What President Trump’s Supreme Court Nominee Means for Employment Law Cases

Trump Supreme Court pickOn January 31, President Trump announced that his U.S. Supreme Court nominee is Neil Gorsuch. Judge Gorsuch sits on the U.S. Court of Appeals for the Tenth Circuit. If confirmed, he would fill Justice Antonin Scalia’s seat.

Judge Gorsuch authored a dissenting opinion that exemplifies how he will likely affect employment law decisions if he is confirmed to the U.S. Supreme Court. The dissent is from the case Transam Trucking, Inc. v. Admin. Review Bd. (10th Cir., 2016).

The plaintiff, Alphonse Maddin, was employed as a truck driver by TransAm Trucking (“TransAm”). In January 2009, Maddin was transporting cargo when the brakes on his trailer froze because of subzero temperatures. Judge Gorsuch explained that Maddin called TransAm for help and “someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option).” Madden, however, chose to unhook the trailer and drive his truck to a gas station. In response, TransAm fired him for disobeying orders and abandoning its trailer and goods.

Both an administrative law judge (“ALJ”) and Department of Labor (“DOL”) Administrative Review Board concluded Maddin was terminated in violation of the whistleblower provisions of the Surface Transportation Assistance Act (“STAA”). He was ordered reinstated with backpay. TransAm filed a Petition for Review of the Review Board’s Final Decision and Order, which Judge Gorsuch’s colleagues denied.

In dissenting, Judge Gorsuch clarifies that he would have reversed and found for the employer, TransAm. His dissent also offers these insights into what a Justice Gorsuch will bring to the Supreme Court.

Judge Gorsuch is a textual literalist 

First, much like Justice Scalia, Judge Gorsuch is likely to be a textual literalist with statutory enforcement. Consider for example this dissent:

The Department of Labor says that TransAm violated federal law … But that statute only forbids employers from firing employees who “refuse[] to operate a vehicle” out of safety concerns … The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place.

Judge Gorsuch’s colleagues believed the subject statute, if not expressly, was intended to and afforded the protections received by the trucker, even if not expressly so noted in the statute.

Not Inclined to Second-Guess an Employer’s Business Judgment.

Second, Judge Gorsuch is likely to give substantial deference to an employer’s business judgment. Here is what he had to say on this issue in the TransAm case:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

Judge Gorsuch reached a similar conclusion in a 2012 case involving a religious discrimination claim brought by a former employee who believed his employer discriminated against him because he was a Muslim. In the case, Kaiser v. Colorado Dept. of Corrections (504 Fed. App’x 739), Judge Gorsuch upheld the dismissal. In doing so, he wrote, “it is not our function under the federal discrimination laws to tell employers how best to go about their jobs … maybe others would have gone about the job differently than [the terminating supervisor] did,” but that was not for the court to decide.”

Not a Fan of Giving Judicial Deference to Administrative Agencies

Third and perhaps the area where a Justice Gorsuch will have the most impact on employment law decisions relates to how much deference will be afforded to agencies responsible for enforcing such laws.

This is because Judge Gorsuch is a vocal critic of giving undue judicial deference to administrative agencies. This deference is often called Chevron deference from the case Chevron Inc v. Natural Resources Defense Council, Inc. (1984). Under the Chevron principle, courts defer to an agency’s interpretations if a law’s language is ambiguous, the agency has Congressional authority to issue regulations interpreting the law and the interpretation is reasonable. Chevron deference is the highest level of deference a court can give.

However, Judge Gorsuch considers the Chevron doctrine as putting too much judicial and legislative authority in executive agencies. He succinctly explained his criticism in an August 2016 concurring opinion in Gutierrez-Brizuela v. Lynch (10th Cir., 2016), a non-employment immigration case against the federal government. According to Judge Gorsuch, the Chevron standard,

permits executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.

This animosity towards giving agencies like the Equal Employment Opportunity Commission (EEOC), the Department of Labor, or the National Labor Relations Board too much deference will likely benefit employers who must navigate an increasingly complex web of regulations and interpretations.

Gorsuch’s views on deference could be critical to the outcome of cases involving the EEOC interpretations, NLRB, and Labor Department rulemaking that are presently making their way through the circuit courts right now. Of particular concern, Of particular concern, however, is what deference would a Justice Gorsuch give to the EEOC’s interpretation that Title VII’s sex bias prohibition includes sexual orientation discrimination. The EEOC has claimed that it does and this issue is pending before multiple federal appeals courts.

The Senate is expected to hold confirmation hearings for Judge Gorsuch in late March or early April. Thereafter and barring no filibuster or other procedural delays, the full Senate would likely immediately vote on whether to confirm Judge Gorsuch.

What Repealing Obama Care Means for Employees Who are also Nursing Mothers

Maternity leave for working mothersA signature campaign promise for Donald Trump was to repeal the Affordable Care Act (ACA), commonly called Obama Care, and replace it with … well, something to be determined. With President Trump now in office, the ACA is officially on life support with Republicans ready to pull the plug.

However, the ACA is a highly complex and voluminous statute. It also touched upon many aspects of the employment relationship outside of health insurance.

Nursing Mothers and the ACA

One such area has to do with working mothers who are nursing. The ACA sought to promote the Surgeon General’s Call to Breastfeeding, which detailed numerous health benefits for both babies and their mothers. These benefits included:

  • Breastfed babies have a decreased incidence of SIDS;
  • They are less likely to develop asthma and obesity;
  • Mothers who breastfeed are less likely to develop breast and ovarian cancers; and
  • Breastfeeding also saves an average family between $1200-$1500 in the first year, in addition to significant savings in healthcare.

One impediment to breastfeeding found by the Surgeon General was a lack of accommodation for breastfeeding or accommodation for expressing milk at the workplace. As Forbes notes (See An Obamacare Repeal Could Strip Women of Workplace Breastfeeding Protections, by Claire Zillman this is a “uniquely” American problem:

The problem that the breastfeeding provision sought to solve is uniquely American. Since the United States is the only industrialized nation in the world without paid maternity leave, many new mothers are forced to return to work shortly after giving birth. In fact, 59% of first-time mothers return to paid work in the first three months postpartum. At the same time, the American Academy of Pediatrics urges them to exclusively breastfeed their newborns for six months, since breastfeeding is shown to benefit the health of both babies and new moms. That leaves many women with an agonizing choice: Stop breastfeeding, take unpaid time off work, or figure out a way to nurse or pump milk on-the-job.

With this in mind, the ACA amended the Fair Labor Standards Act to require guarantees to working mothers to have a private area for to pump. This private area could not be a bathroom and had to have access to a sink any refrigerator. Small businesses are exempted if the requirements would “impose an undue hardship by causing the employer significant difficulty or expense.”

Repealing the ACA and What it Means for Nursing Mothers

If the ACA’s breastfeeding provision does not survive, then it falls to states to protect the rights of breastfeeding women in the workplace. Presently 28 states plus Washington, D.C., and Puerto Rico had laws similar to the Obamacare provision according to the National Conference of State Legislatures.

However, Trump and his fellow Republicans’ motivation to repeal the ACA have routinely focused on other aspects of the ACA (e.g., insurance mandates, subsidies, and Medicaid expansion). But that doesn’t mean under President Trump the breastfeeding provision would likely be enforced less aggressively.

For example, President Trump signed an executive order (Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal) directing federal agencies to “exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement” in the ACA that places a cost or burden on businesses and individuals. This could give the agency that enforces the provision, the DOL Wage and Hour Division, discretion to grant more hardship waivers.

In contrast, businesses may find that with or without the ACA provision it makes sense to continue to maintain a workplace friendly to nursing mothers regarding public relations, recruiting, and reduction in overall lost employee productivity due to the health benefits cited by the Surgeon General’s report  referenced above.

EEOC Has a New Sheriff – Trump Appoints Victoria Lipnic as Acting EEOC Chair

Change in leadershipPresident Trump appointed Commissioner Victoria A. Lipnic as acting Chair of the EEOC. Ms. Lipnic began serving as an EEOC Commissioner in 2010 after being nominated to serve by President Barack Obama. Mr. Obama again nominated her to serve a second term ending on July 1, 2020. As explained below, this is good news for employers. But it is probably a “best case scenario” for employees too in light of Trump’s other appointments.

Trump has been criticized for the lack of relevant experience in his cabinet appointments (did you catch the testimony from his nominee for Secretary of Education, Betsy DeVos – brutal). But the same cannot be said about Ms. Lipnic.

Ms. Lipnic’s Prior Employment Law Experience

Ms. Lipnic brings a wealth of relevant employment law experience. She has worked at the Department of Labor, serving as the Workforce Policy Counsel to the Republican Majority members of the Committee on Education and the Workforce in the U.S. House of Representatives, and she was an attorney for labor and employment matters for the U.S. Postal Service.

Highlights of Ms. Lipnic’s Prior EEOC Work 

While Ms. Lipnic’s appointment generally bodes well for employers, her prior work suggests she will not be dogmatic when it comes to Republican/employer-friendly policies. Here are a few notable highlights involving Ms. Lipnic:The

  • The EEOC’ held in Baldwin v. Foxx decision that discrimination based on sexual orientation is necessarily a form of sex discrimination and, therefore, violates Title VII. This EEOC decision was significant on two fronts: It marked the first time that the EEOC issued a ruling stating that claims for sexual orientation discrimination are covered by Title VII as a form of sex discrimination and Ms. Lipnic dissented in the decision. Since the time of the EEOC’s decision, the scope of Title VII’s sex discrimination provision, including its application to gay, lesbian, and transgender employees, continues to be litigated in federal courts. And such courts have shown a willingness to not follow the EEOC’s lead. See Hively v. Ivy Tech Cmty. Coll. (7th Cir., 2016) 830 F.3d 698 (The U.S. Court of Appeals for the Seventh Circuit decided against the EEOC’s Foxx decision and held Title VII did not protect against discrimination based on sexual orientation).
  • Ms. Lipnic departed from her other Republican member in support the EEOC’s 2012 guidance on criminal background checks. This guidance recommended against blanket exclusions of convicted individuals in favor of individualized assessments of whether an employer’s criminal conduct exclusion is job-related and consistent with business necessity.
  • In 2014, Ms. Lipnic also dissented in the EEOC’s pregnancy guidance. Notably, this guidance was ultimately rejected by the Supreme Court in Young v. UPS.

Ms. Lipnic replaces Jenny R. Yang, who was named Chair of the U.S. Equal Employment Opportunity Commission by President Barack Obama in September 2014. Ms. Lipnic will also be taking over an agency that saw its longest-serving general counsel, P. David Lopez, step down this past December. Under both Ms. Yang and Mr. Lopez, the EEOC aggressively moved towards protecting gay rights and the agency secured the largest damages award in the EEOC’s history. Such damages arose out of large-scale discrimination against individuals with intellectual disabilities, religious discrimination claims.

Commissioner Lipnic will most certainly steer the EEOC away from the aggressive, employee-friendly initiatives taken by her predecessors. However, unlike other Trump appointees, she is not someone who can be considered “hostile” towards the purpose of the agency she will be responsible for managing or lacking expertise.

For more information about federal and Michigan employment laws, including EEOC claims, continue to read our Employment Law Blog. You can also follow on Twitter its contributing writer employment attorney Jason Shinn.

What the Trump Transition Teaches About Social Media Legal Issues Facing Companies

Social Media and Employment LawCompanies focus on maximizing social media strategies to promote the business. This week’s transition between the Obama and Trump administration highlighted numerous social media issues that employers need to pay close attention to concerning business and employee social media issues.

Social Media Use – Two Presidential Approaches

President Barack Obama was the first President to use the @POTUS Twitter account. He also set aside using his personal Twitter account in favor of using the @POTUS account. In other words, President Obama made a clear distinction for promoting the administration’s message as compared to his personal messages.

In contrast, Mr. Trump stated he would continue to use his personal Twitter account and delegate the responsibility of the @POTUS account to his White House staff (for more information on this transition, click here) (here is a great resource for reviewing Mr. Trump’s statements, including his Twitter posts).

Social Media Recommendations for Employers

Similar to the issues playing out on the Presidential transition stage, businesses must consider how their business and employee social media accounts and promotion should be handled. Here are just a few points to consider:

  • Social Media Ownership: If the responsibility for managing a social media account is delegated to an employee other than the business owner, document this responsibility. The social media policy should specifically identify the names of the responsible employees as the only employees authorized to post on behalf of the company-owned social media platform.
  • Social Media Guidelines: Since company-owned social media accounts are a direct reflection of the company, it is pertinent that each business provides its delegated employees with a list of employer expectations to guide their use of the platform. Topics for consideration include addressing the role the social media site will play for the business, how frequently posts should be made, areas or topics that are “off limits” or require approval, desired content of the posts, and acceptability of sharing/retweeting posts. Also, a separate focus should be on non-company social media guidance. Employee use of social media may interfere with your company’s mission or business interests or the interest of your customers.
  • Employee Social Media Use: Just as posts made by an employee on the company-owned social media account reflect the company, some people may believe that business posts made by employees on their personal accounts reflect the company as well. Consider for example a recent Tweet from (then) President-Elect Trump advertising for L.L. Bean. Trump Ethics TweetThe Washington Post (by Danielle Paquette) reported this Tweet broke long-standing policies against the President from endorsing products and was largely frowned upon by ethics experts. The concern being using the power of the Nation’s highest office to advertise. Similarly, you may not want your company to be associated with a cause or group based on an employee’s social media post. So be specific when addressing your company’s social media expectations on posting business related content on a personal page.
  • Social Media and Noncompete Agreements. Parties may enter into noncompete agreements, which designate certain information is defined to be confidential or trade secret. But such agreements are not dispositive, especially with the proliferation of information available through social media tools such as LinkedIn and Twitter, which have further complicated the status of information as confidential or constituting an employer’s trade secrets.
  • Transitions and Exit Interviews: A business should have a social media transition. Whether an employee leaves the company or takes another position within your company, a game-plan should be in place for transferring social media responsibility. Minimally speaking, this should include addressing the turnover of all access credentials to any company owned/sponsored social media accounts. You’ll also want to update the social media passwords each time responsibility is transferred to a new employee.

Social media has become an inextricable component of the HR and employment law landscape. And as the presidential transition makes evident, having clear social media standards and regulations is critical for efficient use and transition.

For additional information on how best to manage your company’s social media accounts, contact attorney Jason Shinn. Mr. Shinn routinely works with companies and HR professionals to address employment law issues at the intersection of technology and the workplace, including social media law best practices.

Overtime Rules Halted Before December 1 Deadline

TRO, preliminary injunction, temporary restraining orderA Texas federal judge has stopped the U.S. Department of Labor’s new overtime rules from taking effect as scheduled for December 1, 2016. Significantly, the court issued a nationwide injunction. The decision to enjoin the Department’s overtime rules was issued earlier today, and a copy of the Order is available here (Nevada v U.S. Department of Labor – Injunction Order).

The district court judge concluded that the applicable statute (29 U.S.C. § 213(a)(1)) does not grant the Department the authority to use a salary-level test or an automatic updating mechanism under its revised overtime rule.

The Revised Overtime Regulations

The revised rules were scheduled to become effective December 1, 2016. It would have increased the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $921 per week ($47,892 annually). This means that workers who earn an annual salary of less than $47,476.00 would automatically be eligible for overtime pay. The Department’s revised overtime rule also establishes an automatic updating mechanism that adjusts the minimum salary level every three years. The first automatic increase will occur on January 1, 2020.

Background of the Federal Litigation

As we previously noted, in September 2016 two lawsuits were filed in the Texas court challenging the Department’s authority to revise the overtime rules. The revisions would have more than doubled the exempt salary threshold to $47,476 and other changes. Twenty-one states filed one lawsuit, including Michigan. The other was filed by the U.S. Chamber of Commerce and similar business groups.

The cases were later consolidated in October, and the combined plaintiffs moved to issue a preliminary injunction that would halt the new regulations on an expedited basis, which was heard on November 16.

The Order Enjoining the Overtime Regulations

The plaintiffs sought a preliminary injunction to enjoin the Department from implementing its revised rule on December 1, 2016. In granting the injunction, the district court judge issued a lengthy opinion. But the key determinations for employers and employees are:

  1. The Department’s revised rule exceeded its delegated authority to interpret the type of employees exempt from overtime and the considerations to evaluate such employees.
  2. The Department lacked the authority to implement the automatic updating mechanism.
  3. The district court issued a nationwide injunction – not just for the states that sued.

In reaching these conclusions, the court reasoned:

Directly in conflict with Congress’s intent, the Final Rule states that ‘[w]hite collar employees subject to the salary level test earning less than $913 per week will not qualify for the [] exemption, and therefore will be eligible for overtime, irrespective of their job duties and responsibilities.’ With the Final Rule, the Department exceeds its delegated authority and ignores Congress’s intent by raising the minimum salary level such that it supplants the duties test.

In other words, Congress defined the exemption regarding duties, which includes no minimum salary level.

What Does This Mean

The Department estimated 4.2 million workers are ineligible for overtime but would have automatically become eligible under its revised overtime rule with no change to their duties. The Department estimated that the new rule would have boosted wages by $12 billion over the next 10 years.

But this is now all in jeopardy. This is because the injunction gives time for the Trump administration to direct the Department to withdraw the rule altogether. While withdrawing the rule would require time for notice and comment, which takes many months, the injunction may set the stage for this to now happen. And even if the Trump administration did nothing, the court’s opinion would not bode well for the Department in regard to ultimately prevailing in the suit.

Another interesting question is what businesses will do who already revamped their payroll and workforce in anticipation of the rule going into effect on December 1, 2016. Even with the unexpected Trump victory, many businesses continued to prepare for the revised rule. Such preparation included raising workers’ salaries above the new threshold to avoid overtime requirements. Do those companies now go back to their old compensation plans?  That would do wonders for employee retention.

Contact employment attorney Jason Shinn for more information about federal overtime laws and this significant overtime ruling. We will continue to monitor this decision and assess what it means for businesses and employees.

Pitfalls in Contracting with Employee Staffing Companies

Business PitfallsBusiness owners are increasingly considering the use of outside vendors to meet workforce needs. This is especially true for temporary employees or flexible staffing solutions. But companies must carefully review any contractual terms apply to such workforce situations.

Employee Leasing Companies

We recently represented a company involved in a lawsuit against a staffing company called True Blue Inc. True Blue, through its subsidiary Labor Ready, solicited our client’s business to supply temporary employees. A benefit stressed by True Blue/Labor Ready’s local office was their expertise in screening and background investigation of individuals.

After a contract was entered reflecting these negotiations, True Blue provided leased several individuals for temporary staffing. That contract included a provision for criminal background and drug testing checks and something True Blue/Labor Ready described as a 20-point pre-employment screening.

Despite these screening programs, two employees leased to our client were involved in two separate criminal thefts. In one instance video surveillance recorded the True Blue/Labor Ready employee stealing a laptop. During the police investigation, it was discovered that the individuals’ backgrounds had been misrepresented with respect to criminal history and identity; one applicant presented false employment documentation for employment verification purposes, i.e., identity theft that True Blue failed to discover.

True Blue was immediately advised of these issues initially by my client’s president and general manager and then through legal counsel. But True Blue’s response included ignoring the situation, denying it had any obligation to conduct pre-employment screening or background checks, or blaming its client for improperly supervising the employees. True Blue/Labor Ready, however, did find time to continue to bill the client for the subject employees.

After no resolution could be reached, True Blue and its Labor Ready subsidiaries were sued in Oakland County Circuit Court. Incredibly, True Blue/Labor Ready counterclaimed for contractual indemnification. The story that True Blue/Labor Ready manufactured for their counterclaim was that after the parties entered the contract, a document captioned “work ticket” was provided contemporaneously or after the leased employees worked for the plaintiff. This, work ticket, the story goes, included an indemnification provision that insulated True Blue from its negligence, wrongdoing, or other liability arising out of leasing its employees.

This lawsuit was eventually submitted to mediation, where it eventually settled with the plaintiff receiving a cash payment.

Considerations for Using Temporary Staffing Companies

Temporary staffing agencies and more permanent employee leasing firms are increasingly being considered to augment existing staff. But the above example illustrates a few pitfalls that may arise in such relationships. Here are a few takeaways if your business is considering using a temporary staffing company:

  1. Carefully review the contract to make certain it reflects the parties’ agreement. Importantly, the contract should expressly address what is important for your business to be successful. Also, carefully consider how any subsequent terms or conditions buried in a “work ticket” or any other documentation may affect or alter the initial contract. On this point, be especially critical of any indemnification provision that may be found in the “fine print.” If the terms are inconsistent with a prior contract or are unacceptable, immediately document the problem and rejection of those terms.
  2. Employers must comply with a patchwork of laws and regulations concerning prescreening and background checks (See Addressing Legal Issues in the Hiring Process and Your Job Search). And any background investigation of job applicants will have limitations. In that regard, Defendants in the above-referenced lawsuit produced (just days before the mediation) documents showing that some measure of prescreening did take place. Defendants did not discover the identity theft situation and none of the prescreening results were shared with our client.
  3. Consider conducting due diligence about the business and litigation history of a staffing company or other vendor. At the mediation, True Blue’s assistant in-house counsel in addressing the enforceability of the indemnification provision referenced his company’s success at enforcing it in various courts throughout the country. That piece of information sheds potential light on the business practices and how issues are resolved.

For more information about using outside employee staffing companies, and complying with federal and Michigan employment laws, contact attorney Jason Shinn. Mr. Shinn frequently works with companies to address employment law issues involving leased employees and temporary staffing with an eye towards eliminating or minimizing legal risks.

Labor Department Seeks Information From Employers and Employees About FMLA

Survey and opinionOn October 28, 2016, the Department of Labor (DOL) gave notice that it is seeking comments from employers and employees about the Family and Medical Leave Act (FMLA). The notice is available here Federal Register.

The comments will be used to develop and administer two surveys in 2017 and 2018. According to the DOL, these survey results will be used as follows:

… to collect information about the need for and the experience with family and medical leave from employees’ and employers’ respective perspectives. This effort will build on previous information collection efforts, as the new surveys will update and expand on the evidence about FMLA use and leave.

In this regard, the employer survey will focus on employees’ use of leave and employers’ experience managing the FMLA. And the employee survey will address their use of and need for leave and their experiences with FMLA-eligible leave. Comments must be provided to the DOL by Dec. 27, either by email or mail:

Email: ChiefEvaluationOffice@dol.gov; Mail or Courier: Christina Yancey, Chief Evaluation Office, OASP, U.S. Department of Labor, Room S–2312, 200 Constitution Avenue NW., Washington, DC 20210.

For more information about the FMLA or other federal and Michigan employment law, contact attorney Jason Shinn.

Politics and the Workplace – A Legal and Practical Nightmare for Companies

A recent press conference by Donald Trump offers an example of why employers need to be careful about discussing or promoting politics in the workplace.

Specifically, on October 25, 2016, Donald Trump was giving a press conference at his Doral National Golf Club in Florida (to be honest, I’m not sure if he was promoting his presidency or the club). The backdrop for this event consisted of club employees standing behind Mr. Trump. The point he was trying to make was that he is a jobs creator and will do the same as President.

At one point during the event, Mr. Trump – in what he described as and unrehearsed move – asked his employees to step forward to talk about working for him (about the 2:30-minute mark), “Anybody would like to say a few words about working for Trump? Come on up.”

After several requests, an employee finally came forward. In response, Mr. Trump said, “Better say good, or I’ll say you’re fired.” While Mr. Trump’s “you’re fired” schtick worked well for him on his reality TV show, it is problematic when used in the context of politics and employment.

Political Coercion of Workers

Consider for example that under Michigan law, Mr. Trump’s statement could give rise to a misdemeanor. Under MCL 168.931, a person cannot “either directly or indirectly, discharge or threaten to discharge an employee of the person for the purpose of influencing the employee’s vote at an election.” While not in the employment context, it is worth noting that this statute has been applied to convict a defendant who paid $5 to get people to vote in a recall election. People v. Pinkney (Mich. Ct. App. July 14, 2009).

Further, employers may come under the scrutiny of the Federal Election Commission if political proselytizing becomes employee coercion with respect to political activity and campaign contributions. In this regard, a complaint was filed against a coal company for the actions of its executive concerning violations of the Federal Election Campaign Act of 1971. That complaint alleged as follows:

Robert Murray personally threatened employees by letter and in company meetings with termination if the employees failed to contribute to the company’s political action committee. Murray Energy employees have stated that they felt under constant pressure to make contributions and that their jobs were at stake if they did not make the contributions Robert Murray expected them to.

And even if not a criminal violation, interjecting politics into the workplace often creates conflict among co-workers. Consider the Wall Street Journal, by Rachel Feintzeig and John Simons, recently reported on the rise of workplace problems involving political polarization:

There was no mincing words. ‘You either let her go, or I go,’ a senior executive at FrescoData told the company’s human-resources manager earlier this month. The executive supports Republican Donald Trump for president. The co-worker he says he can no longer work with has made no secret of her plan to vote for Democrat Hillary Clinton.

* * *

The divisiveness of this year’s presidential campaign has seeped into American workplaces, raising tensions among co-workers and forcing bosses to mediate disputes.

Hopefully, as we move farther away from November 8, the distraction created by this year’s politics will subside. Until then, there is a reason politics is considered one of three workplace taboos that shouldn’t be discussed. But if politics are going to be discussed, a great attorney and better friend, Ellisen Turner, put it this way, “I have many friends, with at least as many views. I enjoy knowing you because of our differences, not despite them.” A great piece of advice for anyone.

For more information about complying with federal or Michigan employment laws, as well as investigating employee misconduct, contact employment attorney Jason Shinn.

Addressing Legal Issues in the Hiring Process and Your Job Search

Hiring and Legal Compliance According to the US Labor Department, employers added 156,000 jobs last month. Additionally, the participation rate increased to 62.9%. And the average hourly earnings moved 0.2 percentage points. These figures indicate a steadily increasing U.S. economy. But the Labor Department also found that the unemployment rate last month increased from 4.9% to 5%.

A rising unemployment rate means more eligible workers are seeking employment. With increased hiring, there are a few important things that both employers and employees need to take into consideration when it comes to seeking new employment.

State and Federal Laws Affect the Hiring Process

Companies, especially those without a dedicated HR staff, need to have a working knowledge of state and federal employment laws. While there are too many of these regulations to be discussed here, a few critical areas employers need to be concerned about when it comes to new hires include physical examinations,  background checks, and non-compete restrictions.

  • Physical Examinations

The Americans with Disabilities Act (ADA) and similar states’ laws, restricts when employers can conduct medical related physical examinations. An employer cannot request or require a medical examination before a prospective employee is given a conditional job offer. Employers can inquire about one’s ability to perform specific job functions before offering the job, but not about a disability. Or as the EEOC puts it:

It [the employer] cannot make any pre-employment inquiry about a disability or the nature or severity of a disability. An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how s/he would perform these functions.

The EEOC provides a number of responses to commonly asked questions about complying with the ADA. Those responses are available here.

  • Background Checks

Employers are allowed to conduct background checks on prospective employees, but they are still legally required to follow applicable laws about discrimination throughout the hiring process. One limitation is that employers cannot use information within a background check to discriminate against a potential employee based on age, race, genetic information, age, etc.

It is also prudent to make sure that your company’s background checks are consistently applied. On this point, the EEOC warns that, “[i]t’s illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older).” For additional information on the ADA’s restrictions on background checks, click here.

  • Non-compete Obligations

Another important consideration for both employers and employees to consider are non-compete obligations. Consider the following:

  1. Employees Seeking New Employment – Be sure to determine what, if any, non-compete restrictions you may have entered into. We often represent individuals who are threatened with litigation for breaching a non-compete agreement that they signed five, six, or even ten years ago but honestly forgot about entering into the post-employment restriction. Even so, it is important to carefully consider any non-compete restrictions before quitting your current position. Additionally, if you are switching jobs, it’s critical that you return all employer owned documentation, emails, etc. Never download or forward any company information to a personal account because, that too, could lead you to legal trouble during you job transition.
  2. Employers and New Hires – For employers, it is important to screen prospective hires for any post-employment obligations. If a potential employee has a non-compete obligation, it may interfere or restrict the candidate’s ability to perform in his or her new position. This issue should be discussed and documented in the hiring process before making an offer.

There are many other restrictions and guidelines for the hiring process, but these are a few important ones to keep in mind. For more information about complying with federal or Michigan employment laws, contact Michigan employment attorney Jason Shinn. Since 2001, he has represented businesses and individuals in non-compete disputes and claims arising under federal and Michigan employment laws.

Detroit Casino Sued for Violating Americans with Disabilities Act

Employers must have well written employee manualsDetroit’s Greektown casino was sued on October 3, 2016, by the U.S. Equal Employment Opportunity Commission (EEOC) for allegedly violating the Americans with Disabilities Act (ADA) by denying a reasonable accommodation to and then firing an employee because of his disability.

The former employee, Michael Lepine, was a pit manager for Greektown Casino. The lawsuit alleges that in February 2012 Lepine collapsed at work and was hospitalized for his stress/anxiety disorder. Lepine had previously exhausted his Family And Medical Leave Act (FMLA) time due to a previous stress-anxiety related leave in 2011.

He then requested additional medical leave to return to work and submitted leave paperwork, including a doctor’s note, indicating that he would need leave through April 30, 2012. Greektown allegedly responded by requiring Lepine to return to work without restriction by April 2, 2012, or request nonmedical leave. When this did not happen, Greektown terminated Lepine’s employment on April 3, 2012.

A copy of the complaint is available here (EEOC v Greektown Casino (10-3-2016). According to an EEOC statement, it was filed a voluntary pre-litigation settlement through its conciliation process failed to resolve the claim. The EEOC’s seeks to recover monetary compensation for the former employee in the form of back pay and compensatory damages for emotional distress, as well as punitive damages.

This case is very early in the litigation phase. However, there a few points employers should note and understand.

Leave Obligations under FMLA and ADA

First, employers are often faced with overlapping and sometimes conflicting obligations when it comes to the FMLA and ADA. The FMLA offers benefits to employees with certain medical conditions. And those health conditions may entitle the individual to protection under the ADA.

Second, the threshold coverage for the ADA and FMLA are significantly different. For starters, the ADA is broader in its coverage and that it applies to any company that is “engaged in an industry affecting commerce” and that employs 15 or more employees for each working day in each of 20 or more calendar weeks in the current or previous calendar year.”

In contrast, the number of employees necessary for an employer to be covered by the FMLA is 50 or more employees within a 75-mile radius. The FMLA also imposes employment tenure, hours worked, and other requirements for employees to be eligible for leave. Thus, while the FMLA threshold requirements are more restrictive, the potential for overlapping application of the ADA and the FMLA routinely exists.

Third, the core purpose of the FMLA is to provide qualified employees with leave – a maximum of 12 weeks of leave in a 12-month period. However, the ADA does not expressly provide for leave. But many courts have held that a reasonable accommodation may involve a part-time schedule in a current position or intermittent leave.

Further, EEOC Policy Guidance on this subject provides that an employer may not apply a policy of automatically terminating employees “after they have been on leave … to an employee with a disability who needs leave beyond” a standardized period. In other words, the EEOC’s position is that an employee who exhausts his or her entitlement to 12 weeks of leave under the FMLA may still be entitled to some additional period of leave as a reasonable accommodation if that person meets the ADA’s definition of “disability.”

For more information about complying with the FMLA, ADA, or other federal and Michigan employment law statutes, contact Michigan attorney Jason Shinn. Mr. Shinn routinely works with employers with respect to understanding their obligations under these statutes. Also, since 2001, he has litigated these issues in federal and Michigan courts.