248-409-1900 dburke@mi-worklaw.com
Is Michigan Serious About Legalizing Marijuana?

Is Michigan Serious About Legalizing Marijuana?

By:  Dan Cohen – 4/23/15

On Sunday, the Detroit Free Press ran an article, “Could pot solve our budget problems?” Having just returned from a trip to Colorado, where marijuana and bong shops were on Main Street in Breckenridge and the smell of cannabis was unmistakable as we walked out of Coors Field after a Rockies game, I was curious to read the article and see how the arguments for and against legalization stacked up according to the author.

The article identifies three Michigan-based groups pushing ballot proposals. According to the Free Press, the Michigan Cannabis Coalition, based in Pontiac, insists that legalization is not about pot, but about tax revenue and jobs creation. Matt Marsden, the group’s spokesperson is quoted as saying, “We’re leaving it up to the Legislature to decide how to tax this, including the edibles, oils, extracts and anything else associated with marijuana. But whatever it comes to-$150 million or $200 million or $400 million a year- that’s money we don’t have coming into the state of Michigan right now.”

The Free Press mentions another group, the Lansing-based “Michigan Comprehensive Cannabis Reform Initiative,” and indicates that group would designate 40% of the tax revenue to the Department of Transportation, 40% to the State school-aid fund and the remaining 20% to local governments. I can already see the campaign potential in “pot for potholes.” The third group mentioned by the Free Press is Farmington Hills-based “Michigan Responsibility Council.” The article reports that this third group would not commit tax revenues to the State at all, but would steer tax revenues to local communities (cities, townships and villages) only.

The Free Press reports that these legalization groups have been watching Colorado very closely, which apparently brought in $8.8 million in January and $9.1 million in February from marijuana-generated by a 10% special sales tax, plus the existing 2.9% state sales tax, along with licensing fees and excise taxes. With nearly double the population of Colorado, the author suggests that Michigan could take in more than $180 million based on similar taxing levels.

While it is clear that tax revenues are the prize, the question should really be: Is the tax revenue worth the costs to society of greater drug abuse. Bill Bennett, former U.S. Secretary of Education, compares marijuana to alcohol, which he says costs society more than $100 billion a year in combined law enforcement and health care. I am concerned about the message legalization sends to school kids, and I tend to share Bennett’s view that it is too early to know what the overall impact has been in Colorado. I am also concerned about kids getting a hold of their parents’ “stash” and how getting high affects personal motivations. In other words, will “stoners” aspire to do nothing and become nothing?   Quite frankly, it is difficult enough for us to compete with China, Japan and India among others, and I bet those societies won’t be legalizing marijuana any time soon.

Moreover, because Michigan’s mental health care system has been gutted in recent years, I question whether we are prepared for the increased substance abuse that is going to occur through legalization. At a minimum, tax proceeds from marijuana would have to go towards building up Michigan’s mental health care system, which will be burdened with the increased substance abuse brought on by legalizing marijuana. Another gift of legalization is the dilemma faced by Colorado regulators with respect to warning labels and consumer education about marijuana edibles, which, according to the Denver Post on April 12, have already resulted in two suicides and one murder.

I just think Michigan legislators and voters need to think this thing through very carefully before plunging into a drug-induced tax fix. The roads can still be repaired if folks in Lansing simply make a decision that will fix the roads with no strings attached. Marijuana tax revenues can wait until the unintended consequences of the Colorado (and Washington) experiments have been studied. If legalization of marijuana is coming to Michigan, let’s make sure it is done right. There will be valuable lessons learned from our friends out West.

 

En Banc 6th Circuit Reverses 2014 Telecommuting Decision

En Banc 6th Circuit Reverses 2014 Telecommuting Decision

By:  Bill Pilchak – 4/14/15

          On July 3, 2014, this Blawg informed readers of the 6th Circuit’s decision in EEOC v Ford Motor Co., which held that given the modern technology now available, telecommuting may often be a reasonable ADA accommodation. Before EEOC v Ford, many opinions held that:

  • Regular and predictable attendance and physical presence in the workplace were essential functions of the job;
  • Jobs often require face-to-face interaction with clients and co-workers;
  • A request to work from home was unreasonable where “productivity inevitably would be greatly reduced;”
  • “Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise.”
  • Telecommuting prevented the remote employee from interacting with other team members.

Fortunately, the entire 6th Circuit agreed to review the 2014 decision en banc, which means that all judges of that court reviewed the case. Even more fortunately for employers, on April 10, 2015, the court reversed and thus voided the 2014 opinion.

One of the points we made in July, 2014 was that: “We find that accommodation issues seldom occur with an excellent employee with a legitimate disability; Too often, marginal or even troublesome employees claim disabilities to avoid discipline or be excused from undesirable aspects of a job.” Thus, not surprisingly the 2015 decision notes that the employee at issue, Jane Harris, a steel resale buyer (from steel companies to stamping plants) “was, on the whole, subpar,” that she placed in the bottom 22% of her peer group in 2007, the bottom 10% in 2008, and her performance got worse thereafter. She also missed 1.5 work days per week in 2008 and was absent more than she was present in 2009.

Another point made in our July Blawg was that “a [telecommuting] policy should provide telecommuting as an option only for employees with a demonstrated objective record of exemplary performance, attendance or significant length of service, to prevent abuses by untried or marginal employees.” Thus, it is significant that the 6th Circuit, after noting three attempts to accommodate Harris through some telecommuting observed that Ford’s policy stated that those who were not strong performers and had poor time-management skills were not “appropriate for telecommuting.”

The policy also limited telecommuting for buyers to a maximum of one day per week because of the need for face to face contact. Ford had evidence of that need for personal interaction:   For years, the resale buyers had to work in the same buildings as stampers to facilitate teamwork, meetings with suppliers and stampers, and on-site availability to participate in face to face interactions.

The 6th Circuit rejected the EEOC’s argument that allowing scheduled telecommuting one day per week for some employees means other employees like Harris can demand to telecommute 80% of the week according to their own schedule, noting that if such were the rule, companies would no longer accommodate 1 day per week telecommuting to avoid that precedent.

The en banc decision reaffirms the rationale that employers have relied upon in denying telecommuting in the past. “An employee who does not come to work cannot perform any of his job functions, essential or otherwise.” “[M]ost jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” Totally squelching the 2014 decision, the 2015 decision firmly holds that “[r]egular, in-person attendance is an essential function – and a prerequisite to essential functions – of most jobs, especially the interactive ones.”

The 2015 decision makes an important proclamation discounting testimony from plaintiff-employees that he/she could work from home, noting that if such testimony created a legitimate question of fact, every accommodation case would go to trial, since all plaintiffs feel they can do the work with accommodation.

As to the “technology” cited by the 2014 decision, the en banc panel said that no evidence of such technology was in the record of the case. Conversely, this panel noted that e-mail, telephone conferencing and limited video conferencing were as available during the plethora of 1994-2012 decisions holding that personal presence is usually an essential function as it was in 2014.

Although the 2014 opinion is now null and void, it is worth remembering this nugget from that decision: “requests for flex time schedules may be unreasonable because businesses cannot “operate effectively when their employees are essentially permitted to set their own hours.”

Finally, our July, 2014 recommendations for telecommuting policy and practices bear repeating, with the addition of the following italicized point from the new decision:

  • Any written policy should provide telecommuting as an option only for employees with a demonstrated objective record of exemplary performance, attendance or significant length of service, to prevent abuses by untried or marginal employees.
  • Require measures to assure the employee is actually working the promised hours, such as:

o   To check in by e-mail to the supervisor when the employee is commencing work, taking time off for meals, medical treatment or inability to work and when finishing work;

o   To be available by land-line phone, if one exists in the home and to have immediate access to data sources during calls. (A cell phone call taken on the beach is often useless to the employer, and unfair to co-workers.)

o   Alternatively, consider requiring connections through video options such as Skype, Gmail video chat, Go-To-Meeting, etc., so the employee’s location is apparent.

o   Require timely responses to supervisor and co-worker e-mail and voicemail messages during regularly scheduled hours, to assure the employee continues to be a resource to the staff at HQ.

For example, ten reports per week. The ADA permits employers to maintain production standards, even:

  •  Require some in-office time, so intellectual capital can be shared, and training can be imparted to juniors. Departmental meetings, required presentations, working lunches and the like are probably good tools for assuring some in-office time. Moreover, require that individuals telecommuting on a particular day come to the work location if circumstances require their presence, as determined by their supervisor.

The NLRB’s Attempt to Re-Write Book on Joint Employment Heats Up

By:  Dan Cohen – 4/3/15

For some time now, the National Labor Relations Board’s Office of the General Counsel has been on the offensive against McDonald’s USA, LLC and its franchise system. The Office of the General Counsel (“OGC”) in essence claims retaliatory action by the McDonald’s franchisee’s stemming from the nationwide protests by fast food workers about their wages. While the underlying facts provide for an interesting backdrop, the NLRB’s theory against McDonald’s USA is what I find to be the bigger story. The OGC has suggested that McDonald’s USA, through its franchise relationship and its use of tools, resources and technology, engages in sufficient control over its franchisee’s operations, beyond protection of the brand, to make it a joint employer with its franchisees, sharing liability for any violations of the NLRA.

Since 2012, the OGC has found more than 100 of the 310 charges against McDonald’s USA and its franchisees to be meritorious. Those that have not been settled have been consolidated into 19 separate complaints across the country, including one in Detroit’s Region 7 office. The OGC consolidated some of the complaints, and hearings began on March 30th in New York. The hearings will eventually move to Chicago and then on to Los Angeles.

The issuance of complaints against McDonald’s came after the OGC filed its amicus brief on June 26, 2014, in Browning-Ferris Industries of California v. Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters. The Browning-Ferris case arose in the context of a union election campaign. The Teamsters sought to organize recycling sorters directly employed by a subcontractor, Leadpoint Business Services, but also asserted that Browning-Ferris was a joint employer with Leadpoint. The case was initially dismissed under the NLRB’s long-standing joint employment test because Browning-Ferris did not exercise enough control over its contracted recycling sorters. The Teamsters filed an appeal, seeing the case as an opportunity “to address how best to evaluate joint-employer status in this increasingly common setting: workplaces where employers use labor contractors or staffing agencies to supply workers.”

In its amicus brief, the OGC argues that the time has come for the NLRB to alter the standard it has used for over 30 years when determining whether two separate and independent employers will be considered joint employers. The current standard was articulated in TLI, Inc., 271 NLRB 798 (1984), and Laerco Transportation, 269 NLRB 324 (1984). There, the NLRB held that legally separate entities are joint employers only when they actually share the ability to control or co-determine the essential terms and conditions of employment and can meaningfully affect matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction of employees. The Board has also indicated that the control must be “direct and immediate.” According to the OGC, however, the NLRB should broaden its joint-employer standard to include an entity that: (1) exercises “direct or indirect control” over working conditions; (2) has “unexercised potential to control” working conditions; or (3) where the “industrial realities” make the inclusion of the purported joint employer essential to meaningful bargaining.

Shortly, after the OGC filed its amicus brief, the Board decided CNN News Network and Team Video Services LLC, and found CNN and its labor contractor were joint employers of the contractor’s unionized employees even though CNN had not been named as an employer in the union’s election petition and had never engaged in collective bargaining. When CNN replaced Team Video with a non-union contractor, the union alleged that CNN terminated Team Video out of anti-union animus and unlawfully refused to bargain with the union about its decision to terminate the contract. The NLRB found CNN to be a joint employer because of the operational control provisions of its contract with Team Video, which granted CNN the authority to exercise control over hiring and work hours, including staffing levels and overtime. The Board rejected the CNN’s argument that the control had to be direct and immediate and ruled that the potential for control to be dispositive. CNN has since appealed the decision.

There is little doubt that the standard being championed by the OGC will have a dramatic impact on the franchise business model as well as the staffing industry. An expanded definition of joint employment will suddenly make franchisors financially responsible for unfair labor practices committed by their franchisees and motivate workers to organize franchisees in hopes of bringing the franchisor (and its much deeper pockets) to the bargaining table. It will also result in a significant expansion of union membership in the private sector as organizing contingent and temporary workers will become far easier. Quite frankly, the stakes could not be much greater, and it is hard for me to imagine how the NLRB’s attempt to change its decades’ old joint employment test will not reach the Supreme Court. But, that will take time as the cases must first make their way through the federal courts of appeal.