248-409-1900 dburke@mi-worklaw.com

By:  Dan Cohen – 12/31/14

Before we ring in the New Year and start thinking of all the promise 2015 holds in store for us, I thought I would look back and recap 2014 and what it meant to employers here in Michigan. Not unlike most of the Obama Presidency, 2014 saw a significant erosion of employer rights and the adoption of new rules and regulations that employers must know and abide by. Much of the erosion was at the hands of the Obama NLRB, which operated throughout 2014 as a full, five member democratic majority Board. Certainly, it can be said that most of the developments chronicled below create more work for employers, require the adoption of new policies and increase the cost of doing business. So, let’s look back at the top newsmakers from 2014:

  • On January 30, 2014, the NLRB issued its decision in William Beaumont Hospital finding an employer’s directive to an employee not to discuss its on-going investigation a violation of the NLRA.
  • The NLRB issued its decision in MCP, Inc. on February 6, 2014 finding an employer’s confidentiality rule overly broad in violation of §7 of the Act.
  • On February 12, 2014, President Obama signed Executive Order 13658 raising the minimum wage for federal contractors and subcontractors to $10.10 (a $2.85 increase), effective January 15, 2015.
  • No recap would be complete without mentioning that the inaugural posting on “The Emplawyer’s Blawg” took place on February 18, 2014.
  • The Sixth Circuit Court of Appeals confirmed an employer’s absolute right to rely upon the restrictions placed upon the plaintiff by her own doctor at the time in Horn v. Knight Facilities Management, No. 12-2688 (February 25, 2014).       While this was no landmark decision, it makes the year in review because it was my case.
  • The final rules of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (“VEVRAA”) went into effect on March 24, 2014 creating additional Affirmative Action obligations for federal contractors and subcontractors. The NLRB issued its decision in Hills and Dales General Hospital, 360 NLRB No. 70 (April 1, 2014) striking “negativity” and “positive and professional” policies as overly broad in violation of §7 of the NLRA.
  • On April 22, 2014, in EEOC v Ford Motor Co., Case No. 12-2484, the Sixth Circuit accepted the EEOC’s argument that teleconferencing technologies are now commonplace and thus working from home may often be a reasonable accommodation.
  • The NLRB issued its decision in Professional Electric Contractors on June 4, 2014 striking a policy which banned “boisterous” activity as overly broad in violation of §7 of the Act because it discouraged lively debate about wages, hours and working conditions.
  • The EEOC released new guidance on Pregnancy Discrimination on July 14, 2014.
  • On August 4, 2014, the U.S. Department of Labor announced that LinkedIn agreed to settle a case, paying approximately $6 Million in unpaid overtime wages to hundreds of employees. The DOL charged LinkedIn with failing to record, account and pay for hours worked in a workweek as required by the Fair Labor Standards Act (FLSA).
  • Michigan’s minimum wage increased to $8.15 on September 1, 2014
  • On September 2, 2014, Administrative Law Judge Julia Stern of the Michigan Employment Relations Commission (“MERC”) struck down the MEA’s August Window resignation provision. The provision, set forth in the MEA By-laws, limited the time union members could resign their membership from the MEA to the month of August.
  • On October 23, 2014, the Michigan Court of Appeals, in Braska v. Challenge Manufacturing Co., ruled that Michigan’s Medical Marijuana Act preempts the misconduct provision of the Michigan Employment Security Act, which until now had disqualified employees from receiving unemployment benefits where they were terminated for failing a drug test.
  • On December 11, 2014, the NLRB issued its decision in Purple Communications, Inc., striking an employer’s policy prohibiting employees from using the employer’s email system during non-working times.
  • On December 12, 2014, the NLRB issued its final rule on “quickie” elections. The final rule is to take effect on April 14, 2015.
  • On December 18, 2014, the Michigan Court of Appeals decided another one of my cases, Doe v. Henry Ford Health Systems, favorably for my client. The case involved a data breach resulting in no harm or injury to a class of individuals. The Court of Appeals reversed the lower court and ruled that invasion of privacy was an intentional tort which could not be supported by negligence and that a plaintiff could not support a claim by relying on the prospect that some harm might occur in the future.

So, there you have it. Let’s not dwell on it. Let’s learn from it. And, now let’s look forward to 2015. Happy New Year!