Steven H. Schwartz & Associates, P.L.C.

Amendments to the FMLA
SUPREME COURT CLARIFIES STATUTE OF LIMITATIONS IN PAY DISCRIMINATION CLAIMS
Six Things to Look for In Your Next Employment Contract
Michigan Codifies Garrity Rights for Law Enforcement Officers
Clarification of Garg and Evidence of Discrimination Occurring Outside the Statute of Limitations
Sixth Circuit Encourages En Banc Review of Arbitration Timeliness Disputes
Prescription Contraceptives
Michigan Minimum Wage Law
Covenants Not to Compete
Supreme Court Ruling Modifies Freedom of Speech in Public Sector Employment

Amendments to the FMLA

Schipper | 28 April, 2008 15:04

The President has recently signed the National Defense Authorization Act (Fiscal year 2008) which includes provisions amending the Family and Medical Leave Act to provide (1) up to six months of leave for family members caring for military veterans injured while on active duty in the Armed Forces and (2) 12 weeks of leave to family members of armed services personnel called up to active duty under certain circumstances.

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SUPREME COURT CLARIFIES STATUTE OF LIMITATIONS IN PAY DISCRIMINATION CLAIMS

Schipper | 08 June, 2007 15:54

In its May 29, 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court ruled that pay discrimination claims are not actionable when the discriminatory pay decision occurred before the 180 day (or 300 days in states with deferral agencies) statutory charge-filing period, despite the effects of such decision still being prevalent within the statutory time frame. (More)

Six Things to Look for In Your Next Employment Contract

Schipper | 25 May, 2007 14:05

Employees often view the terms of their employment only in dollars and cents. While getting the highest compensation for what you bring to the table in knowledge, skills and ability is important, often the terms of the employment agreement may add to the value of an offer or, conversely, make it less appealing or even hazardous to your career. This article will explain some of the common aspects of employment agreements and hopefully dispel some common myths employees have in regard to the terms of their employment.

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Michigan Codifies Garrity Rights for Law Enforcement Officers

Schipper | 15 March, 2007 14:54

On December 29, 2006, Michigan enacted M.C.L. 15.391, codifying the protection of involuntary statements made by law enforcement officers. Such protection has been in place since the Supreme Court's ruling in Garrity v. State of N.J., 385 U.S. 493 (1967). In Garrity, the Court ruled that public sector employees are in fact under duress and deprived of free choice when asked to either incriminate themselves or forfeit their jobs. Therefore, the use of such statements is prohibited in a subsequent criminal proceeding as involuntary self-incrimination.

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Clarification of Garg and Evidence of Discrimination Occurring Outside the Statute of Limitations

Schipper | 15 March, 2007 14:50

Prior to the 2005 decision of Garg v Macomb County Cmty Mental Health Servs, Michigan subscribed to the continuing violations theory of discriminatory acts. 472 Mich 263 (2005). This meant that aggrieved employees could file a claim for discriminatory or retaliatory acts that occurred beyond the three-year statute of limitations by showing them to be related to acts that occurred within the statute of limitations, so as to create a pattern of harassment. The Court in Garg ruled that continuing violations theory no longer exists under Michigan law but left open whether acts falling outside the statute of limitations may be used as background in support of claims made within the statute of limitations. (More)

Sixth Circuit Encourages En Banc Review of Arbitration Timeliness Disputes

Schipper | 11 December, 2006 10:58

It has been a long-standing judicial precedent that the courts' jurisdiction in determining the arbitrability of arbitration agreements in a collective bargaining agreement is limited to determining whether the dispute is on its face governed by the contract. In other words, courts, not arbitrators, determine if the dispute is to be settled through arbitration. Arbitrators are to make the determination of procedural arbitrability (e.g. whether the parties have complied with procedural requirements under the agreement). (More)

Prescription Contraceptives

Schipper | 01 November, 2006 12:11

The Michigan Civil Rights Commission recently issued a ruling that declares an employer may not exclude prescription contraceptive drugs from a health plan that covers other prescription drugs. The MCRC deems the selective exclusion of prescription contraceptives to be gender discrimination and to disproportionately affect women. It should be noted that the MCRC's rulings are not law, however, courts may rely on such rulings as persuasive in their determination of discrimination. The federal Equal Employment Opportunity Commission issued a similar ruling in the past, and some federal district courts did rely heavily on the EEOC's ruling in their opinions, which found that employers that exclude prescription contraceptives from their otherwise comprehensive drug plan discriminate on the basis of gender.

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Michigan Minimum Wage Law

Schipper | 01 November, 2006 12:06

The Michigan minimum hourly wage is to increase to $6.95 on October 1, 2006, to $7.15 beginning July 1, 2007, and to $7.40 beginning July 1, 2008. Because of interplay between the Federal Fair Labor Standards Act ("FLSA") and Michigan Wage & Hour Law, practitioners generally agreed that several classes of previously exempt status employees would be considered non-exempt, eligible for overtime, employees because of the minimum hourly wage amendments to the Michigan law.

However, recent legislation mostly avoids this outcome. The Governor has signed legislation that largely maintains the classes of exempt and non-exempt employees as they applied before the minimum wage increases; except for some classes of home health care providers, childcare providers, and agricultural workers.

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Covenants Not to Compete

Schipper | 04 August, 2006 12:11

Employers frequently require employees to enter into agreements limiting the employee's ability to work for a competitor or to operate a competing business within a certain amount of time after departing the employer's business. Following the Michigan Antitrust Reform Act ("MARA"), Michigan courts enforce non-compete agreements that they find to be reasonable.

The MARA requires reasonableness of the agreement in four respects. The agreement must 1) protect the employer's reasonable competitive business interest, 2) be reasonable in duration, 3) be reasonable in the geographical area in which it restrains competition, and 4) be reasonable as to the type of employment or line of business prohibited.

Generally speaking, a reasonable non-compete agreement will be just restrictive enough to protect an employer's legitimate business interests while allowing the employee to earn a living. However, the application of the above stated factors is very fact intensive. A non-compete agreement that is enforceable under a certain set of facts may very well not be enforceable in another. For this purpose it is recommended that employers not simply use boilerplate language in their non-compete agreements but rather tailor the agreement to the specific needs of the employment relationship. Further, it is advisable to contact an employment attorney to research prior judicial enforcement of agreements in similar employment relationships.

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Supreme Court Ruling Modifies Freedom of Speech in Public Sector Employment

Schipper | 04 August, 2006 12:02

On May 30, 2006, the U.S. Supreme Court, by a 5-4 vote, modified free speech in public sector employment by ruling that the First Amendment does not protect speech that is a part of the public employees' job duties.

In this case, Garcetti v. Ceballos, 126 S. Ct. 1951, Ceballos, a deputy district attorney, sent a memo questioning the truth of another department employee's witness statement in support of a search warrant. Ceballos claimed that his employer then retaliated against him because of this speech. The trial court ruled that Ceballos' speech was not a matter of public concern, and thus not protected, as it was made as part of his job duties. The 9^th Circuit Court of Appeals ruled that it was protected speech as it revealed a matter of public concern and did not disturb the daily operations of the employer. (More)

City Manager Exit Agreements

gabrys | 17 April, 2006 16:40

Introduction. City Managers serve in a perilous profession. City Managers are apt to lose their jobs for a number of reasons unrelated to performance or competency: differences in policy or direction, management style, budgeting issues. City Managers may also lose their positions for less rational reasons: jealousy, power plays, retaliation for ordinance enforcement, disagreeing with a strong-willed elected official, scapegoating or other political reasons.

Dos & Don'ts Regarding Sexual Harassment

gabrys | 17 April, 2006 16:38

Sexual harassment remains a prevalent problem in the workplace. Employers need to establish workable policies and train supervisors to respond appropriately to complaints about sexual harassment. Some of the largest jury awards in employment-related litigation result from employers’ failure to establish these policies or respond in a timely, effective way to complaints of sexual harassment.

New Overtime Regulations

gabrys | 17 April, 2006 16:19

Significant changes to federal regulations governing overtime for “white-collar” employees raise risks, opportunities and human resources issues for employers. (More)

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