive to let litigation proceed, he/she may be more likely to grant a motion for summary judgment or a motion to dismiss in order to clear his/her docket.  Next, unlike with arbitration, an employer that is dissatisfied with a trial court judge’s decision in a bench trial is entitled to a full appellate review.  On appeal, the appeals court will review the trial court judge’s findings of fact under a clearly erroneous standard and the trial court judge’s conclusions of law under a de novo standard. Finally, when it comes to deciding cases, a trial court judge is less likely to split the baby since they do not have an economic incentive to be selected again in the future. 

While a waiver of jury trial is permissible in the state and federal courts of Michigan, there are strict requirements that must be satisfied in order for the waiver to be enforceable.  Employers that are interested in drafting and/or implementing a waiver of jury trial policy should contact their labor and employment law attorneys. 

For more information on this or any other labor and employment law topic, please contact Masud Labor Law Group at (989) 792-4499.

About the Author

Brian Swanson graduated from Wayne State University Law School where he received awards for academic excellence.  While attending law school, Brian participated in Moot Court and also served as editor-in-chief.   Brian received his undergraduate degree from Grand Valley State University in Allendale, Michigan.  Before joining Masud Labor Law Group, Brian obtained extensive litigation experience in both state and federal courts as an associate with a Bloomfield Hills labor and employment law firm.

This article is published by the Masud Labor Law Group, and is intended as general information only.  This article is not intended to provide legal advice or opinion, as such advice may only be given when related to specific fact situations.  Questions or comments concerning this article should be directed to the Masud Labor Law Group, 4449 Fashion Square Blvd., Ste. 1, Saginaw, Michigan, 48603, (989) 792-4499.  E-Mail:  mps@masudlaborlaw.com.  ©Masud Labor Law Group 2010.  All rights reserved.  Reproduction of this article in whole or in part, without express permission from the Masud Labor Law Group is prohibited.

A well-designed EPLI policy can provide the employer with protection against employment related claims such as wrongful termination, sexual harassment, discrimination, negligent hiring or retention, defamation, invasion of privacy, Family and Medical Leave Act (“FMLA”), and Americans with Disabilities Act (“ADA”) claims.  Traditional insurance policies, including “umbrella” policies, directors and officers liability policies, and workers’ compensation, generally exclude these employment-related claims. 

There is no “standard” EPLI policy for employers.  There are a number of insurance companies which offer EPLI policies and there are many variations in what different insurance companies will provide in terms of coverage, competitive pricing, and quality of legal representation.  A significant consideration for the employer in selecting an EPLI policy should be whether the EPLI carrier will allow the employer to select counsel of its own choice to defend them (i.e., a defense law firm that specializes in labor and employment law).  Many employers are not aware of a provision in nearly every EPLI policy whereby the insurance companies retain the right to select defense counsel.  Not surprisingly, this fact is not always made clear to employers at the time the EPLI policy is purchased. 

Unfortunately, the insurance carrier does not always select defense counsel who specializes in labor and employment matters when litigation arises.  The result to employers is that cases are assigned to lawyers in some distant law firm having no prior relationship with the insured employer whatsoever, and no experience with the local courts and judges.  In fact, all too often, an employer’s difficult and complex employment-related circumstance is pulled from the employer’s labor and employment lawyer who has handled the case up to the point of litigation, and is transferred to a new lawyer who lacks even the most basic knowledge of labor and employment law or of the employer’s business practices.  Thus, employers frequently have to incur unnecessary costs while the newly assigned counsel starts over and becomes educated about a case that the employer’s labor and employment law attorneys have already lived with the employer.  In short, many employers are not getting what they thought they bargained for in their EPLI claims, even though they are paying top dollar for coverage.

One means of avoiding this undesirable result is for the employer to specify its counsel of choice in the event of litigation at the time of purchasing the policy.  It is important for an employer to make this selection when first purchasing or renewing a policy because, thereafter, insurance carriers often refuse to allow employers to choose counsel.  If you are purchasing or renewing an EPLI policy, or even general liability coverage, be sure to insist on your counsel of choice early in the process. 

For more information on this or any other labor and employment law topic, please contact Masud Labor Law Group at (989) 792-4499.

About the Author

Brian Swanson graduated from Wayne State University Law School where he received awards for academic excellence.  While attending law school, Brian participated in Moot Court and also served as editor-in-chief.   Brian received his undergraduate degree from Grand Valley State University in Allendale, Michigan.  Before joining Masud Labor Law Group, Brian obtained extensive litigation experience in both state and federal courts as an associate with a Bloomfield Hills labor and employment law firm.

This article is published by the Masud Labor Law Group, and is intended as general information only.  This article is not intended to provide legal advice or opinion, as such advice may only be given when related to specific fact situations.  Questions or comments concerning this article should be directed to the Masud Labor Law Group, 4449 Fashion Square Blvd., Ste. 1, Saginaw, Michigan, 48603, (989) 792-4499.  E-Mail:  mps@masudlaborlaw.com.  ©Masud Labor Law Group 2010.  All rights reserved.  Reproduction of this article in whole or in part, without express permission from the Masud Labor Law Group is prohibited.

The value that a well-drafted employee handbook contributes is significant.  First, an employee handbook helps hold employees accountable for their conduct.  The handbook should set forth the employers expectations and the consequences for employees that fail to comply.  Second, a well-drafted handbook consistently applied and enforced sets the stage for defending an employer from potential liability.  An example is where an employer’s EEO policy requires an employee to file any complaint of discrimination or harassment internally.  Filing an internal complaint gives the employer the opportunity to investigate, address, and eliminate any discrimination and/or harassment that may be confirmed.  If an employee fails to follow the employer’s policy, the employer may use the employee’s failure to do so as an affirmative defense in a subsequent discrimination and/or harassment lawsuit. 

There are several pitfalls that can de-value a handbook that employers should avoid:

1. Using or copying another company’s handbook.  When an employer uses or copies another company’s employee handbook, there is no guarantee that the handbook is legally compliant, especially if the handbook is from another state.  Each state has its own statutes that may or may not be the same or similar to another state’s laws.  Moreover, a well-drafted employee handbook must be tailored to the needs and procedures of the company for whom it is drafted in order to truly reflect how the company operates. 

2. Not including necessary provisions.  A well-drafted employee handbook has certain provisions that should be included, such as a contractual disclaimer, an employment at-will statement for those employees not subject to just cause termination, and an anti-discrimination/harassment policy, to name a few.  Failure to include necessary provisions can subject an employer to potential liability and limit the effectiveness of the handbook.

3. Not using clear language.  An employee handbook must be clear to the reader.  If the handbook provisions are vague or ambiguous, too complicated to understand, or too technical, not only will managers have a difficult time administering its policies, but employees will avoid reading and following its provisions.

4. Failing to have a well-organized handbook.  Again, an employee handbook must be user-friendly.  An effective employee handbook should have a table of contents with applicable page numbers, and should be organized in a manner that allows users to easily find the policy or procedure that they are looking for.  If an employee cannot do so, they will become frustrated and not use the handbook as a reference.

5. Failing to have policies and procedures that can be easily administered.  If the policies and procedures are too complicated to administer, supervisors will become frustrated, not use the handbook, and will not administer the handbook or enforce its terms.

6. Failing to distribute or make available a copy of the employee handbook to all employees.  Policies and procedures that employees have never seen, or do not know exist, are useless.  An employer must ensure that every employee has received a copy of the employee handbook or, at a minimum, has had a copy made available to them on-line or through some other similarly valid means.

7. Failing to have every employee sign and return a written acknowledgement of receipt.  To document that an employee has received a copy of the policies, or is aware that the company’s policies exist, every employee must sign an acknowledgment form.  The acknowledgement should also confirm that the employee understands their obligation to comply with the company’s policies and procedures and the consequences for failing to do so.  It is not advisable that an acknowledgement form state that the employee has read the employee handbook, because such a statement may be untrue.

8. Failing to train supervisors and staff on how to effectively use the employee handbook.  Once the employee handbook has been well-drafted, reviewed by labor and employment counsel for legal compliance, and has been distributed to all employees, it is imperative that the company train all supervisors and staff on the contents of the handbook and how the provisions will be administered and enforced.  This training ensures that all supervisors have the same understanding of the provisions and will administer and enforce the policies and procedures consistently.

9. Failing to consistently apply the provisions of the employee handbook.  A discrimination lawsuit can easily be built based on unequal treatment when a protected class is involved.  Treating employees equally by consistently applying the company’s policies and procedures can help prevent discrimination claims, or at a minimum, provide a compelling defense.

10. Failing to update the handbook.  Companies change and so do state and federal laws.  It is imperative that employee handbooks are updated as new employment laws are enacted or as old laws are amended.  Similarly, as companies change, whether by increasing or decreasing employees or by changing their procedures, the handbook must reflect those changes.  At a minimum, an employer should have their employee handbook reviewed for legal compliance every two years.

11. Failing to have the handbook reviewed by a labor and employment attorney.  To ensure that the policies and procedures contained in an employee handbook comply with applicable state and federal laws, a labor and employment law attorney should review its provisions and administration.  Some things that may seem innocuous may have significant labor and/or employment law implications.  For example, many employers include in their handbooks that employees may not discuss the amount of their pay with other employees.  This policy is illegal because it interferes with an employee’s right to organize under the National Labor Relations Act.  Likewise, some employers’ policies state that employees must take an unpaid break.  However, the Fair Labor Standards Act requires that all breaks of twenty minutes or less must be paid.

Most recently, effective, well-drafted employee handbooks have earned added value as a strong defense tool in unemployment cases that have increased significantly over the past few years.  Defending unemployment cases when an employee has been terminated for misconduct requires specific employer proofs.  The evidence necessary includes a showing that the employee violated a company policy, the employee knew of the policy, and knew that violating the policy could result in discipline up to and including termination.  In many cases, the employer must also demonstrate that the employee received prior verbal or written warnings based on policy violations.  Thus, clearly written handbook policies can also be used to support employee discipline.   

When employers understand the benefits that a well-drafted employee handbook can provide, employers will understand the value of ensuring that the handbook is legally compliant, distributed to all employees, and consistently administered and enforced.

For more information on employee handbooks or any other labor and employment law matter, contact Masud Labor Law Group at 989-792-4499.   
About the Author

Elizabeth L. Peters graduated from Thomas M. Cooley Law School with an emphasis in labor and employment law.  She holds Bachelor of Science and Master of Arts degrees from Michigan State University.  After graduating from law school, Elizabeth began her labor and employment career with the Masud Labor Law Group where she remained until she became in-house counsel for labor and employment litigation at U.S. Steel in Pittsburgh, Pennsylvania.  As in-house counsel, Elizabeth litigated numerous employment cases across the country.  Elizabeth also served as a U.S. Steel negotiations and arbitration staff attorney, where she was involved in hundreds of grievance disputes and participated in the bargaining of two national collective bargaining agreements.  Elizabeth is admitted to practice in all state courts in Michigan and Pennsylvania, and is admitted to various federal courts, including the Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal.
This article is published by the Masud Labor Law Group, and is intended as general information only.  This article is not intended to provide legal advice or opinion, as such advice may only be given when related to specific fact situations.  Questions or comments concerning this article should be directed to the Masud Labor Law Group, 4449 Fashion Square Blvd., Ste. 1, Saginaw, Michigan, 48603, (989) 792-4499.  E-Mail:  mps@masudlaborlaw.com.  ©Masud Labor Law Group 2010.  All rights reserved.  Reproduction of this article in whole or in part, without express permission from the Masud Labor Law Group is prohibited.

While the unemployment rate in the private sector hovers around ten percent, the United States Department of Labor (along with the IRS) is busy hiring.  Specifically, the Department of Labor seeks to add about 200 investigators representing an increase of nearly $70 million dollars to its existing budget.  With the addition of the new health care law, $600 million dollars has been added to the budget of the IRS with nearly 100 of the proposed new hires to be devoted to cracking down on employers who improperly misclassify employees in regard to employment laws.  The IRS has stated that it will begin random audits in 2010 of around 6,000 U.S. employers concerning worker classification.

 In a review of the United States Department of Labor’s web site, one can find a video address of the Secretary of Labor, Ms. Hilda Solis, imploring workers to seek out assistance from the Department of Labor if they feel they have been improperly paid.  Strikingly, at the end of the very short video, she states that such assistance is available to employees “whether documented or not.”  Apparently, the administration is prepared to enforce the federal wage and hour laws against employers to the exclusion of federal immigration laws. 

On the union side of the ledger, the federal agency which enforces union related laws, the National Labor Relations Board (NLRB), is also poised to make a sharp left turn.  The Board consists of five members selected by the President and confirmed by the senate.  Tradition holds that the President selects three members from within his own party with the remaining two to be filled by the opposition party.  When President Obama took office, only two seats on the Board had been filled, one Democrat and one Republican.  When the confirmation of the three nominees proposed by President Obama became stalled in the Senate, President Obama used his recess appointment powers to appoint only the two Democrats to the Board, thus creating a blatant imbalance.  Furthermore, the two new board members selected by President Obama are lawyers having represented the AFL-CIO and the SEIU unions.  The SEIU union attorney, Mr. Craig Becker, is particularly left leaning in his views.  For example, despite the fact that the National Labor Relations Act specifically provides protection for employer-free speech in union elections, Mr. Becker has previously advocated that an employer should have no say whatsoever when it comes to union organizing of its employees. 

The newly constituted NLRB is expected to immediately focus its attention toward achieving the aims of President Obama and labor union leaders.  Although the Employee Free Choice Act (“Card Check”) has stalled in the Senate, the Board is expected to administratively reduce from 42 days down to approximately 10 days the time given to employers to campaign against a union in a union election.  It is also expected that the Board will overhaul its traditional voting process for union elections.  Currently the Board dispatches a government agent to set up a voting booth at the employer’s location for purposes of a secret ballot election.  The NLRB is now looking at creating an electronic voting service without direct supervision by a government official.  A request for information was just issued by the NLRB requesting certain employers to provide information concerning their ability to provide employees with computers and electronic mechanisms for meeting this goal.  It does not appear that the NLRB as currently constituted will have any qualms with the “individual attention” union organizers might pay to employees casting their electronic ballot outside of the presence of a government official.

 The foregoing description of the changes taking place at the United States Department of Labor and the National Labor Relations Board represent only the tip of the iceberg.  An employer serious about its bottom line will want to make sure it stays in contact with its labor and employment counsel in regard to both current and upcoming changes in law and enforcement by the United States Government.

For more information on this or any other labor and employment law topic, please contact Masud Labor Law Group at (989) 792-4499.

About the Author

Kraig M. Schutter is a partner with the Masud Labor Law Group.  He earned his law degree from Thomas M. Cooley Law School where he was awarded the Certificate of Merit in Labor Law.  He also obtained his Masters of the Law degree in labor law from Wayne State University Law School.  Kraig has vast experience consulting and representing clients in wage and hour concerns, union contract administration, grievance arbitrations, implementation and application of personnel policies, and compliance with the numerous federal and state labor and employment laws. 

This article is published by the Masud Labor Law Group, and is intended as general information only.  This article is not intended to provide legal advice or opinion, as such advice may only be given when related to specific fact situations.  Questions or comments concerning this article should be directed to the Masud Labor Law Group, 4449 Fashion Square Blvd., Ste. 1, Saginaw, Michigan, 48603, (989) 792-4499.  E-Mail:  mps@masudlaborlaw.com.  ©Masud Labor Law Group 2010.  All rights reserved.  Reproduction of this article in whole or in part, without express permission from the Masud Labor Law Group is prohibited.

Only employers with less than 50 employees are exempt from the Act, and only if compliance with the law “would impose an undue hardship by causing the employer significant difficulty or expense.” Although employers are not required to pay breastfeeding employees during the mandated lactation breaks, in view of state and federal and state employment statutes against disparate treatment and the Fair Labor Standard Act’s compensable time provisions, employers should consider all relevant laws and circumstances if they plan to consider lactation breaks as unpaid.  Employees may not be retaliated against for exerting their rights under the new law.

This new law takes effect immediately.  Thus, Michigan employers need to immediately review and change their employment practices, rules and policies regarding their employees’ break times to make certain that they are not violating the law. This includes immediately informing managers and supervisors of the new legal requirements and the need to avoid any alleged retaliatory acts.  This also includes establishing a shielded private place outside of a restroom where breastfeeding employees can take their lactation breaks without intrusion.

Please feel free to contact Masud Labor Law Group at (989) 792-4499 for assistance in complying with the new law.  The Masud Labor Law Group is available to provide employers with needed reviews, training, rules and policies changes, and to answer any other employment questions or concerns. 

 About the Author

Richard R. Vary graduated cum laude from Thomas M. Cooley Law School where he received an American Jurisprudence Book Award in Administrative Law.  While attending law school, he was a member of the Michigan Department of State Police and served on the Department’s Emergency Services Team.  Dick has considerable litigation experience in civil and criminal trials and appeals in both state and federal courts, including the Sixth Circuit Court of Appeals.  Before joining Masud Labor Law Group, Dick served as an Assistant United States Attorney conducting federal criminal prosecutions, grand jury investigations, and defending civil suits against federal agencies. 

This article is published by the Masud Labor Law Group, and is intended as general information only.  This article is not intended to provide legal advice or opinion, as such advice may only be given when related to specific fact situations.  Questions or comments concerning this article should be directed to the Masud Labor Law Group, 4449 Fashion Square Blvd., Ste. 1, Saginaw, Michigan, 48603, (989) 792-4499.  E-Mail:  mps@mpslaborlawyers.com.  ©Masud Labor Law Group 2010.  All rights reserved.  Reproduction of this article in whole or in part, without express permission from the Masud Labor Law Group is prohibited.

Employers’ Legal Duty

Amendments to the Michigan Clean Indoor Air Act (“Act”) that became effective on May 1, 2010, require that private and public employers prohibit smoking of any substance that contains a tobacco product in all public and private enclosed indoor places of employment. 

Employers’ Legal Responsibilities Under new Law

The new Michigan law requires employers to make a good faith effort to prohibit smoking in places of employment and, specifically, requires employers to do the following:

a.         Clearly and conspicuously post “No Smoking” signs or the international no smoking symbol where smoking is prohibited, including at the entrances to buildings or work places.

b.         Remove all ashtrays and smoking paraphernalia from all areas where smoking is prohibited.

c.         Ask any person smoking in violation of the Act to stop and, if they refuse, request the violator to leave, as well as inform them that they are in violation of state law and subject to penalties, and refuse to serve the violator.

Designated Indoor Areas

Employers that previously had designated indoor smoking areas must eliminate them.  Smoking indoors is only allowed in special circumstances involving pre-existing tobacco specialty retail stores, cigarette bars and casino gaming areas.  The smoking ban includes all workplaces and public places, such as restaurants, shopping malls, mechanic shops, nursing homes, schools, bowling alleys, arenas and private clubs, such as bingo halls, hotels and motels.  However, tribal casinos on Native American land are not governed by state law so smoking is still allowed at tribal casinos. 

Penalties for Non-Compliance

Employers that fail to comply with the new Michigan law are subject to a $100 fine for a first violation and a $500 fine for subsequent violations.  The health departments have authority to enforce the law.  Also, a private individual can file an injunctive relief action if the person has recently used a public place, or child care center, and feels there has been a smoking violation.

Anti-Retaliation

The Act contains a specific protection for any employee or employment applicant who objects to an employer’s failure to comply with the indoor smoking prohibition. 

Recommendations

Private and public employers should familiarize themselves with the new Michigan law banning smoking in the workplace and take action to accomplish the following:

a.         Post “No Smoking” signs or the “no smoking” symbol at building entrances and work places.

b.         Remove all ashtrays and smoking paraphernalia from non-smoking areas.

c.         Inform all employees and visitors that smoking is prohibited and subject to penalties.

d.         Ask any employee or visitor who violates the no smoking prohibition to stop, and ask them to leave if it is a public place, food service establishment, or non-smoking area of a casino.

e.         Be prepared to show affirmatively that the employer has made a good faith effort to prohibit smoking by complying with the specific duties described above.

f.          Consider establishing a no-smoking policy, train supervisors on how to enforce the smoking ban, and provide written notice that employees violating the non-smoking ban will be subject to discipline, up to and including discharge.

If you require any assistance, please contact the Masud Labor Law Group, 4449 Fashion Square Blvd., Suite 1, Saginaw, Michigan 48603, (989) 792-4499, www.masudlaborlaw.com

About the Author

Richard R. Vary graduated cum laude from Thomas M. Cooley Law School where he received an American Jurisprudence Book Award in Administrative Law.  While attending law school, he was a member of the Michigan Department of State Police and served on the Department’s Emergency Services Team.  Dick has considerable litigation experience in civil and criminal trials and appeals in both state and federal courts, including the Sixth Circuit Court of Appeals.  Before joining Masud Labor Law Group, Dick served as an Assistant United States Attorney conducting federal criminal prosecutions, grand jury investigations, and defending civil suits against federal agencies. 

This article is published by the Masud Labor Law Group, and is intended as general information only.  This article is not intended to provide legal advice or opinion, as such advice may only be given when related to specific fact situations.  Questions or comments concerning this article should be directed to the Masud Labor Law Group, 4449 Fashion Square Blvd., Ste. 1, Saginaw, Michigan, 48603, (989) 792-4499.  E-Mail:  mps@mpslaborlawyers.com.  ©Masud Labor Law Group 2010.  All rights reserved.  Reproduction of this article in whole or in part, without express permission from the Masud Labor Law Group is prohibited.