When Does an Employer Have Notice of an Employee’s Need for Religious Accommodation?

CoExistAs an employment law nerd, I often get giddy when there is a meaty employment law issue being addressed by the U.S. Supreme Court (hopefully Justice Ginsburg took it easy on the sauce prior to oral arguments). But today I’m especially giddy because the Supremes are hearing arguments in the case captioned EEOC v. Abercrombie & Fitch Stores, Inc. The reason for the extra excitement is that I have a pending case that shares a central issue with the Abercrombie & Fitch.

Specifically at issue in the Abercrombie & Fitch case is whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

In a nutshell, a Muslim teen wore a black headscarf to her job interview with Abercrombie & Fitch. The headscarf would have violated Abercrombie & Fitch’s dress code (called the “Look Policy”). Among other things, the policy prohibits caps and black clothing. The Muslim teen, had worn a headscarf since she was thirteen because she believes it is required by her faith. An assistant manager later told a friend of the teen that she was not hired because of her headscarf.

Abercrombie & Fitch has taken the position that it didn’t violate federal anti-discrimination laws when it decided not to hire he headscarf would because it is up to the applicant or employee to make a company aware of a policy that conflicts with their religious beliefs.

The EEOC alleged that Abercrombie & Fitch had violated Title VII of the Civil Rights Act of 1964. That statute, in part, prohibits employers from refusing to hire someone because of her religious practices unless the employer can show that it would be an “undue hardship” to make allowances for the practice. The EEOC further contended that Abercrombie & Fitch should have made an exception to its “Look Policy” to accommodate the Muslim applicant’s religious beliefs. The trial court agreed with the EEOC, but that decision was appealed where Abercrombie & Fitch won with the Court ruling:

We reverse the district court’s grant of summary judgment to the EEOC. Abercrombie is entitled to summary judgment as a matter of law … Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie’s clothing policy.

Bolstering the Court of Appeals decision is that fact that the EEOC’s policy materials encourage employers to actively engage in a dialogue with applicants or employees concerning their conflicting religious practice and possible accommodations that the employer might provide for it only after an employer is put on notice of the need for a religious accommodation.

The question to be answered, however, is what notice is sufficient and whether that notice must come from the applicant/employee. A decision in this case is not expected until later this year.

What will not change, however, is that once the need for a religious accommodation to the employer’s work rule or policy is made known to the employer, the burden rests on the employer to show that it could not accommodate the employee’s religious practice without undue hardship. Typically, religious accommodation suits involve religious conduct, such as observing the Sabbath, wearing religious garb, etc., that result in indirect and minimal burdens, if any, on employers or other employees. And while not always, more often than not, an employer can often accommodate such needs without too much inconvenience or unduly burdening other employees.

For more information about religious discrimination and accommodation, contact employment attorney Jason Shinn.


Legal and Business Concerns in Responding to Employee Religious and Moral Objections

Employee religious beliefs and social media can create a firestorm for employers.Employers are often on the verge of becoming caught up in a firestorm when it comes to the religious and moral beliefs of employees. On the one hand there is the legal risks. But on the other, no business owner wants his or her business to be “trending” as the subject of a divisive public relations firestorm. Two examples illustrate these concerns:

Moral Objections to Giving Flu Vaccines.

On February 19, 2015, a federal district court judge ruled that Walgreens was within its rights to fire a pharmacist who had moral objections to administering flu vaccines. Specifically, the plaintiff, 66-year old Rodney Prewitt, was a pharmacist who had worked at the company for about five years prior to suing Walgreens. The lawsuit was filed after the pharmacy started a flu vaccine program that required pharmacists to complete a training program in order to administer the vaccines and immunize customers who asked for the service.

Prewitt, however, had moral objections to giving the vaccine and voiced these concerns at the outset and even before a lawsuit was filed. These concerns were confirmed in correspondence sent by Prewitt’s attorney to Walgreens, which documented his objection to providing immunizations “on the grounds of his moral/ethical and/or religious beliefs,” (citing to a state “Conscience Policy” law). He also referenced age discrimination in this pre-suit correspondence, which eventually formed the basis of his lawsuit.

The judge noted that Prewitt “testified that he was not allowed to work because of his conscience objection. The plaintiff proceeded under the theory that his suspension/termination were ‘wrongful’ based on his moral objection up until he realized that this claim was legally deficient.” The judge further found that Prewitt had made a minimal showing for an age discrimination claim (e.g., he was over 40, was qualified for his job, suffered an adverse employment action, and the circumstances of that action could indicate age discrimination.”

At that point, the burden shifted to Walgreens to show that it had a legitimate and nondiscriminatory reason to fire Prewitt. In this regard, the company argued that after the pharmacy started its vaccine program, administering those vaccines became a required part of Prewitt’s job. Accordingly, Walgreens demoted Prewitt and later terminated him because he refused to immunize customers. Accordingly, the Court made the following ruling dismissing the case:

The facts are clear. Walgreens made a business decision to market vaccinations, specifically the flu vaccine. Mr. Prewitt did not agree with this decision and voiced a moral objection. He refused to perform an essential part of his job. Though Mr. Prewitt’s objection may have been genuine and sincere, he has not established any unlawful discrimination by his employer.

(See Prewitt v Walgreens Order).

Doctor refuses to treat Lesbian Couple’s Infant after “much prayer.”

Last week a Metro Detroit pediatrician refused to treat an infant because the parents were lesbians. The Detroit Free Press reported that Dr. Vesna Roi, after agreeing to treat the lesbian couple’s child, later changed her mind. For reasons not reported, Dr. Roi waited until the lesbian couple showed up for their infant’s appointment and were in the waiting room to make them aware of her decision. Adding injury to insult, Dr. Roi refused to personally inform the couple and had another staff member tell the lesbian couple of the change. According to the doctor’s apology note, “after much prayer following your prenatal (visit), I felt that I would not be able to develop the personal patient doctor relationship that I normally do with my patients.”

It is important to note that Dr. Roi did nothing illegal under the circumstances — in Michigan there are few legal protections that protect the LGBT community from discrimination. But consider this story from Dr. Roi’s practice, Eastlake Pediatrics, and her fellow doctors – they are now at the center of a divisive public relations firestorm that has nothing to do with the business. Further, as of publication of this blog article, there were almost 600 comments and the story had been retweeted over 300 times. Those comments run the spectrum – from insightful t0 dergatory – and represent views at both ends of the spectrum. But none of them speak to the quality of the core services being offered at the medical practice.

In addition to responding to the public relations side of the equation, there are the legal concerns: If the doctor is an employee of the clinic, it would have to address the likely religious discrimination and/or accommodation claim the doctor would no doubt make if any adverse employment action were to be taken by the employer. And, as the above pharmacist’s lawsuits illustrates, even a weak case can be dressed up to include other claims (religious belief/accommodation) that takes time and money to defend against.


So what’s an employer to do when an employee has a moral or religious objection that implicates an employer’s business? Unfortunately, there is no single right answer or set of recommendations that can be offered because the appropriate response will depend upon the actual circumstances. But even so, it is likely that the employer will need to make difficult decisions to balance protecting the brand and its business in the eyes of its customers while respecting the religious and other rights of employees. Have fun with that.

For more information about this article or complying with federal and Michigan employment laws, contact attorney Jason Shinn.

Building an Effective HR Foundation is Critical to a Start-up’s Business Success

Building a BusinessMichigan, like many states, seeks to create a vibrant start-up environment. And as a further sign of that commitment, February 18 through February 25, 2015 marks Entrepreneurship Week in Michigan under a recent proclamation from Gov. Snyder.

The preamble for the Governor’s proclamation notes that:

More than 70 percent of young Americans envision starting a business or doing something entrepreneurial as adults…Entrepreneurship is critical to success in the workplace and in communities as it brings ideas, creativity and innovation to life and drives economic growth on local, state and national levels … Entrepreneurship encourages job creation and is a vital part of Michigan’s reinvention and continued growth.

While the pomp and circumstance surrounding a whole week dedicated to entrepreneurship is nice, it is critical to also focus on an issue that every boot-strapping entrepreneur needs to address as they grow their business – employees.

Certainly business startups will face any number of hurdles in starting their business. But employee issues often top the list. In this regard, most start-ups encounter problems if they fail to have the right employment documents ready to be signed by newly hired employees. The following employment documents should be in every new company’s HR toolbox:

  • Employee Offer Letters and Employment Agreements – Every start-up should have a standard offer letter to be signed by new employees. Among the topics to include in the offer letter will be the terms and conditions of the position; noting whether it is “at-will,” meaning the employee or employer may terminate the employment relationship for any reason or no no reason at all (assuming the reason is not for unlawful discriminatory reasons or other reasons that violate applicable law), and the start-date. Another provision employers should consider including is asking the employee to sign and return an acknowledgment that the employee is able to accept the position without violating any obligations to prior employers, e.g., noncompete restrictions.
  • Intellectual Property or Inventions Assignment Agreement – Such agreements provide that any inventions, ideas, products, or services developed by the employee during the term of employment and related to the business belong to the company and not the employee.
  • Employee Manuals – Employers should consider employee manuals as roadmaps for how your company operates. A few common examples of items that should be covered in an employee manual include anti-harrasment and discrimination policies, how to report such issues and other employee misconduct, company policies on vacation, employee social media policies, and computer and internet usage policies.

A word of caution; It may be tempting to try and save a few dollars by “borrowing” the above HR documents from a former employer or scouring the Internet for free forms. But such penny pinching can also leave your business unprotected. Consider for example a recent post about a company that had won at the trial level in a Family Medical Leave Act lawsuit, but that decision was reversed on appeal because of a mistaken representation made in the company’s employee manual. Such mistakes also frequently happen when it comes to improperly or incomplete noncompete agreements.

Noncompete and confidentiality agreements are also an area where entrepreneurs often get their companies into trouble by not having such documents drafted specific to their needs. See DIY Employment and Noncompete Agreements: Are You Getting What you Pay For? In sum, if you are investing your time, money, and other resources into starting a business, then you should also plan on protecting that investment with appropriate employment documents and other legal protections.

For more information about employee manuals, employee contracts, noncompete agreements and other employment related documents, contact attorney Jason Shinn.

Flag on the Play: Court Takes Away Employer’s Victory Because of Mistake in the Employee Manual

Throwing the Flag Employee MisconductThis past week saw the Seattle Seahawks skillfully avoid winning back-to-back Super Bowls because of (arguably) bad decision-making (all the Seahawks had to do was move the ball 36 inches into the end-zone – the only other decision worse than passing in that situation was having Katy Perry perform at half-time, but I digress).

An employer found itself in a similar situation and after further review its victory in an employment-related discrimination claim was reversed because of poor decision-making in relation to its employee manual.

Specifically, the Sixth Circuit Court of Appeals (the federal circuit that covers Michigan employers) reversed a trial decision in favor of an employer in Tilley v. Kalamazoo Cnty. Rd.Comm’n (1/26/2015). The employer was sued for claims under the Family Medical Leave Act (FMLA) (29 USC § 2601 et seq.) and under Michigan’s Elliott-Larsen Civil Rights Act.

The FMLA and Eligibility

For background purposes, the FMLA provides employees “a total of 12 workweeks of leave during any 12-month period for . . . a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). Importantly, these FMLA benefits are not available to all employees. Only an “eligible employee” who works for an “employer” – as both terms are defined under Act – may obtain such benefits.

The Court of Appeals agreed with the district court that the plaintiff employee was not FMLA eligible pursuant to what is called the FMLA’s 50/75 Employee Threshold (to be FMLA eligible, an employer must employ at least 50 employees at, or within 75 miles of, the employee’s worksite at the time the FMLA leave was requested). Again, it was undisputed that the Road Commission did not employ at least 50 employees at, or within 75 miles of, his worksite at the time the plaintiff sought FMLA leave.

At this point, the employer should have been well into its touchdown dance. But there was a flag on the play – an incorrectly drafted employee manual. The Court, while acknowledging the plaintiff employee was no FMLA eligible, noted that the employer’s manual said otherwise:

[Plaintiff] showed that the Road Commission’s Personnel Manual (the “Manual”) contained a clear misrepresentation as to his eligibility to apply for FMLA benefits … This is an unambiguous and unqualified statement that Road Commission employees, like [Plaintiff], who have logged 1,250 hours in the year before seeking FMLA leave are covered by the FMLA and are eligible to apply for FMLA benefits …. The Road Commission could have qualified its statement concerning employee eligibility … the Road Commission’s unqualified statement that employees in [Plaintiff’s] position are covered under the FMLA satisfies the misrepresentation element of the equitable estoppel test.

The equitable estoppel reference refers to a doctrine that courts may apply to employer policy statements regarding an employee’s FMLA eligibility. If applied, the doctrine prevents the employer from raising non-FMLA eligibility as a defense.

Take-Away for Employers

The employee manual is one of the most basic and recognized tool in an employer’s toolbox. It really should be the fundamental cornerstone for any employer’s HR best practices.

And one of the most popular questions our law firm gets from start-up companies and growing companies is “Why should my company pay your law firm for an employee manual when I can just [insert any number of sources where employee manuals are magically produced]?” This case perfectly answers that question – when an employee manual is not properly drafted or is not regularly updated, it is as bad as not having one in the first place and can cost your company significant multiples of what it would have cost to properly draft it in the first place.

For more information about complying with federal or Michigan employment law, including implementing HR best practices and drafting employee manuals, contact employment attorney Jason Shinn. His law firm offers complete employment and HR packages that provide a solid game plan for start-up and growing businesses.

To Be or Not to Be … An Employee – Second Circuit Expected to Answer Question of When an Intern is an Employee

Michigan Employment LawIs an intern an employee? This question is expected to be answered in the coming weeks – at least for employers in the Second Circuit.

Specifically, the Federal Court of Appeals for the Second Circuit Court is expected to answer this question after it reviews two earlier conflicting opinions in two separate cases filed that were filed by unpaid interns. The opposite outcomes in the unpaid intern cases essentially left employers and their unpaid internship programs in legal limbo.

The Fox Searchlight Black Swan Intern Case – In June 2013, a New York district court judge agreed with former Fox Searchlight Pictures interns that they deserved minimum wages for their work at the company. The two interns in that case worked on the 2010 film Black Swan and claimed in a lawsuit that during their time at Fox, they received no compensation even though they completed work assignments that were typically the responsibility of paid employees. Those tasks included taking lunch orders, answering phones, and making travel arrangement.

The Hearst Corporation Intern Case – In May 2013, a conflicting decision was reached when a New York District Court judge agreed with Hearst Corporation and ruled that it did not violate labor laws by not paying its unpaid interns while they interned at Harper’s Bazaar, Cosmopolitan, Marie Claire, and other magazines.

Despite the similarity of the cases, the District Court judges reached opposite results because they relied on different approaches to determine if interns should be covered by employee protections. Specifically, the District Court judges relied upon a 1947 Supreme Court ruling in a case about railroad trainees, which eventually served as the basis for an internship fact sheet the Department of Labor compiled in 2010. That fact sheet identifies six criteria that the federal Labor Department says must be met in order for an unpaid internship to be legal, which are as follows:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

So two judges, looking at substantially identical facts, using the same test, but reaching opposite conclusions? Essentially what happened is that the judge in the Fox case used the Department of Labor criteria as a rigid checklist. As such, the judge found that the movie studio failed to meet every requirement. In contrast, the judge in the Hearst case, used the rules as more of a “framework” (referred to as a “balancing of the benefits test”) for assessing the employee-employer relationship, which looks to the “totality of circumstances” to evaluate the “economic reality” of the relationship. Under the “framework” test, the judge in the Hearst Case decided the employer met enough of the Department of Labor’s requirements to make its unpaid internships legal.

The Second Circuit is expected to rule in the coming weeks which interpretation is correct.

Closing Thoughts

Obviously Federal and Michigan labor and employment laws apply to employment relationships. But the two cases above illustrate that the question of what counts as an employment relationship for legal purposes is not so simple. And because of the uncertainty, some employers have simply ended their internship programs. Others have began to pay interns (See Claire Zillman’s article in Fortune, “Unpaid interns have their day in court—again“).

For me personally, I’m pulling for the “framework” argument to win, but for purely personal and selfish reasons that have nothing to do with representing employers and a belief that internships provide valuable experience. Instead, I grew up believing rules were more of a guide or a framework rather than a rigid mandate to follow. This view, however, was often at odds with my parents and teachers. So I’m looking for validation from the Second Circuit Court of Appeals that I had the correct view. An opinion is expected to be issued in the coming weeks and I have my “I told you so” letter ready to go out.

For more information about your company internship programs or other Federal and Michigan employment law compliance issues, contact employment attorney Jason Shinn. Mr. Shinn has been practicing law since 2001 in the areas of federal and Michigan employment law and litigation, as well as investigating workplace misconduct. He prefers to work with companies on the front end in order to avoid employment lawsuits.


Proactively Managing Employment Law Risks – Lessons from Brazilian Jiu Jitsu

Business Jiu JitsuOutside of being an employment law attorney, I practice Brazilian Jiu Jitsu. It is a grappling based martial art that owes its modern development to the Gracie family, especially Helio Gracie. But it also offers a broader perspective for approaching conflict outside of physical matches. And – since business is rife with conflict – it frequently offers applications to businesses and start-up companies, especially in the area of employment law.

This point was driven home at a recent class. One of my instructors, Josh Bagely, (on the left in the link) was teaching a particular technique but expanded on three core principles that need to form the basis of every jiu jitsu technique:

  1. Preservation – First, regardless of what is happening in a jiu jitsu match or a self-defense situation, before you can take any other action, you must first make sure you are in a position where you can protect yourself;
  2. Control – Second after you’ve taken steps to protect yourself now is the time to work to gain control of the situation and your opponent. Here you are taking steps to put yourself in a position for going on the attack;
  3. Attack – Once you have the first two principles taken care of, you are now going to be in a strong position to go on the offensive in terms of looking for submissions or other scoring opportunities.

Instructor Bagaly is a jiu jitsu black belt and a very successful competitor. He further explained that his success on the mat goes back to continually assessing whether he is following these principles. In other words, there are times he has taken care of the first two concepts and began to work towards a submission, i.e., an attack. But his opponent counters, which may require going back to regaining control. Or, if you take a big gamble (or are less experienced like me), you may find yourself having lost significant ground and forced to expend a lot of energy and effort focusing on preservation or regaining control. In sum, failing to abide by these principles in a jiu jitsu match often results in being on the wrong end of a submission (trust me on this).

Business and Jiu Jitsu – Protecting the Business, Controlling its Growth, and Competing in the Marketplace

Professionally speaking, in working with start-up companies and even established businesses, we often see where these principles have not been looked at in a while or even overlooked from the outset. For example, entrepreneurs will often take appropriate steps to form a business but then everyone involved in the venture jump right into bringing the product/service development to market. So they have gone from minimal preservation (forming a business entity) to attacking, i.e., getting the product or service to market. It is not uncommon to find that in that rush one founder has the company’s domain name registered in his or her own personal name. Another founder may be contributing the initial intellectual capital to be expended upon by another employee, founder, or both.

But in these circumstances the control aspect was ignored in terms of not having having or having inadequate non-compete, non-disclosure, or employee invention/intellectual property assignment agreements in place to cover these and other situations. Such agreements allow for a significant measure of control for building the company and putting it in a place to successfully compete in the market place, and an eventual exit strategy for the founders. Without that control, however, it is not uncommon for founders battling over ownership interest in designs, software, or other intellectual property with employees in addition to employment law compliance issues that can arise along the way.

Another very common fact pattern where businesses get into trouble is ignoring the need for ongoing assessment. After moving beyond start-up, your company is now expanding. But it has been a few years since your company first drafted its employee manual/employment contracts. And since that time, there may have been significant changes to workplace laws or “novel” theories by employment-based regulatory agencies as to what is or is not permissible in company employee manuals. If these issues aren’t updated, you may have a ticking time bomb hiding in your company’s employment documents.

Or maybe a significant court opinion has come down limiting the effectiveness of certain restrictions in a non-compete agreement. Going back to the concepts of preservation, control, and attack, your company should assess whether it is still on solid ground to maintain appropriate control of employment risks and opportunities before expanding its human resource assets. Otherwise, the next round of competition may not be against competitors, but rather against a former employee who is challenging his or her non-compete restrictions from the offices of your competitor forcing your company to expend time and resources on legal fees dealing with ancillary issues that, if properly controlled in the first place, would not have been an issue or an issue easily dispensed with early on in the dispute.

Closing Thoughts on Business and Jiu Jitsu Strategy

One of the appealing aspects of jiu jitsu training is certainly its effectiveness in terms of self-defense. But what keeps me going back is that at my particular gym instructors like Harvey Berman, Angelo Popofski, Brandon Fracassi-McDaniel, and  Josh Bagaly go beyond teaching just a bunch of techniques. Instead, they provide rich context for the jiu jitsu principles behind the techniques. And that context frequently extends outside of the gym into law, business, and life in general. This isn’t surprising when you consider how its founder, Helio Gracie, viewed the art: “Jiu Jitsu is personal efficiency … which anyone can do. It is the force of leverage against brute force.”

As an employment and business law attorney, this quote drives home the point of how companies and start-ups should approach business – continually taking the steps to monitor and investing the time to allow their business to efficiently compete without having to resort to brute force in the form of substantial legal fees that escalate pursuing or defending against drawn-out litigation. For more information about federal or Michigan employment legal issues or otherwise discussing employment best practices for your start-up company, contact attorney Jason Shinn. Since 2001, he has represented entrepreneurs, start-up companies, and established businesses in responding to employment and business law challenges. This experience includes pursuing or defending such matters in state and federal courts.

Business Owners Need to Protect Against Being Burned by Social Media Mistakes

Social Media FirestormSocial media issues in 2014 certainly had a significant impact when it came to employment law issues. And these issues will continue into 2015. But social media issues are not limited to front line employees. Instead, they need to be addressed at every level of the organization – including owners.

Take for example a Metro Detroit business owner and his company who ended up at the center of a social media firestorm. Here’s the cliff-note version: Following the shooting of New York police officers Rafael Ramos and Wenjian Liu, the owner of Detroit BBQ Company, Tim Idzikowski, posted on his personal Facebook page the following:

How many times did they think they were going to kick the hornets nest before they got stung? These guys ‘can’t breathe’ now either.

In doing so, Mr. Idzikowski drop-kicked his own hornets’ nest. It is being reported that following this post a Detroit police officer saw the message and then published Idzikowski’s phone number to a forum. Mr. Idzikowski has since received death threats and an onslaught of angry phone messages. And his business is allegedly facing a boycott and one business partner has since cut ties with Detroit BBQ – Kuhnhenn Brewing Company announced it will stop using it to cater at its Warren location.

Finally, Detroit BBQ is seeing a significant increase in negative Facebook and Yelp reviews since Mr. Idzikowski’s Facebook posting was made: In a span of 24 hours the Detroit BBQ Company’s Facebook page received over 50 negative reviews).

Social Media Take-Aways for Employers and Business Owners

“Traditionally” employee social media issues often arise in the following areas:

  • Drafting narrowly-tailored social media policy protecting your legitimate business interests that won’t run afoul of the NLRB’s concern about having an overbroad and undefined terms that may chill your employees from engaging in protected concerted activity; 
  • Leveraging the benefits of the publically available online information about applicants to get the best and brightest, while minimizing the chance your business doesn’t learn “too much” information that could open the doors for a discrimination claim; and
  • Balancing the need to monitor what goes on in your company’s workplace and employees’ privacy rights. 

And these issues will continue to play a significant role in employment law compliance and litigation. But business organizations need to make sure their social media risks management extend to all levels of the company – front line employees, managers – C-Suite executives, and owners. Otherwise you may find the business is trending for all the wrong reasons, which can threaten, or worse, your entire business.

As one who frequently makess it a point to enjoy the perks of being at the top of the food chain, Detroit BBQ’s social media missteps is unfortunate because it is very respectable BBQ. But whether that is enough to overcome the current social media firestorm it faces remains to be scene. 

For more information about protecting your business against social media legal risks, contact attorney Jason M. Shinn.

Proposed Michigan Bill Would Make it Easier for Individuals to Clear Convictions from Records

Criminal background checksMichigan’s Senate Judiciary committee is scheduled to consider a bill tomorrow that would make it easier for individuals previously convicted of certain crimes to have their records expunged.

Specifically, Michigan House Bill 4186 would allow individuals convicted of a single felony or a couple of misdemeanors to apply to have them removed from their record.  Notably, the bill’s sponsor, Stacy Erwin Oakes, is a former Michigan Assistant Attorney General who previously prosecuted criminals under both Democratic and Republican Attorney Generals (Granholm and Cox, respectively).

Michigan law currently allows for expungement if (1) the person does not have more than one conviction or (2) the person has two or three convictions and all but one are for a minor offense, as defined by the statute. If either of these exceptions apply, proceed to the next question. The proposed legislation is intended to give people not otherwise eligible under current law another chance to have their records expunged.

Such expungements are especially critical when it comes to employment opportunities because an expungement has the effect of setting aside a prior criminal conviction. This permits a job applicant to honestly represent in a job application or to a potential employer and others that he or she has not been convicted of a crime. 

Under the proposed legislation, however, there are certain convictions that could not be removed, such as child abuse and acts of terrorism. The bill previously cleared the state House without a single dissenting vote.  The bill must pass the state senate this week or it dies and would need to be reintroduced next year. The smart money is on the bill dying, but that is just an educated guess.

For more information about conducting criminal background checks of job applicants and in hiring decisions, see our prior post What Employers and Employees Should Understand about Conducting Background Checks. And for more information about complying with federal or Michigan employment law or improving your company’s risk management of human resource issues, contact attorney Jason M. Shinn.

NLRB Allows Employees to Use Employers’ Email System to Engage in Protected, Concerted Activity

email, nlrb, employer email, employer email policiesCompanies will need to revise their employee email policies following a ruling from the National Labor Relations Board (NLRB) (Purple Communications on December 11, 2014).

Specifically, in a 3-2 decision (three Democrats, two Republicans) held that Section 7 of the National Labor Relations Act allows,

… employee use of e-mail for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their e-mail systems …

Section 7 essentially protects the right of employees to unionize or take collective action.

Significantly, the Purple Communications ruling reversed a 2007 decision, Register-Guard, which had permitted employers to restrict e-mail use under those same Section 7 rights at issue in Purple Communications.

The basis for this reversal (other than the make-up of the NLRB) according to the majority opinion is that the prior Register-Guard opinion failed to “fully acknowledge the major role” email plays in employees’ workplace communications and because it gave too much weight to employers’ property rights (i.e., control over its technology systems).

With this change, employers need to understand that the NLRB will now “presume that employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected activity on nonworking time.” An employer may rebut this presumption if it demonstrates “special circumstances necessary to maintaining production or discipline justify restricting its employees’ rights.”  

Limitations under the Purple Communications Decision

The Purple Communications decision has limits according to the majority:

  1. It doesn’t require employers to provide access to e-mail where it has not chosen to do so;
  2. It permits a “total ban” on e-mail use during nonworking time if there are “special circumstances;” and
  3. It since it didn’t address e-mail use by nonemployees,
  4. It does not prohibit employees from sending large attachments or audio/video files, if the employer can demonstrate that they would interfere with the employer’s email systems.
  5. Significantly, nothing in the Purple Communications decision prevents an employer from monitoring company computers and email systems for legitimate management reasons. Such reasons include basic operational issues like ensuring productivity and preventing email misuse (think harassment or other misconduct), except the employer cannot implement a “special” monitoring program or policy that is out of the ordinary. This scenario would likely occur if an employer increased its monitoring during an organizational campaign or focused its monitoring efforts on protected conduct or union activists. 

The bottom line is that employers can’t stop their employees from using work e-mail during nonworking time. Therefore, employers should review their current policies applicable to employee email and technology in order to comply with this decision.

Documenting Employee Performance Issues and Teeth Cleaning – Not Fun, But Necessary

Employment Law Due DiligenceFor many employers, investigating and documenting poor employee performance issues is about as fun as going to the dentist. But a recent Michigan Court of Appeals decision illustrates the importance of both because it often becomes a critical defense against claims that the employee was disciplined or terminated for unlawful or discriminatory reasons.

Worker’s Compensation and Retaliation

In Larue v Gary P. Mulnex DDS, PLLC, the plaintiff was employed as a dental hygienist. She worked at this practice for 26 years before the defendant, Mulnix, purchased the practice. About a month after Gary Mulnix bought the practice, plaintiff was injured after she tripped on equipment at work. Co-workers assisted her in getting back on her feet and took her to a an urgent care facility. A workers’ compensation claim was filed and a month later, plaintiff was terminated.

At trial, the plaintiff relied on circumstantial evidence to show retaliation, which included that she was terminated from employment by a letter dated 12/13/10, which was soon after her 11/17/10 injury and subsequent workers’ compensation claim.

The trial judge disagreed and found that the plaintiff could not demonstrate a “causal link” between filing for workers’ compensation and her termination from employment. The judge reasoned that a “correlation between the time of the protected activity and time of the adverse employment action does not demonstrate a causal relationship.” The trial judge also concluded that the defendant employer met its burden of demonstrating a legitimate business reason for terminating plaintiff’s employment.

On this point, the employer offered evidence that plaintiff was terminated for job performance issues observed between the time the new owner purchased the practice and plaintiff’s injury. Such performance issues included on more than one occasion finding poor tarter cleaning and failure to timely provide x-rays. Bolstering the employer’s position, the dentist reviewed about 10 patient records for patients treated by plaintiff between 10/22/10 and 12/3/10, which showed “plaintiff’s poor job performance, including poor calculus cleaning and failure to timely provide x-rays.” Adding to this, another hygienist who worked for the defendant employer stated in an affidavit that she had also noticed tarter accumulation that was never treated on a number of plaintiff’s patients.

On appeal, the Court found the trial court did not make a mistake in determining that the defendant employer established a legitimate business reason for the plaintiff’s discharge, and that it was not a pretext. Accordingly, the court affirmed the trial court’s order granting the defendant employer’s summary disposition motion.

The Take-Away for Employers

This case illustrates two important points for employers. First, terminations are, unfortunately, a part of the employment relationship. And ideally if it becomes necessary to terminate and employee, your company will have documented the nondiscriminatory and legitimate reasons for that termination. It is this documentation that will become invaluable if the terminated employee later claims that determination was unlawful for any number of reasons, including retaliation or discrimination under federal or Michigan employment laws. In sum, sloppy documentation, like sloppy teeth cleaning, can cause significant problems.

Second and not as obvious, when it comes to purchasing a business, one of the most important areas of due diligence should focus on employee and HR issues. This is often where problems tend to fester and this is especially true where the the value of the business being purchased is derived from the quality of services provided or good will.

Returning to the purchase of the dental practice, in supporting the employer’s position that it terminated the plaintiff for legitimate reasons, the employer went back and examined prior patient records relative to cleanings performed by the plaintiff to find proof of subpar performance. Certainly that information was available prior to the purchase, but the purchaser had not examined it. Otherwise, the purchaser could have made an informed decision to not continue the hygienist’s employment or used the discovered deficiencies in patient care to negotiate a lower purchase price from the seller.

From our law firm’s experience in representing both sellers and buyers, deficiencies in employee matters or anticipated employment litigation can significantly lower the purchase price in negotiations or make it completely unattractive.

For more information about federal and Michigan employment law or conducting employment related due diligence when buying a business, contact attorney Jason Shinn. Since 2001, Jason has represented employers in complying with federal and Michigan employment laws. He also routinely collaborates with purchasers and their legal and financial teams as an employment law specialist when it comes to evaluating human resource and employeee issues involved in the purchase of a business or making HR related improvements to a seller’s business to increase its value.