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Pregnancy in the Workplace
Posted by: Jennifer Salvatore
January 31, 2012

New York Times Op-Ed "Pregnant, and Pushed Out of a Job"(1/30/12) describes a gap between discrimination laws and disability laws that too often allows employers to legally push pregnant women out of their jobs because they request an accommodation, like a lifting restriction, to maintain a healthy pregnancy. The author rightly notes that it is easier than it should be under existing civil rights laws for employers to fire women whose otherwise healthy pregnancies require some workplace accommodations, and advocates for changes in the law to more clearly protect the jobs of pregnant employees.

However, readers should also understand that the legal landscape is not as dismal for pregnant women as one might think. Every case is unique and there is no safe harbor for employers who wish to discriminate against pregnant workers. Conduct described by the author may violate Title VII because such practices have a disparate impact, it can be retaliatory if done to avoid granting an upcoming medical leave or to avoid paying benefits, and it's just plan discriminatory when an employer illegally perceives a pregnant woman as disabled (and therefore unable to do the job). In short, there are arguments to make under existing law to protect your job. If you are experiencing hostility or discrimination from your employer because of the need for a pregnancy-related accomodation, you should seek legal advice. We can help protect your job now, even while the legislators work on making existing law better for women and families.

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The "Ministerial Exception"
Posted by: Edward Macey
January 12, 2012

In 2004, a Michigan teacher was fired by her employer after asserting her rights under anti-discrimination laws and brought a straight-forward discrimination lawsuit. However, the United States Supreme Court recently ruled that she could not proceed with her claim. Why did state and federal anti-discrimination laws not apply to this teacher? The Supreme Court ruled that she was a "minister" in the church where she taught and that therefore, anti-discrimination laws do not apply to her.

In Hosanna-Tabor v. EEOC, the Supreme Court for the first time formally recognized the so-called "ministerial exception." The Court was confronted with the competing interests of the First Amendment's guarantee of religious freedom and anti-discrimination laws.

In the case, Cheryl Perich was a teacher at Hosanna Tabor Evangelical Lutheran Church in Redford. After starting as a "lay" teacher, she completed her colloquy and thus became a "called teacher" and a commissioned minister. Ms. Perich served her church through teaching. She focused on religious teachings for only 45-minutes per day, and other "lay" teachers did the exact same job as her.

Nonetheless, a unanimous Supreme Court determined that the First Amendment made anti-discrimination laws unenforceable in this setting. "The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs."

The Court did not fully determine the reach of the ministerial exception. It is obvious that the head of a church would be covered and that a janitor with no ministerial role would not. This opinion gives a great deal of discretion to religious organizations to designate their employees as ministers, but the court was careful to note that mere titles are not sufficient in and of themselves. In this case, it was important that Ms. Perich's "job duties reflected a role in conveying the Church's message and carrying out its mission." She regularly led her class in prayer, religious instruction, and occasionally led school-wide chapel service.

The full reach of Hosanna-Tabor will not be immediately known, but it is important for employees of religious organizations to understand that they may not have the same employment rights as other employees. While anti-discrimination laws are certainly a good thing, the Supreme Court determined that they do not trump the First Amendment.

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White House Announces New Department of Labor Regulations for Home Care Workers.
Posted by: David Blanchard
December 15, 2011

A New York Times article reported today suggests that revisions to overtime and other regulations under the Fair Labor Standards Act may be in the works. A decades old exemption to the FLSA designed to protect nannies, maids, and babysitters will likely be revised or eliminated in order to extend FLSA protection for home health care workers. Home health care work is one of the fastest growing sectors in Michigan and across the nation. In central Michigan especially thousands of people work in the industry, where demographics lead to long drive times to and from home-bound consumers. One possibility for the new regulations would be to require compensation for certain drive times, and overtime pay where applicable. The change will make a significant impact for the income in thousands of households.

Today's article quotes Mid-Michigan Congressman Tim Wahlberg, who claims that despite a lift it would bring for many home care workers in his district, he opposes Fair Labor Standards coverage for home care workers, based on the burden for home care employers, consumers, ortax dollars. The proposed changes, whatever form they take, will have to go through an extensive "notice and comment" period before their adoption. Hopefully a balance can be struck that addresses the business concerns while still advancing the concept of fair pay for home care workers.

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Sexual Harrassment: Perception versus Reality
Posted by: Staff NachtLaw
December 12, 2011

An opinion piece on CNN.com hits on a sensitive nerve. The charge is that people understand and respond to accusations of marital infidelity in a way that is very different from allegations of sexual harassment. The author, Barbara J. Risman writes that men respond to infidelity and assign blame and responsibility because they see it as a problem of one's own choosing. When it comes to workplace harassment however, the author concludes that these allegations stir up other feelings among men: fear for how the employment laws can be used, resentment, or assumptions that sexual harassment is just a trap for male bosses who "say the wrong thing" in the elevator.

From my own experience litigating sex discrimination and harassment for years, I have to agree there is a ring of truth to these comments. SOME men have these attitudes, in SOME workplaces. It is a stretch to say all men in the workplace feel this way but there is certainly an element of it. The strange thing is that these attitudes persist in some corporate cultures even though the types of allegations generally prosecuted under the sex discrimination laws are very serious and not just a matter of the boss "saying the wrong thing."

Remember, victims of sexual harassment risk everything by coming forward: their job, their reputation. Victims usually only come forward when there are no other options left. Most harassment cases that we see turn into lawsuits deal with inappropriate touching, sexual propositions, or even sending pornographic pictures to the victim. This is what we mean when we say "sexual harassment" at the Firm. Public attitudes that treat workplace harassment as "accidental" rather than intentional victimization undermine our workplace discrimination laws and hide the real evil that is out there in too many workplaces.

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Are professors who commit fraud subject to criminal liability?
Posted by: David Nacht
December 05, 2011

In a current case reported in Medscape Medical news, see http://www.medscape.com/viewarticle/754423?src=ptalk, Janis C. Kelly reports about a Nevada researcher, July Mikovits, Ph.D., who is fielding criminal as well as civil claims stemming from missing research notebooks concerning chronic fatigue syndrome. Dr. Mikovits, according to the report, "was charged with two felonies: possession of stolen property and unlawful taking of computer data, equipment, supplies, or other computer-related property". She was found at her California home and she spent some nights in jail before any finding of guilt has occurred.

As is often the case, the allegations of fraud in this case first surfaced when other researchers were unable to replicate findings.

There have also been news reports of a criminal investigation in Massachusetts concerning a Harvard professor accused of fraud.

While research fraud in science has been the subject of Congressional interest for a couple for a couple of decades, prosecutors have not historically pursued criminal claims. It appears we are on the cusp of a change in that attitude.

In the private sector, we are seeing the FBI investigate theft of trade secrets theft cases much more routinely, particularly, when American companies are losing material to foreign companies. Now that researchers often have access to valuable intellectual property which are easily portable, that is one motivation for universities, non-profits and companies to bring in the authorities to avoid the loss of data. 

But there is also a growing concern within the academic and research communities about the extent of fraud and the potential for the loss of confidence in Congress and therefore a threat to funding for academic research. So we can expect to start seeing more routine referrals from vice presidents of research and the general counsel's office of universities to law enforcement authorities, as well as the now-routine reports to NIH and other funding agencies.

Professors or other researchers facing claims of intellectual dishonesty must be vigilant in defending themselves. Do not try to defend yourself in an internal inquiry within the university or research institute. Your statements may be used against you in a later criminal proceeding.

You should retain a law firm with experience in employment law; knowledge of federal research funding practices (if your lawyer doesn't know what an R-01 is, get a different lawyer!); academic/research cultural norms; and criminal defense of fraud cases. Our firm is one of the few nation-wide, in which the same lawyers have the expertise to handle all aspects of such a claim.

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US Supreme Court Deciding if Pharmaceutical Sales Representatives Entitled to Overtime Pay
Posted by: Edward Macey
December 01, 2011

The United States Supreme Court agreed this week to decide whether pharmaceutical sales representatives are entitled to overtime pay. Pharmaceutical sales representatives regularly work more than 40 hours a week but are not generally paid overtime for their additional work. In a series of lawsuits across the country, these hard-working employees are challenging this practice and arguing that they are entitled to overtime. To date, courts have come down on both sides of the issue. A federal appeals court in New York ruled that Novartis sales representatives are entitled to overtime pay. A federal appeals court in California ruled that Glaxo SmithKline sales representatives are not. The Supreme Court will review the California case and hopefully decide whether these employees are entitled to overtime or whether, as the pharmaceutical companies claim, the "outside sales exemption" to the Fair Labor Standards Act applies, meaning sales representatives are not entitled to overtime pay. The United States Department of Labor argues that the exemption does not apply and that the sales representatives are entitled to overtime pay. The Supreme Court should issue a decision next spring and that decision will have an enormous impact on thousands of employees and the entire operation of the pharmaceutical industry.

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President Obama Signs Jobs Bill: VOW to Hire Heroes Act Creates Incentives for Employers to Hire Michigan Veterans
Posted by: Staff NachtLaw
November 22, 2011

Yesterday, President Obama signed the VOW to Hire Heroes Act, a portion of his jobs bill, into law. The act will provide tax incentives for companies that hire unemployed veterans and veterans with service-connected disabilities.

The act is coupled with the introduction of more resources to aid veterans in their search for jobs, and many companies have rolled out their own veteran-specific hiring resources and initiatives in light of the act.

According to the Department of Veteran's Affairs, there are about 725,000 veterans living in the state of Michigan. With Michigan's unemployment rates being one of the highest in the nation, the VOW to Hire Heroes Act will give many of our unemployed Michigan veterans an opportunity to get back to work. 

 Read the signed bill here.  

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Job Discrimination Claims Reaching All-Time High?
Posted by: David Nacht
November 18, 2011

            A recent news story indicated that claims of job discrimination are way up.

The interaction between a bad economy and job discrimination claims is complicated. On the one hand, when an employer has a genuine reason to reduce its operations and a facility is shut down, then any particular person who works in that facility cannot claim under most circumstances that they are a victim of discrimination. But, when senior management of any large employer sends a directive throughout the organization to Human Resources personnel and to junior managers that a reduction in the head count is required, the discretion that lower-level managers may use can be discriminatory or retaliatory. Unscrupulous managers take advantage of the new pressure to reduce head count by selecting those employees who are perceived to be trouble-makers or have poor absenteeism. But the trouble may be caused by someone who has a lawful right to cause trouble. Nobody wants to hear somebody complain. But, a victim of discrimination due to race or gender or disability has a lawfully protected right to complain. Furthermore, an employer has an obligation under Title VII of the Civil Rights Act of 1964 and under the laws of many states, including Michigan, not to retaliate against a person who brings such a claim in good faith. Furthermore, if a person is absent because s/he has a serious health condition or suffers from a disability, then the Family and Medical Leave Act (FMLA) and/or the Americans with Disabilities Act (ADA) prevent, in many cases, the absenteeism from being used as a basis to select a person for termination.

The truth is, in this area of the law, as in so many, that the devil is in the details. If you are worried that you are being singled out as a result of unlawful discrimination or retaliation, then you owe it to yourself to consult with a knowledgeable attorney to find out what your rights are. We all hope that the economy improves and that employers are clamoring for workers, but in good times and bad I am proud to practice at a firm that stands vigilant for the rights of employees.  

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Nacht Law Welcomes Associate Attorneys Elizabeth Hinson and Carrie Waggoner to Michigan Bar
Posted by: Staff NachtLaw
November 04, 2011

Nacht Law is pleased to announce that first-year associates Elizabeth K. Hinson and Carrie Waggoner both received passing grades and were sworn into the Michigan Bar on November 4, 2011. 

Ms. Hinson and Ms. Waggoner's full-length biographies can be found at our website. 

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President Barack Obama American Jobs Act; Proposals Prohibit Employers from Discriminating Against Unemployed Workers in Hiring
Posted by: David Blanchard
September 30, 2011

It seems wrong and backward, but several recent reports suggest that a job applicant's current status as unemployed is cutting him or her out of many job opportunities.  In Michigan, with one of the Nation's highest unemployment rates, this trend seems especially unfair. If we are going to get serious as a nation about putting people back to work, we have to make sure that the unemployed are not cut out from equal job opportunities.  It seems that the White House gets it.

Earlier this month, the White House released President Obama?s proposed American Jobs Act. Point three of the Jobs Act specifically addresses this area of job search discrimination: "Pathways Back to Work for Americans Looking for Jobs." The Act proposes a $4,000 tax credit to employers to hire long-term unemployed workers and prohibits discriminating against unemployed workers when hiring. 

The Act still allows employers to consider the reasons why an applicant is unemployed, but it establishes a sort of "relevance test" that would seem to at least prohibit blanket policies of refusing to consider unemployed job candidates. If passed with this provision, the Jobs Act would be a significant step forward in the struggle to get the unemployed victims of the economy back into the workforce.

See the full text of Obama's Jobs Act here.

See the White House Fact sheet here. 

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New Michigan Law Expands Expungement Options, Eliminates Bar Based on Minor Convictions
Posted by: Staff NachtLaw
July 29, 2011

On June 23, 2011, Governor Rick Snyder signed 2011 PA 64 into effect, which allows judges in Michigan more flexibility in expunging an individual’s criminal records. Previously, the court was not able to clear an individual’s criminal records if he or she had more than one offense on his or her record.

Under the new law, individuals may have up to two minor offenses on their record in addition to the offense for which they are applying to have removed. A minor offense is considered a “misdemeanor or ordinance violation for which the maximum permissible imprisonment does not exceed 90 days, for which the maximum permissible fine does not exceed $1,000.00, and that is committed by a person who is not more than 21 years of age.”

One must still wait for five years to pass from the sentencing or completion of imprisonment (whichever is later) of the most recent offense to apply for expungement. But this is great news for jobseekers who previously could not pass criminal background checks due to a criminal conviction that was previously unavailable for expungement. The new law acknowledges that a criminal record can adversely affect individuals for a lifetime and gives an opportunity for individuals to have a clean slate on which to move forward with their lives.

Do you feel that you might be eligible for an expungement in light of the new law? Nacht Law’s criminal defense attorneys are committed to helping. Contact our criminal defense attorneys for guidance on your rights and assistance through the expungement process. 

Read the Public Act here.  

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Supreme Court Opinion in Wal-Mart strikes another blow for legal rights on the job, and efficiency of the court system
Posted by: Staff NachtLaw
July 15, 2011

In a 5-4 opinion, the US Supreme Court adopted a new narrow interpretation of the class action laws, effectively ruling that each of the approximately 1.5 million women employees of Wal-Mart who alleged to have been discriminated in hiring and promotion decisions must now each find a lawyer and bring an individual lawsuit to enforce their employment rights created to protect from illegal "glass ceiling" policies and other forms of sex discrimination. It was not a win "on the law," but it is a victory that Wal-Mart (and other big businesses) has lobbied and spent untold amounts in legal fees to get. Luckily, the Court has not struck down the civil rights laws entirely. What Wal-Mart has achieved is an effective bar for hundreds of thousands of American workers who will now find it difficult or impossible to find legal representation for difficult failure-to-promote claims based on Wal-Mart's alleged nationwide policy of sex discrimination and denying promotions.

The suit, Dukes v. Wal-Mart, Inc. was initially brought in 2000 by Betty Dukes. At the time, she had been working for Wal-Mart for six years and had consistently received excellent performance reviews. She was looking to move up in the company, but was denied the opportunity to receive training that would make her eligible for a salaried position. Ms. Dukes found that there were other women employees of Wal-Mart who had been treated similarly, and the suit was grown to include up to 1.5 million women plaintiffs who were charging Wal-Mart with violating Title VII of the Civil Rights Act by discriminating against women in hiring, promotions, and pay. The Supreme Court ultimately decided that the plaintiffs did not satisfy the commonality requirement in the Federal Rules of Civil Procedure in creating a "class" to pursue the claim as a group. Although the class-action claim was thrown out, it does not mean that the women's discrimination claims did not have merits-the plaintiffs will now have to pursue their discrimination claims as individuals.

For employment lawyers on the front lines of protecting the employment rights of American workers, the Wal-mart decision is only the beginning. Skilled employment lawyers at Nacht Law and others across the country will now have to develop individual cases to combat discriminatory job policies like that alleged in the Wal-mart case. The employment lawyers at Nacht, Roumel, Salvatore, Blanchard & Walker PC are ready to help for those individuals and groups of workers suffering illegal job discrimination. Connect with our employment lawyerstoday to discuss your job discrimination issue.

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U.S. Department of Labor Releases Timesheet App for Smartphones
Posted by: Staff NachtLaw
July 13, 2011

The U.S. Department of Labor (DOL) released a timesheet application, "DOL - Timesheet," for smartphones back in May of this year. This app allows employees to keep track of their hours, break time, overtime, and it can calculate overtime wages owed based on hours inputted as well. The app also compiles links to relevant information on the DOL's Wage and Hour Division site.

Though it is currently only compatible with iPhone and iPod touch, the DOL is looking to expand its userbase to include Blackberry and Android phones as well. And for those without smartphones? The DOL has also created printable versions of the app content for handwritten updates.

"DOL - Timesheet" is a notable effort by the DOL to accommodate and encourage employees to integrate what was before a very separate aspect of their work records—typically only kept by employers—to the employee’s personal records. What’s more, Timesheet promotes greater accountability with employers to keep accurate hour and wage records as well.

We are excited to see the expansion of this app and similar time/wage-keeping technologies as the DOL expands Timesheet’s functionalities. You can download Timesheet for your iPhone/iPod Touch here.

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Signs you are about to get fired
Posted by: Staff NachtLaw
March 24, 2011

(March 10, 2011) If your boss' demeanor to you has changed, your input isn't valued as it used to be, and your work is treated with indifference or met with increased scrutiny, then it's time to face the fact that your work relationship is deteriorating. Like personal relationships, work relationships go through phases: conflict, separation, and divorce. Being fired can even be just as painful as a divorce. This article is a reminder that the time to obtain legal counsel is when you notice the early signs, so that you can take proactive steps to save your job - or if that is not possible, to learn the full range of legal options you have if termination is inevitable.

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Economic Development Ideas for Governor Snyder
Posted by: Staff NachtLaw
March 24, 2011

(January 21, 2010) In a recently published article on Ann Arbor.com, employment lawyer David Nacht of Nacht Law offers economic growth ideas for newly elected Michigan governor Rick Snyder. The article stresses that the past two Michigan administrations have not done a decent job in generating jobs for its citizens, so new measures should be taken to improve our economic health. Nacht suggests that we should rebuild our economic stability by strengthening what we already have.  Read the article here.

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You Are Fired
Posted by: Staff NachtLaw
March 24, 2011

(January 20, 2011) In the employment world, one of the most dreadful and feared moments must be upon receiving the news that you're fired. But among other things, it is important to realize that being fired is not the end of the world. That's the advice provided by Ann Arbor dot com commentator and founder of jobsinA2. In the article, Kim Kachadorian reminds us that, although the initial shock may seem devastating, almost everyone has been fired at least once in their lifetime, and life goes on. At the same time, it is healthy and important to grieve for your job loss, even if you hated your job and were looking to work elsewhere. But as soon as you feel ready, it is a good idea to get new business cards (about 250 or so) that promote your strongest job kills, and start networking. As Kim explains, you may find this is the perfect opportunity for you to start that business you had dwelling in your head for so long. Get advice from those that know small business: your banker, the Small Business Administration, - or one of our business and employment lawyers at Nacht Law.

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Employers send out the "sick-day spies"
Posted by: Staff NachtLaw
March 24, 2011

(December 09, 2010) Most employees wouldn't be surprised to hear that an application for workers compensation or requesting a medical leave may result in a private investigator on your tail.  The employer's insurance company saves money if they can find evidence to suggest an employee is lying about their condition.  But up until now, common wisdom was that run of the mill "sick days" are your own, you can do what you want with them, right? Not necessarily so.  Especially when employee benefits are at stake, employers are increasingly calling in the "sick day spies" to check on employees, according to an article recently published by Bloomberg Businessweek. Whether this type of spying is legal or whether it violates employee privacy law is less than clear.  A federal court in Chicago has said that employers may be legallyjustified in their spying, but differences in Michigan state law could lead to a different result.   Any argument about employee privacy will likely depend on a balancing between strength of employer justification against the level of invasion of worker privacy.

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HP Lawsuit Relevant to Ann Arbor Tech Sector
Posted by: David Nacht
March 24, 2011

(September 16, 2010) On the September 8, 2010 front page of the Wall Street Journal, an article described how Hewlett-Packard was suing its former CEO, Mark Hurd. Mr. Hurd had taken a severance package from HP, and in exchange had signed a document in which he had promised not to reveal confidential information. He did not sign an agreement not to work for a competitor, a so-called "non-compete" agreement. Upon cashing his check for over $40 million, Mr. Hurd announced that he was going to work as president of a unit of Oracle, the leading database company, which has just entered the hardware business in which it will compete with HP.

The lawsuit alleges that by working in his new position, Hurd will inevitably use information that he has in his head that belongs to HP.

The legal doctrine upon which HP is relying, is known as "inevitable disclosure". The doctrine holds that even if a person does not explicitly reveal secrets that he holds from a prior position, his actions and choices will be influenced by that knowledge simply by performing his job in his new position.

Michigan courts have not yet decided whether to adopt inevitable disclosure in the interpretation of trade secret litigation. Michigan generally allows employers more protection to prevent former employees from using their knowledge to compete because Michigan courts explicitly allow "reasonable" non-compete agreements. This is in contrast to California, which disfavors such agreements.

The argument in favor of non-compete agreements and legal doctrines such as inevitable disclosure are clear. People should not be able to use information that does not belong to them against the employer that shared the information with them. The argument against such doctrines is equally clear. In a capitalist economy with a free labor market, employers should not be able to prevent employees from earning a living by working wherever they choose to do so. That argument holds more force when employers mandate that employees sign non-compete agreements as a condition of keeping their job, as is commonplace among many Michigan engineering companies. Employers should have a right to purchase an employee's agreement not to work for a competitor, but the price should be reasonable and not serve to prevent the employer from having to pay a competitive wage to keep a star employee.

The real question is, "Who owns information that is inside someone's head?" And as we enter the newest phase of the information economy, the courts are full of decisions trying to answer that question in one form or another.

As we strive to develop a vibrant technology sector in the Ann Arbor area, companies and employees will be dramatically affected by the development of the law as it affects the definitions of ownership of information.

This article was originally published on September 16, 2010 at AnnArbor.com. 

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The Hazy State of Employment Protections for Medical Marijuana Users
Posted by: David Blanchard
March 24, 2011

(July 21, 2010) Michigan voters legalized the medicinal use of marijuana in 2008, and as of June 2010, about 20,000 Michigan residents have registered for the program. These medical marijuana users are explicitly protected from criminal prosecution, but the law is hazy on whether employers may not hire or even fire them because of their marijuana use.

In a recent and well-publicized case out of Battle Creek, Wal-Mart fired an employee, Joseph Casias, because he used marijuana off the job to treat his cancer. The ACLU has filed suit in the case, arguing that Wal-Mart could not fire Casias for using a legal medical treatment to relieve his pain. Whether Casias will succeed in court is unclear, and his uncertain predicament is common in the fourteen states that have legalized medical marijuana. Most of these states do not protect medical marijuana users from adverse employment actions. For example, the California Supreme Court ruled in the 2008 case Ross v. Ragingwire Telecommunications, Inc. that California employers were free to not hire or even fire an employee based on that person's state-authorized marijuana use. In April 2010, the Oregon Supreme Court held in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Indudstries that the state's disability antidiscrimination law does not protect the use of medical marijuana because, while such use is legal in the state, it is illegal under federal law. Oregon's high court identifies a source of confusion in all states with medical marijuana laws-even though these states authorize the use of marijuana for certain purposes, all use of the drug is still criminalized under federal law. With no clear guidance from the U.S. Supreme Court on whether state employment protections are preempted by federal criminalization, individual state courts must decide that question for themselves.

While other states' courts have found no such protection exists, the Michigan Medical Marijuana statute is unique. Unlike the medical marijuana laws of states like California and Oregon, Michigan's law includes explicit protections for employees. Under the statute, individuals carrying a medical marijuana card cannot be "denied any right or privilege including . . . disciplinary action by a business or occupational or professional licensing board." MCL 333.26424. The Michigan law also makes specific findings that suggest the voter initiative must be understood as public policy of the state. ACLU lawyers in the Casias case here latched onto this language in alleging that the firing of someone for their medical marijuana use is a discharge in breach of public policy.

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The Fight to End Forced Arbitration
Posted by: Staff NachtLaw
March 24, 2011

(July 13, 2010) Most Americans go to work each day without a thought about the laws that govern their workplace. They assume that the various state and federal laws will protect them, that the laws are fair, and if they are treated unfairly- bullied, harassed, discriminated against, or otherwise have basic civil rights denied-they can at least have their day in court. Our constitution guarantees a right to trial by jury, right? Not so for millions of millions of Americans who have been forced into signing arbitration clauses as a condition of employment, or even just for the right to apply for a job.

Our Michigan courts and the federal courts have increasingly allowed unreasonable and downright sneaky attempts of employers to ban lawsuits from their employees in "arbitration clauses" hidden in the fine print of employment applications or the pile of documents presented to the common worker at the time they are hired. We know that people rarely read the fine print at these times. We know that the last thing they are anticipating is the possibility that a new employer will break the law. The only thing on an employee's mind is getting the job, and where the next paycheck will come from.

At Nacht & Associates our job is to fight back against these unreasonable contracts of adhesion. Our job is to fight for your right to have civil rights claims decided by a jury, not in a secret unappealable decision by an arbitrator chosen by the company. We fight back with the constitution, laws, and all tools available to us, but the law is stacked against our workers. The real solution needs to come from out legislature.

Earlier this year, Congress made a huge step forward by passing the "Franken Amendment" to the defense appropriations bill. Now, thanks to Senator Franken, defense contractors who expect taxpayer money may not use forced arbitration to deny employees their civil rights. Unfortunately, the law is temporary and must be renewed each year, and it only applies to contractors receiving over one million dollars in federal funds. The real solution is to ban the practice of forced arbitration clauses pushed on employees before they even have a dispute. That is why I joined my colleagues last month on Capitol Hill, fighting for the rights of Michigan workers, and the simple right to go to court. Right now Congress has a permanent solution within reach - the Arbitration Fairness Act. It has bi-partisan support and the vast majority of Americans of all political stripes support this sort of fix. The question is how long before Congress will act.

If you are an employee that finds yourself illegally treated and now forced into arbitration based on the fine print of an arbitration clause, the first step is to contact a lawyer that will fight for your rights - whether in court or in front of an arbitrator. The next step is to contact your representatives in Congress and tell them to pass the Arbitration Fairness Act. Tell your story. Tell them how the civil rights laws they passed decades ago can't even be enforced in court so long as this practice is allowed to continue. Tell them your right to a jury trial is not negotiable.

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