Extending Family and Medical Leave Act to Same-Sex Couples?

Changes-Ahead.jpgThe U.S. Department of Labor (DOL) is accepting comments on extending coverage of the federal Family and Medical Leave Act (FMLA) to same-sex couples.

This extension is in response to the Supreme Court ruling that federal benefits cannot be limited based on a definition of marriage as a union between one man and one woman, which was reached last year in United States v. Windsor, 133 S. Ct. 2675 (2013). That case found the federal Defense of Marriage Act’s definition of marriage unconstitutional for treating same and opposite-sex couples differently under federal law.

The full text of the Notice of Proposed Rulemaking (NPRM) and additional information about the procedure for submitting comments is available at this link to DOL’s website.  Comments must be received on or before August 11, 2014.

Under the FMLA, eligible employees are entitled to unpaid leave for family, medical and military-related reasons. However, an employee in a same-sex marriage may not be eligible to take FMLA leave to care for a partner, a partner’s child or a partner’s parent with a serious health condition. This would change under the DOL’s proposed rule in that same-sex marriages are given equal access to FMLA benefits currently enjoyed by opposite-sex marriages.

Interestingly, in determining the legal status of “marriages” and qualification for leave benefits under the FMLA, the DOL’s proposed rule adheres to state law where the couple was married and not their current state of residence. The DOL’s reasoning for this determination is to ensure equal protection for all valid marriages under federal law. The rule change provides married same-sex partners with leave to care for a spouse or a child or parent of the employee’s spouse.

For more information about and complying with the FMLA, contact employment attorney Jason Shinn.

Why I Write: Reflections of the Michigan Employment Law Advisor

Last week I was pleasantly surprised when I was included in something called a “blog hop” which is sort of analogous to what people of a certain age call a “chain letter.” The blog hop, however, is focused on a common theme.  Also common to this particular blog hop is that the chain includes bloggers who I consider to be an elite group of writers. You could say I’ve made it to the blogging mountaintop.  2150845139_f6e6d28a1d_m (1)

In fact, the instigator of this particular blog hop, Dan Schwartz of the Connecticut Employment Law Blog, sealed the deal for me when it came to deciding to start my own blog. Specifically, I was on the fence about whether to blog and the law firm I was with was less than supportive of the idea (the head of the litigation department viewed it as a waste of time and – worse – giving away “free legal advice … That’s just dumb”). Nonetheless, I found Dan’s blog and what he was doing was not only informative and entertaining, but it just made sense. And about four years later, here I am.

What I’m working on

My pet project is the Michigan Employment Law Blog, which focuses on federal and Michigan employment law issues. I went live with the blog at the beginning of 2011.

Before settling on the focus of the blog, I really wrestled with whether I could add to the employment law “conversation.” At the time there were a number of solid employment law blogs that consistently published top-shelf information (e.g., Molly DiBianca’s Delaware Employment Law Blog, Jon Hyman’s Ohio Employer’s Law Blog, Robin Shea’s Employment & Labor Insider, and (obviously) Dan’s Connecticut Employment Law Blog). In a fit of delusional grandeur, I decided nothing ventured, nothing gained.

Why do I write what I write.

For me, writing about employment law issues on my blog brings together a number of the things that I really like about being an attorney and a way to avoid what I hate.

Certainly at the top of the list of “likes” is employment law and writing: Going back to law school and when I first started practicing in 2001, I enjoyed employment law. Also, I was fortunate enough to start my career with a law firm that placed a high premium on writing well. Also, I like learning and blogging has been a great way to stay on top of, or at least even, with employment law trends.

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As to why the focus on Michigan, I was born and raised in Michigan. I lived in Detroit (the city, not the suburbs) during law school and I’ve been in Metro Detroit ever since. I think Michigan is an incredible state and I believe it has so much to offer employers and start-up companies when it comes to creating a successful business and balancing it with a fulfilling personal life.

As to avoiding what I hate, I’ve never enjoyed the sales side of the equation when it comes to the law – euphemistically called “client development” or “rain-making.” Perhaps it is a distinction without distinction, but I’ve found it much easier and more my style to “sell” my knowledge and expertise by “educating” through my blog or sharing relevant content with a prospective client. Some have called this “dumb,” but it has worked for me.

How does my writing differ from others of its genres?

To be perfectly honest, if anything I’ve tried to emulate rather than stray from writers in the genre of employment law.  What I mean by this is that going back to the attorneys referred to above, these are not only great thought-leaders but incredibly effective writers. In reading their post they clearly understand why legal writing is often less than effective and aggressively go in the opposite direction. So I’ve never tried to shy away from that style.

However, I have tried to inject my writing to some degree with my personality. I (try) to include a humorous comment or perspective and always incorporate visual content to bolster the content.

I have in the recent past started to venture into areas where I am willing to take more of a position. This is especially true when it comes to same-sex issues that arise in the workplace. As mostly an employer-side employment attorney, this stance is not necessarily where my clients’ interests always fall (what employer wants more regulations?). But in good conscience and as a matter of good public policy, I think employees should not be discriminated against simply because of their sexual orientation. See for example Sexual Orientation Discrimination and Michigan Law – Is it a Time for a Change? (the short answer is, “yes.”).

How does my process work?

For me, the process begins with just being curious and feeding that curiosity with a healthy dose of reading material. To that end, I use Twitter extensively to keep up on employment law issues. I also have a long-standing relationship with the Wall Street Journal and Businessweek. And it is still hard to compete with a well-written, thought provoking book. However, lately I have found TED Talks to be highly addictive.

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But just devouring information isn’t very productive if you can’t make sense of it and apply it. I try to take this perspective with my writing process, trying to answer the question of why does topic “X” matter and how can I use it in my own professional or personal life?

And my writing usually ends where my life begins – my wife (I know, cue the cheese). She is also an attorney, a better writer than I and (usually) a compassionate editor. In the early days I think almost every post went through her before being published.

Keeping the chain going.

I sincerely appreciate the opportunity to be included on this blog hop. It is definitely a quality group of bloggers involved and probably an even better group of people. But I’m going to need future verification on this last assumption, preferably over great dinner and/or at a fantastic bar – first round’s on me.

Returning to the original purpose of the blog hop chain, if the following were to join in on this loop I’m confident that readers would be fortunate to hear their insight:

  1. Kevin O’Keefe - He authors Real Lawyers Have Blogs. This is THE guy when it comes to blogging. And he happens to be the one who pointed me in the direction of Daniel Schwartz’s blog as an example of how to do it right. Kevin and his company are great to work with and have truly been great business partners since I started down this path. 
  2. Patrick Lamb - Patrick authors “In Search of Perfect Client Service.” I’ve never met Patrick, but I love the way he convincingly gives an intellectual middle finger to the dysfunctional status quo in the legal industry. Definitely someone to follow whether it is leading a revolution or simply writing about it.  
  3. Eric Goldman and his Technology & Marketing Law Blog. He is the thought leader’s thought leader when it comes to all things the Internet. He also has an uncanny ability to make extremely complex issues easily (or approximating) understandable.   

And thanks again to Robin Shea for inviting me to be a part of this chain. I really appreciate it.

Employer’s Social Media Policy Found Not To Violate Employees’ Rights

Social MediaA recent social media case involving the NLRB should be cause for celebration for employers. Specifically, in Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014), an NLRB administrative law judge (ALJ) had found a social media policy concerning its subsidiary, Bubba Gump Shrimp Co. Restaurants, Inc., did not violate the National Labor Relations Act (NLRA).

Initially, the General Counsel argued that Bubba Gump’s social media policy infringed on employee’s rights under the NLRA because it would tend to prohibit employees from discussing terms and conditions of employment with coworkers or third parties. That social media stated as follows:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.

The ALJ agreed that without “more,” the first sentence could violate the NLRA. But the ALJ noted that the social media policy did not outright restrict speech on job related issues – job related subject matters – but, instead, the manner in which such issues are being discussed and debated, i.e., being civil to others and their opinions:

Without more, it would be reasonable for employees reading this language to conclude that the Respondent generally frowns upon all job-related postings of any type. However, the cautionary language is modified by the language in the next sentences which may be understood to clarify that the 40 avoidance of morale problems may be “accomplished” by simply being civil to others and their opinions.

Employer Take-Aways

From an employer’s perspective this case is a good result. But it is also a reminder that the NLRB’s General Counsel continues to closely scrutinize employers’ social media policies. For this reason, it continues to be important to carefully draft social media policies that will give ALJs the opportunity to sensibly read the policies so as to not find a violation of employees’ rights under the NLRA.

For more information about employer social media policies or other workplace issues, contact employment attorney Jason Shinn.

Corporations can Hold Religious Objections in order to Opt Out of covering Contraceptives for Women.

2314002336_39e04796dc_zIn a 5-4 decision, the U.S. Supreme Court decided this morning that corporations can hold religious objections that permit them to opt out of the new health law requirement that they cover contraceptives for women.

Incredibly, this decision is the first time that the U.S. Supreme Court has ruled that profit-seeking businesses can hold religious views under federal law. In recognition of the far-reaching implications that such a decision would likely have, the justices were quick to carve out this opinion from other anti-discrimination laws or otherwise provide a shield for employers who might cloak illegal discrimination as a religious practice:

Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work-force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

Also, the decision is limited to contraceptives under the health care law. In this regard Justice Alito wrote:

Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs …

This decision was reached in what has come to be called the “Hobby Lobby” case, which is short-hand for Burwell v Hobby Lobby Stores, Inc. The Hobby Lobby shareholders had challenged the contraceptive coverage requirement under the Patient Protection and Affordable Care Act of 2010 (ACA) and asserted the corporation’s rights under the Religious Freedom Restoration Act of 1993 (RFRA) was violated. That act prohibits the“Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.”

Hobby Lobby, with its corporate headquarters in Oklahoma, employs more than 15,000 full-time employees in 41 states. The other company involved with the challenge is Conestoga Wood Specialties Corp. located in Pennsylvania. It is owned by a Mennonite family and employs 950 people in making wood cabinets.

Closer to home, this decision is a likely victory for Michigan based Trijicon, which filed a similar lawsuit. Trijicon is a military contractor that filed a 2013 lawsuit claiming the company “and its shareholders have a deeply held religious belief that life begins at conception/fertilization.” That belief coupled with the Supreme Court’s ruling will likely mean no more birth control coverage for the company’s 250 plus employees.

For more information and analysis about this decision, contact Michigan employment attorney Jason Shinn.   

The Wildcard in Noncompete Litigation – The Judge

JokerOne of the most common questions I get asked by both business clients and individuals is whether their non-compete agreement is enforceable. As explained below, a number of points will determine the answer, but none are more important than what essentially amounts to a “wild card” — the judge deciding your case.

Attorney Brett Snider wrote an informative article, “Is the Noncompete Clause in Your Work Contract Legal?” His article covers the big-picture legal issues that both employers and individuals need to generally consider when it comes to noncompete enforceability. But one point that is worth building upon is the role a judge plays in deciding a noncompete lawsuit.

Specifically, Mr. Snider notes:

The law bends toward allowing former employees to move on with their careers and allowing them to work, but you should still be aware of your employer’s noncompete agreement.

I’ve been on both sides of this bend when it comes to non-compete issues, i.e., representing employers and former employees. Its great when you’re on the right side of the bend, but not so much when you’re not.

Case in point, last week the judge presiding over a noncompete lawsuit filed against my clients had all counsel in chambers for an early intervention and scheduling conference. The judge asked two questions relevant to the enforceability issue of the noncompete agreement in dispute:

  1. How long is the restriction; and
  2. What was the geographic scope of the restriction? 

The judge was told the restriction period was five years and covered the three counties making up Metro Detroit. In response, the judge simply stated those restrictions were not reasonable. It was enjoyable listening to opposing counsel politely try to explain why the judge was “wrong” on this assessment.  

Whether the judge’s off-the record assessment ultimately becomes a ruling in this lawsuit remains to be seen. Even if it does not, it certainly changed the focus of the lawsuit away from expensive litigation to settlement discussions. Nonetheless, this example also illustrates the uncertainty that both employers and employees face when it comes to enforcing a non-compete agreement.

Closing Thoughts on Noncompete Enforcement

Certainly from a client’s perspective one of the most frustrating responses to legal question is to be told that the answer “depends.” However, when it comes to whether a noncompete agreement is enforceable, the answer will almost always be that it depends because ultimately that question and associated issues will be decided in the sound discretion of the the person who happens to be the judge. 

Even so, there are a number of steps employers can take to minimize the likelihood a judge will find company’s non-compete agreement is not enforceable. And the beginning point in this analysis is having a well-written non-compete agreement that provides reasonable protection to the employer.

This article was written by Michigan employment attorney Jason Shinn who routinely handles Michigan noncompete legal issues and lawsuits.

What Steps Can Your Business Take to Avoid Becoming a Victim of Trade Secret Theft?

Trade secret protectionTrade secret theft continues to be a major concern (or it should be) for businesses. And the numbers back up this conclusion; In an article by  by Will Yakowicz, appearing in Inc., “How to Avoid Becoming a Victim of Trade Secret Theft,” it’s noted that:

Criminal theft of corporate trade secrets is reaching epidemic levels, experts say … the number of trade secret cases in U.S. federal courts doubled between 1988 and 1995, doubled again from 1995 to 2004, and is projected to double again by 2017.

Mr. Yakowicz’s article goes on to provide business owners with great advice on how to reduce trade secret thefts in your business. Having recently wrapped a trade secret misappropriation trial filed in Michigan state court, I can definitely say that the article is worth reading and the recommendations should be meaningfully considered by any business with information worth protecting.

What happens when a trade secret misappropriation lawsuit falls apart.

For background purposes, I represented a company and its executives who were sued for claims involving trade secret misappropriation, breach of a non-compete agreement, and other business related claims. One problem with any sort of lawsuit is that often times the facts get in the way.

This became clear as two days after the trial began, the lawsuit settled on terms very favorable to my clients (Plaintiff had requested over $860,000 at Michigan’s case evaluation procedure, which resulted in the evaluation panel awarding $175,000 against my clients). However, the parties settled the lawsuit for $8,500.00 payable over time.

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Governor Snyder & Business Leaders Support Amending Michigan Law to Prohibit Sexual Orientation Discrimination

Michigan Gov. Rick Snyder said Thursday, May 29, 2014 that he would like to see Michigan lawmakers amend the state’s Elliott-Larsen Civil Rights Act to include language about sexual orientation and gender identity before the end of the year. These statements were made in an interview with Crain’s Detroit Business, as reported by Chris Gautz.

Currently Michigan’s Elliott-Larsen Civil Rights Act prohibits employment, public accommodations, public services, education, and housing discrimination based on race, religion, color, national origin, sex, age, marital status, height, weight, and arrest records — sadly, it does not prohibit discrimination based on sexual orientation or gender identity/expression. 

Crain’s Detroit also reported that Rick Baker, President and CEO of the Grand Rapids Area Chamber of Commerce, and Sandy Baruah, president and CEO of the Detroit chamber support amending Michigan’s Elliott-Larsen Civil Rights Act to prohibit employment discrimination based on sexual orientation. Ms. Baruah further explained:

Michigan’s business community is sending a very clear message about the importance of workforce diversity to our state’s future. We are in a global war for talent, and need the best and brightest workforce to compete in the 21st century economy, regardless of sexual orientation and gender identity. We are committed to a Michigan where all are free and welcome to contribute to our economic comeback.

I share Ms. Baruah’s beliefs and reasons for amending Michigan employment laws to protect against sexual orientation discrimination. See my October of 2013 article, Sexual Orientation Discrimination and Michigan Law – Is it a Time for a Change?, calling for the amendment of Michigan’s Elliott-Larsen Civil Rights Act to prohibit employment discrimination based on sexual orientation.

Gov. Snyder’s newly expressed support as well as the support of business leaders for such an amendment is an important step in the right direction for Michigan, its employees and Michigan businesses. And with the growing support for this amendment, one can be optimistic that this will translate into action.

For more information about sexual orientation discrimination and compliance with federal and Michigan employment laws, contact employment attorney Jason Shinn.

 

Monitoring Employees’ Private Social Media – Putting Together a Sensible Approach

Should Companies Monitor Their Employees’ Social Media?” This question was debated by the Wall Street Journal on 5/12/2014.

On one side of the debate was Ms. Nancy Flynn who took the position that companies absolutely must monitor their employees’ social media use, as well as use social media to screen job applicants. Or in her words:

Management has a right and responsibility to monitor how employees are using social media at all times … companies should ask for access to employees’ Facebook accounts and other private social media.

Mr. Lewis Maltby took the contrary view that monitoring employees’ social media use should be the exception. That exception being limited to when it is believed an employee engaged in misconduct and it should not be used to screen job applicants.

The fact is the vast majority of what employees do on the Internet has nothing to do with work, takes place during their private lives and is done on their personal computers … It’s simply too easy to turn social-media searches into fishing expeditions.

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Dumb Bosses and Camera Phones – Not a Good Mix for your Company

Dunce.jpgEmployers and their HR professionals may want to sit down before reading on: If a manager in your company text messages a picture of his “fully erect penis” to an employee and then fires that employee the day after she brings this to your attention, you will probably be sued. In other news, water tends to be wet.

As to text messaging shenanigans, a lawsuit filed in Genesee County, Michigan Circuit Court (PDF) (don’t worry there are no “Exhibits” attached to the complaint) claims that Suski Chevrolet Buick fired an employee the day after she complained that her boss emailed her a photo of a “fully erect penis.” The Complaint further alleges that the boss threatened to “bury” and “harm her if she sued for sexual harassment.”

Suski is being sued under Michigan’s Elliot-Larsen Civil Rights Act for sexual harassment based on a hostile environment, retaliation, and other related claims.

The Take-Away

This lawsuit was only filed in the last couple of days. And there is always two sides to every story (maybe?). But in any event, this blog rarely, if ever, gives out free legal advice, however, today is an exception: 

Based on my years of employment law experience and an otherwise keen intellect, I highly recommend that your company’s managers should not be texting pictures of fully erect, partially erect, or even a flaccid penis. In my 13 plus years of practice, I’ve never encountered an exception to this rule. And if for some reason this rule is violated, don’t follow up with threats of burying or harming anyone if they share the picture.

If for some reason a manager believes that sending a picture of his (or her) genitalia is simply just the right message for that situation, as a company carefully evaluate whether you have a legitimate basis to fire the employee if he or she decides to report the incident. And if your company concludes that firing the employee the day after the incident is reported just makes sense, you should probably get a second opinion from your employment attorney.

In all seriousness, every business needs to have an effective and meaningful anti-harassment policy. At a minimum, that policy should include three fundamental components:

  1. A statement prohibiting harassment, including sexual harassment; 
  2. A definition of harassment; and 
  3. An easy procedure to encourage employees who believe they have been harassed to complain, as well as assurances that there will be no retaliation for filing a report.

For more information about preventing and responding to sexual harassment or other workplace discrimination issues, contact employment attorney Jason Shinn. He works with businesses to comply with federal and Michigan employment laws, as well as litigating these issues in state and federal courts.

Michigan Employers Must Consider Telecommuting as a Reasonable Accommodation

Telecommuting.jpgUnder a recent federal court ruling, Michigan employers must be prepared to consider telecommuting as a reasonable accommodation under the Americans with Disabilities Act (ADA) for an employee under a 4/22/2014 court ruling.  

Specifically, Jane Harris was terminated from her position as a resale steel buyer at Ford Motor Co. This termination occurred shortly after she asked to telecommute several days per week in an attempt to control the symptoms of irritable bowel syndrome (IBS).

The Equal Employment Opportunity Commission (EEOC) took up this case and argued at the district court level that Ford discriminated against Ms. Harris on the basis of her disability and retaliated against her for filing a charge with the EEOC.

The district court rejected this argument and dismissed the case in favor of Ford. But this decision was reversed on appeal by the U.S. Sixth Circuit Court of Appeals (the federal jurisdiction covering Michigan).

Reasonable Accommodations in General

Before jumping into why telecommuting must now be a consideration as a reasonable accommodation, a brief overview of the ADA is in order.

Under the ADA, an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). An employer “discriminates” under the ADA if it does not make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business.” Id. at § 12112(b)(5). 

Returning to telecommuting as a reasonable accommodation, the EEOC argued that Ms. Harris was: (a) Qualified for the position after the elimination of the requirement that she be physically present at Ford facilities or (b) Qualified for the position with a telecommuting accommodation.

Here is the reasoning the Court used and that employers need to understand

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the work site … We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.

To appreciate the significance of this ruling, consider the district court had accepted Ford’s assertions that in-person interactions were an “essential function” of the resale buyer position: and the ”ADA requires courts to consider ‘the employer’s judgment as to what functions of a job are essential.” Accordingly, under the district court’s ruling because Ms. Harris could not be physically present at work, she was not “otherwise qualified” for the position.

What this means for Employers

Employers and HR professionals should read the entire EEOC v Ford Motor Co. opinion. But several important take-aways include:

  1. First, the Court of Appeals noted that it was not rejecting the premise that attendance is an essential function or that technology has eliminated the need to be physically at work. But, employers appear to have lost the ability to simply recite those previously magical phrases and expect to end the discussion of whether telecommuting is a reasonable accommodation. 
  2. Second, Ford conducts its operations throughout the world and has existing capabilities or the resources to facilitate a telecommuting position for employees. But the ADA applies to companies with as little as 15 employees, which must provide reasonable accommodation to qualified individuals with disabilities unless it results in undue hardship on their businesses. Certainly the costs of telecommuting have decreased through technologies, especially with may businesses moving to cloud services. But there is still a cost to consider. However, does that cost approach an “undue hardship?” 
  3. Third, employers should consider reassessing their job descriptions. Despite this ruling, the ADA still requires courts to consider “the employer’s judgment as to what functions of a job are essential.” A more detailed job description may bolster an employer’s position in illustrating what job functions are “essential,” including attendance. 
  4. Fourth, employers definitely need to have a well-defined telecommuting policy in place. That policy also needs to be consistently applied. I think the issue of consistency worked against Ford in that it allowed employees in certain positions to telecommute up to four days a week. And employees in Ms. Harris’ position were allowed to work remotely one day a week. So when Ford rejected Harris’ request to telecommute four days a week, it created a question of fact as to whether Ford fired Harris because it believed she could not perform her job duties effectively.

For questions about complying with the Americans with Disability Act or reasonable accommodations in the workplace such as telecommuting, contact attorney Jason Shinn. Mr. Shinn is a Michigan employment attorney who works with businesses to comply with federal and Michigan employment laws. Also, for additional insight on this issue ruling, see Road Rules: Ruling Now Guides Telecommuting As Reasonable Accommodation Discussion, by attorney Gabe Jiran.

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