Tag Archives: Michigan Employment Law Advisor Blog

An Update on the New DOL Overtime Rule.

21 Wednesday Sep 2016

Posted by in Employment Law, Exempt Employees, Law Office Management, Lawyer Supervision, Non-Exempt Employees, Paralegals/Legal Assistants

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Michigan Joins Quest to Block New Overtime Rule, by Jason Shinn, Michigan Employment Law Advisor Blog

http://bit.ly/2d5Bpto

The new overtime rule proposed by the Department of Labor is definitely one to watch. Its impact on employee and employer alike is significant.

How will it impact paralegals? As a profession, we began as exempt professionals, and not eligible for overtime. The Department of Labor eventually determined that paralegals were non-exempt because we work under the direct supervision of lawyers, and do not make independent decisions. Personally, I prefer being considered as an exempt professional, but not all paralegals share my opinion.

 A more detailed explanation of the history of the Department of Labor and the paralegal professional can be found here: https://www.paralegals.org/i4a/pages/index.cfm?pageid=3304. -CCE

On September 20, 2016, Michigan joined 20 other states in filing a lawsuit against the U.S. Department of Labor (DOL) to block a new overtime rule that goes into effect on December 1, 2016. Here is a link to the complaint Nevada v. Labor Dept., (9/20/16).

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DOL’s Rule Expands Eligibility for Overtime Pay

The DOL’s overtime rule would more than double the salary threshold, up to about $47,500, under which workers are automatically entitled to overtime pay. This rule focuses on shrinking what is referred to as the ‘white collar exemption,’ which exempts employees who perform ‘executive, administrative or professional’ duties from overtime and minimum wage requirements.

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Employer’s Motion for Preliminary Injunction is Denied in Non-Compete Agreement Case.

05 Tuesday Jan 2016

Posted by in Employment Law

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Dissecting an Injunction Hearing for Enforcing a Non-Compete Agreement, by Jason Shinn, Michigan Employment Law Advisor

http://bit.ly/1OJ90Wo

In non-compete lawsuits, whether a preliminary injunction should be issued is a critical battle that in large part determines the direction of the lawsuit. For this reason, a recent decision denying a former employer’s motion for injunctive relief in a non-compete enforcement action provides critical insight for companies and individuals. . . .

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Updated Your Employee Manual And Policies Lately? Maybe You Should.

13 Monday Apr 2015

Posted by in Employee Manuals, Employment Law, National Labor Relations Act

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Employer Charged with Unfair Labor Practice Because Employee Manual and Agreements Were Unlawful, by Jason Shinn of Shinn Legal, PLC, Michigan Employment Law Advisor Blog

http://tinyurl.com/l9pw82d

Two annoyances in life often involve cliches and living out a cliche. This is especially true when the cliche is ‘shooting yourself in the foot.’ But T-Mobile got to experience both last week when the National Labor Relations Board (NLRB) ruled that it engaged in unfair labor policies.

The ruling arose out of T-Mobile’s employee handbook, code of conduct, and a confidentiality form that all employees are required to sign. However, because of the manner in which T-Mobile drafted these documents, the NLRB found they obligated T-Mobile employees to comply with unlawful labor rules. The full NLRB opinion is available here (NLRB_T_Mobile_Opinion_2015_3_18).

We previously explained that employers need to be mindful that the NLRB would be focusing on employee manuals, sometimes called employee handbooks, and other employee agreements that violate employee rights under the National Labor Relations Act (NLRA) (an act that applies to union and non-union employees). See Employee Manuals Need Spring Cleaning Thanks to the NLRB. We also expressed our concern that many provisions in employee manuals and agreements could violate the NLRA and, therefore, subject companies to an unfair labor practice charge similar to what T-Mobile got hit with.

A review of the T-Mobile opinion substantiates these concerns in that the offending provisions were construed or otherwise interpreted to prevent workers from communicating with one another about wages, from speaking to the news media about workplace conditions and from speaking with co-workers to marshal evidence against disciplinary charges. Over all, administrative law judge found that 11 of the 13 policies subject to the litigation were illegal. . . .

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Latest Supreme Court Opinion on Pregnancy Discrimination Claims.

28 Saturday Mar 2015

Posted by in Employment Law, Pregnancy Discrimination, United States Supreme Court

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A New Day for Pregnant Employee Workplace Accommodations – Understanding the New Framework, by Jason Shinn, Michigan Employment Law Advisor Blog

http://www.michiganemploymentlawadvisor.com/category/pregnancy-discrimination-act/

Yesterday [March 26, 2015] the U.S. Supreme Court issued the much anticipated opinion in a pregnancy discrimination claim, Young v . United Parcel Service.

For context, the claim in Young v UPS arose under the Pregnancy Discrimination Act (PDA). The PDA was added to Title VII (the gold-standard in terms of civil rights law prohibiting workplace discrimination) to overcome a prior Supreme Court ruling that allowed employers to treat pregnant female workers less favorably based on being pregnant.

There are two anti-discrimination provisions under the PDA: the first prohibits pregnancy bias as a form of discrimination based on sex; the second prohibits employers from treating female employees who become pregnant different than other employees who perform the same sort of work. . . .

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“Employee” or “Independent Contractor” Drilled Through The Hand At Bada Bing Club? Why It Makes A Difference.

25 Saturday Oct 2014

Posted by in Employment Law, Independent Contractors

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Drilling Home the Difference Between an Independent Contractor and Employee, by Jason Shinn, Michigan Employment Law Advisor Blog

http://tinyurl.com/qypgowu

A common question that business owners raise involves the use of employees versus independent contractors. The use and classification of an individual as an employee or independent contractor is one of the more complicated employment law issues that business owners will deal with and resolving such issues will depend upon circumstances.

Consider one test, the economic reality test, is used for determining employment status when it comes to social legislation such as worker’s disability compensation. However, another test, the ‘control test,’ is used when it comes to tort actions. And both of these tests have multi-faceted factors that need to be considered under the specific circumstances).

But a recent Michigan Court of Appeals decision (Cole v. The Bada Bing Club, 2014) involving an employee/independent contractor issue drills home the point (quite literally) one of the significant differences between the two statuses and why it matters to employers.

The Beating at the Bada Bing Club

Specifically, Dennis Cole was severely beaten in the basement of the Bada Bing Club by the club’s manager, Henry Ramirez and three other individuals. The following is taken directly from the Court of Appeals opinion:

‘Plaintiff was taped to a chair, beaten with a gun, punched and kicked, and drilled through the hand with an electric drill. The men were all convicted of criminal charges for their involvement.’

Plaintiff sued the Bada Bing Club and Atlantis Lounge Inc. Atlantis Lounge was the sole Owner of the Bada Bing Club, which was an assumed name filed by Atlantis. Atlantis Lounge, however, verbally contracted with Henry Ramirez (the guy involved in beating Plaintiff) who solely managed and operated the Bada Bing Club.

Lawsuit Turns on Employee or Independent Contractor Status

A central issue on appeal was whether Ramirez was an employee or an independent contractor. If Ramirez was an employee of Atlantis Lounge, then Atlantis could be held directly liable for negligently hiring, training, or supervising Ramirez. In contrast, under Michigan law there is no comparable cause of action for the negligent hiring or retention of an independent contractor. In other words, if Ramirez was an independent contractor then Atlantis Lounge was off the hook. . . .