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

The Other Side of the Detroit Water Story

By:  Dan Cohen – 7/29/14

          It seems like the local story about the “inequity” of shutting off water to residents who have not paid their water bill simply won’t die. Of course, the real inequity is that many people have not made even the slightest effort to pay their water bill for extended periods of time while the rest of us Metro Detroiters have seen our water bills skyrocket in recent years. I’ve often wondered why the water bill always seems to go up even when I haven’t watered the lawn much, as has been the case this summer Is the answer that water is a precious commodity which has become more expensive because of low lake levels? This might have be one of the reasons, until this year when rainfall has replenished the lakes. But, I suspect another reason is that nearly a hundred million dollars has not been collected from Detroit residents. Yes, residents of 45 other communities have been subsidizing the water usage of Detroiters. Approximately half of the 170,000 residential water accounts in the city are behind by at least 90 days and at least $150. Some residents can’t but many simply don’t want to pay their water bill.

          Paying your water bill should be more important than paying your cable bill or your cell phone bill. If you don’t pay those bills, you lose the service. Granted, the consequences of a water shut off is much more serious than having your cable or cell phone turned off, so this is really about making choices. If water is a necessity, and it is, then it should be one of the top priority expenditures, along with food and shelter. Emergency Financial Manager Kevyn Orr has generally defended the shutoffs, saying payment arrangements can be made. The water department says that 17,000 residents have been put on payment plans. Orr has also said many customers have since paid up and have had services restored. In all, some 15,000 residents have had their water shut off.

          Of course, some of those who have lost their water probably cannot afford to pay for it. I think there should be a program for these people, whether they reside in Detroit or elsewhere. But, they fall into a completely different category then those who have simply taken their water consumption for granted and failed to prioritize their bills. Those who can demonstrate they must make a choice between putting food on the table and paying their overdue water bill should be treated better than those who simply elect to keep their premium cable channels while not paying their water bill.

          When I go on line and look at what people are writing about this, almost every post cries foul. Some say it is racism, the work of conservatives and Republicans. I doubt that this decision has been made along racial lines. Rather, the decision to require users to pay for water is likely the result of recognizing that the “old” way of doing business landed Detroit in bankruptcy and the recognition that somebody has to pay for the water being used within the city limits.

          Some note that businesses have not paid their water bills but have not had their water shut off. Only this last argument resonates with me. If businesses have not paid their water bill, then they too should be required to pay up or make payment arrangements. The point is to collect money owed to the City. This is not a novel concept. I say good for the City of Detroit. It is about time something is done to address this problem. Detroit is not the first and won’t be the last municipality to ask residents to pay their bills.

Do Michigan’s Crumbling Roads Tell Us That We Have Too Much Government?

Do Michigan’s Crumbling Roads Tell Us That We Have Too Much Government?

By:  Bill Pilchak – 7/24/14

           Depending on which source one consults, Michigan’s taxes on gasoline, and hence Michigan’s gasoline prices, are the fifth or sixth highest in the nation. This point was brought home after a trip to Toledo to visit two recently-retired Michiganian couples, who relocated to take advantage of lower costs of living. In Ohio gas was selling for $3.43 a gallon, just hours after I filled up with $3.87 petrol in Michigan. Only California, New York, Connecticut, and Hawaii (and sometimes Pennsylvania) assess more than Michigan in gasoline taxes. Despite some of the highest taxes in the nation (60.3¢ per gal.), Lansing is telling us we need to assess $120 million more in taxes per year for the next ten years to maintain our roads.   That’s a 12.4% increase over our current $967M in state gas tax revenue – about 2¢ more per gallon.

          How can we assess more tax per gallon than forty-five states and still have terrible roads?

          One reason is that only 19¢ of Michigan’s 60.3¢ per gallon tax stays in Michigan to fix roads, while 28¢ of Ohio’s 46.4¢ per gallon tax goes to road repair in that state. Here’s the breakdown:

 

Price/Tax Michigan Ohio
Federal Fuel Tax (funds Federal Highway Trust Fund, redistributed to states for highway and public transportation projects.) .184 .184
State Gasoline Tax (devoted to road building and repair) .19 .28
Sales Tax (upon the federal Fuel Tax + price of gasoline) (on hypothetical price of $3.41/gal.) .22 0
Michigan underground storage tank financial assurance (MUSTFA) fee. .00875 0
Total .603 .464

           That 7¢ per gallon difference in state gasoline tax means Ohio dedicates 36% more of its State Gasoline Tax revenue to roads than Michigan.

           Michigan is one of only approximately eight states that imposes sales tax upon gasoline. Worse, for some reason, the sales tax is also imposed on the amount the consumer pays in federal gasoline taxes.   Sales taxes are used for schools, the general fund and revenue sharing. That means 36% of the taxes on gasoline is spent on matters unrelated to roads or transportation.

          Why does Michigan need to tax gasoline for non-transportation purposes?

          Maybe it’s because we have bitten off more government than we need to chew. Our leaders need to realize that their mission is not to grow their operation as if it were IBM, Google or Microsoft. The more they “create,” the more we pay. In the current global economy, we can no longer afford the vicious circle we have subsidized for the past 40 years: Create a state agency to do what the feds do (MIOSHA, for example), assess taxes in Michigan to fund it, increase the cost of doing business to comply with its regulations and greater scrutiny, so that those costs must be passed on as higher prices, which we cannot pay, because we have raised taxes to fund agencies… and so on ad infinitum. It’s time to prune the dead wood from the system. Fund the basics. Don’t duplicate federal agencies. At the state level take care of police, fire, roads and the essentials – only.

Much Ado About Pregnancy Discrimination: New EEOC Guidance

Much Ado About Pregnancy Discrimination: New EEOC Guidance

By: Rhonda Armstrong  7/22/14

           Yes, this is another article about dealing with pregnancy in the workplace! I’ve previously set forth my recommendations on this topic in two prior articles – New Mom’s Back at Work (6/12/14) and The Mother’s Day Edition (5/8/14). Not to overkill the issue, but the EEOC just released new guidance on July 14, 2014, including an Enforcement Guidance, a Fact Sheet, and a related Q & A – all of which can be downloaded from the EEOC website (www.eeoc.gov).

          In short, the new guidance does not differ from what I had previously outlined as employer obligations, and in fact re-emphasizes many points I made, including:

  • ADA Accommodation Implications – In my prior articles, I warned employers to be careful in denying accommodations to pregnant workers because it could give rise to failure to accommodate claims under the Americans with Disabilities Act (ADA). While courts have routinely ruled pregnancy alone is not a disability (which the EEOC does not dispute, even now), courts routinely find pregnancy complications protected by the ADA.   The EEOC stressed that, with the passage of the ADA Amendments Act (making it easier for employees to prove disability and extending to temporary conditions), it will also be much “easier” for pregnant workers to demonstrate ADA protections including relative to conditions which may only be temporary. The EEOC cited the following as examples:
  1. Pregnancy-related anemia;
  2. Pregnancy-related sciatica (back-aches)
  3. Nausea that causes severe dehydration (morning sickness);
  4. Abnormal heath rhythms;
  5. Leg swelling.

           I don’t know about you, but Nos. 2, 3, and 5 seem a normal part of most pregnancies at some point along the way (at least for my two pregnancies). The EEOC provided several examples of what might be appropriate accommodations, including:

o   Redistributing marginal (not essential) job functions or altering how job functions are performed;

o   Modifying policies (e.g., a no water at workstation policy or lifting requirement);

o   Purchasing or modifying equipment or devices (e.g., a providing a stool);

o   Modified work schedules or granting leaves of absence; or

o   Providing a temporary assignment to light duty position.

           With respect to leaves of absences and light-duty assignments, the EEOC cautioned that denying leave or light-duty to pregnant employees with disabilities that are provided for persons with similar ability/inability with other disabilities could be unlawful. So, for example, if you let a person with only one leg (an obvious disability under the ADA) sit at a cash register, failure to let a pregnant employee do the same could be pregnancy discrimination.

  • Breastfeeding Accommodation – In my Mom’s Back at Work article, I cautioned employers about treating breastfeeding employees differently or in refusing to provide necessary break-time. The EEOC’s new guidance confirms this point (“[a]n employee must have the same freedom to address…lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions.”). While the EEOC did not outright require break-time, the implication is certainly that such practices will be closely scrutinized.
  • Non-Pregnancy as Bona Fide Occupational Qualification (BFOQ) – In my prior article, I warned that juries and courts rarely find it lawful to prohibit pregnancy for safety or other reasons. The EEOC confirmed that this stating the BFOQ is an “extremely narrow exception” that employers will “rarely” meet.

          The EEOC provided many examples of what constitutes discriminatory practices in violation of Title VII, the Pregnancy Discrimination Act, or the ADA. Some additional examples beyond those I mentioned in my prior articles include: (1) Penalizing an employee for taking time off for fertility treatments; or (2) Failing to hire a pregnant applicant who could not meet a 50-pound lifting requirement when the lifting requirement is not job-related and consistent with business necessity.

          Lastly, the EEOC provided employers with a laundry-list of “best practices.”  These include practices that most prudent employers should already have in place, such as: having a strong policy prohibiting discrimination, harassment, and retaliation; training managers regarding Title VII, the PDA, FMLA, etc.; reviewing policies to ensure no negative impact on protected groups of employees; investigating complaints and taking prompt corrective measures, as appropriate.

          Some of the suggestions that may be new “take-aways” for employers include:

  • Extending non-discrimination, harassment, and retaliation policies to “pregnancy, childbirth, and related conditions” and “breastfeeding.”
  • Implementing written reasonable accommodation procedures and stating explicitly that they may be available to persons with temporary impairments, including those relating to pregnancy.
  • Training managers to understand their obligations with respect to pregnant employees.
  • Avoid assuming that pregnancy is not a disability under the ADA.

          In closing, the EEOC’s guidance sends a strong message that it will closely scrutinize practices that treat pregnant employees differently or fail to accommodate the impairments associated with pregnancy. If you are in a position that you believe is a close question, it is better to be safe than sorry and give us a call.

SO, YOU WANT TO SUE OUR CLIENT?

SO, YOU WANT TO SUE OUR CLIENT?

By:  Bill Pilchak – 7/17/14

CHAPTER 1

Do You Want A Lawsuit Or A Career?

          We know how excited you are about suing your former employer…because we get a fair share of calls from our friends and relatives or those of clients who want to file employment litigation as well. We know too, that because there are too many attorneys these days (25% of whom make $45,000 per year or less, per the State Bar of Michigan), you will likely find an attorney who will take your case. Accordingly, P&C is starting the “So, You Want To Sue Our Client” series as a public service to those friends and relatives and to the population in general thinking of suing…especially if they are thinking of suing our clients. It’s wise to have all the facts before you commence litigation.

          We first heard of today’s topic from a former management side colleague from Wolf & Pravato personal injury attorneys, let’s call him Tom, who has now gone over to the “Dark Side” of plaintiff-side litigation. Over a game of golf a few years ago, Tom reported how a plaintiff-client was complaining that prospective employers were able to learn that she had filed suit against a former employer. While top management and Human Resources personnel would generally not reveal prior litigation in a reference, back-channel perspectives between lower level people in the former organization and those in prospective employers often occur and if someone knows about the suit word can be spread. Tom’s client was angry that she had not been advised that her lawsuit would have a future impact upon her. Tom thought everybody knew that courthouse records were public records and that the plaintiff’s lawsuit would be open to inspection by anyone with an interest in them. We don’t know for sure, but suspect Tom’s client was further upset that the former employer’s argument as to why her performance or conduct warranted discharge was there for the world to see, as the employer usually files such a brief in every case.

          Tom’s experience did not prompt us to Blawg on the topic. Rather, a more recent example, couched in modern technology has prompted this column. Recently, P&C defended a client against a plaintiff with an HR degree who performed recruiting functions.   P&C’s initial motion to dismiss (contending the Complaint was deficient) was denied, in an opinion that was picked up by the internet. P&C then invested a lot of time, effort and shoe leather to interview witnesses and presented indisputable evidence that important facts underlying the case were false. The employee’s first attorney abandoned the case when presented with the evidence. The replacement attorney dismissed the case before argument on P&C’s (second) motion to dismiss the case (on the basis of established facts). The new attorney then filed a Motion to Remove Case From Internet. While I will not provide the entire text of the letter because the plaintiff makes some personal and improvident revelations, let me quote a few lines of the letter she attached to her motion:

          “I am writing this letter to kindly ask you [the judge] to remove my case…from the online sources. This case is closed with no intention to be reopened….I am trying to move on with my life and find a new job…but it does not help…since my case is still present online and many people (friends and family) ask me about it on a regular basis (the details of the case, why it is posted online, negative comments about how I will never get a job ever again, etc). It is currently listed on the following web sites, but also [on] other ones. [Cites omitted.] I cannot even keep track of it any longer.

***

          Please allow me to move on with my life and help me remove this case from online sources so that I do not have to answer questions from people who read about it via [the] Internet. I understand it is a public record, but there is no need for its online presence since it is closed….”

          As it turns out, her suit against her former employer pops up on the first page of any Google inquiry about her.

          Technically, it is illegal for employers to make an employment decision on the basis of an applicant’s prior civil rights lawsuit (but not on the basis of other employment-related lawsuits). However: 1) The back-channel communications mentioned above may evolve into “my contact at Acme isn’t excited about her” by the time it reaches the decision-maker, so that the decision-maker doesn’t actually know of the suit; 2) If the suit reveals facts that the plaintiff-applicant has misrepresented to the prospective employer (e.g., “I wasn’t fired”) that is a “legal” reason for not hiring; and 3) Let’s face it- one can’t sue every company one looks to or depends upon for a career and financial support. One gets only so many bites of that apple.  Not only do juries sour on plaintiffs who sue repeatedly, but at some point one needs to start drawing a paycheck. So, accordingly, those considering a lawsuit against a former employer knowingly or unknowingly face a choice: Do they want a lawsuit or a career? It’s a pretty big gamble, especially if the case results in a written record of one’s faults or misconduct.

          Just wanted you to be informed.

DON’T BE TELLING ME ABOUT NO “GATEWAY DRUG”

DON’T BE TELLING ME ABOUT NO “GATEWAY DRUG”

By:  Bill Pilchak 7/15/14

Don’t Be Telling Me About No “Gateway Drug”

Not After What Our Family Has Gone Through!

          As most know, Colorado and Washington have legalized pot and the feds have strangely backed off enforcement of federal laws as their experiment goes forth. There is outcry that legalization will increase the usage of hard drugs, because marijuana is a gateway drug. Because I have personally witnessed such a dramatic escalation in cravings for one substance after another in my own household, I had to step forward and offer my two cents.

          Despite my cheerful demeanor to colleagues and clients, in truth, I face the same personal problem at home almost every night. The addict living with us is a total drain on our resources. She has never held a job although she’s more than twenty years old. She remains in bed until whenever she wants, and more often than not, she goes right back to bed after breakfast. Or she will flop into my favorite chair and defy to be moved.   She doesn’t leave the house for weeks at a time. At any given time, I might return home and find her collapsed on the floor. She’s now just skin and bones, her coloration is splotchy and she throws up a lot. I mean A LOT! Although I try not to use the word in her presence, I often slip up and describe her as “useless.”

          Her personality has changed. She has become loud and demanding. If she doesn’t get a fix, she screams. It’s a nightmare.

          Those who know me well will recognize that I am speaking of Sadie Pilchak, the last remaining in our other-wise empty nest.

          At first, we didn’t even know she was hooked. It started with tablets found in our cupboard.   From there, it was the to-be-expected green leafy substance. If we hoped it would stop at either of those gateways, we were wrong. She started getting into one snowy white substance after another, each new addiction more shocking than the last.

          Well, if I’m going to be any help, I may as well be more specific. We didn’t realize that the kitty-treat tablets were addictive. But soon, no matter how many we gave, they were never enough.   In the summer, when the catnip in the garden bloomed, we of course gave her some, not realizing that it would escalate. I don’t even know how she originally scored cream cheese but she would sit in front of the fridge and yowl long after the bagels were put away.   But it’s hard to admit publicly her current abuse: She’s mainlining cool whip. No pumpkin pie. No strawberry shortcake. Just put some into a dish, please.

          So, my personal experience colors my perspective on what’s going on in Colorado and Washington: It’s an experiment that might go all wrong. I’m happy that Colorado and Washington are taking the gamble, not Michigan, which is not likely to follow suit. Although all 83 counties voted in favor of Medical Marijuana in 2008 (62.67% to 37.33%), a May, 2014 WDIV/Detroit News poll showed 52.1 percent of Michigan voters oppose legalizing small amounts of marijuana for recreational use while 41.8 percent support it, with opinions split along party (no pun intended) lines. I hope that other states wait to see what happens before they jump on the bandwagon. Unlike most issues, I don’t believe I have all the answers on this one, so let me offer a mixed bag.

          First, I’m concerned that with legalization an increasing percentage of our population will become wasteoids and a burden on society. We already have segments of the population who simply don’t aspire to work, let alone focus on achieving something higher, such as a career. I don’t think there is any question but that smoking pot can derail one from a task at hand or his or her long-term ambitions. Statistically, drug users are more likely to miss work than non-users. The one-hit-wonder, Because I got High, appears to be the authoritative treatise on this subject. In case you haven’t heard the lyrics, the singer mentions various tasks he had planned (I was going to go to class, go to work, pay the note on my car, etc.), “but then I got high.”

          Second, I would be especially concerned if a user’s children got access to the pot in their formative years. A couple of stories about marijuana brownies being brought to elementary school have already surfaced. Those episodes have to be dealt with. One might ask: are those episodes more serious than if the kid had brought a fifth of Dewar’s to school? Probably not, but kids don’t often bring fifths of booze to school. Brownies taste better than scotch.

          One cannot discuss the issue without asking how many people (especially working adults) are already smoking pot and whether those who will now start using upon legalization will spin out of control. Personally, I have never been to Colorado. However, I have been informed by others that Colorado is where the flower children went to bloom in the 1970’s and where they are now wilting like the rest of the baby boomers. If the culture is as they say, the uptick in use upon legalization there may not be terribly great.

          The Colorado/Washington experiment forces us to be realistic about this issue. A frank discussion has been suppressed because of the stigma of drug use. But in reality, an experiment has been going on for the last 40-50 years. A July, 2013 Gallup poll finds that 38% of adults admit to smoking marijuana, with 44% of those between 50-64 years of age (those in college 1967-1981) and 49% of those 30 to 49 years of age (in college 1985-2001) admitting to use. Gallup’s own data demonstrates that these figures are understated. In both 1977 and 1985 Gallup surveys, 56% of those 18-29 years of age admitted to having tried marijuana. Unless there has been a dramatic die-off of pot users vs. the general population, 7%-12% of those age groups stopped reporting their prior marijuana usage.

          Our own experience with drug testing has suggested that a significant percentage of the blue collar workforce smokes pot. Though it was many, many years ago at another firm, when one client announced a random testing drug policy and then tested the workforce before employees could quit using, not only did the vast majority of hourly employees test positive, but many of the client’s valued supervisors. Similar results are why virtually no one in business conducts truly random testing and have retreated to “reasonable suspicion” testing: A company’s best performer could be using substances on Saturday night. Certainly that was the case during the cocaine craze of the 1980’s where Wall Street Wunderkinds and other execs were enthralled by the powder.

          Owners and managers of businesses, HR managers administering drug testing programs and governmental leaders who must maintain a public image will be the last to know the true state of affairs regarding marijuana usage. However, one barometer not only measures usage, but presents the greatest bi-partisan argument against legalization. The last three Presidents are believed to have smoked pot in college. (Clinton and Obama admit usage, and Bush refused to answer questions on the subject, reportedly because he did not want children emulating his conduct.) Can’t we all agree and say if pot smoking produces a President like ______[fill in the blank]___, then we want to avoid widespread usage of the substance at all costs?