Employment Law

Wage and Hour Law Protects Workers Who "File" Verbal Complaints
Posted by: Staff NachtLaw
September 11, 2011

There are many federal and state laws that protect employees from retaliation after they have properly filed a complaint (wage and hour violation, discrimination, sexual harassment). For instance, it is illegal for an employer to fire or demote an employee who has filed a charge of discrimination with the EEOC. But until the recent U.S. Supreme Court ruling, it wasn't entirely clear whether workers who make a verbal complaint of wage violations to their employers have "filed a complaint" within the meaning of the Fair Labor Standards Act./p>

In Kasten v. Saint-Gobain Performance Plastics Corp., the employee had verbally complained that the time clocks to record working hours were beyond the changing area where the workers must wear protective gear, which forced employees to spend extra time putting on and taking off the gear. He had followed the corporation’s proper workplace grievance procedure, but he had not provided anything in writing. The company fired the employee shortly after. He brought the case to court, asserting that his dismissal was retaliation for his complaint. Of course, the employer argued that the anti-retaliations provisions do not apply because the employee had not "filed" a written complaint...

In a 6 to 2 decision, the Supreme Court ruled that protection from unlawful retaliation extends to cases where the complaint is filed orally. Justice Stephen G. Breyer, writing for the majority, wrote that the phrase "filed any complaint" in the Fair Labor Standards Act of 1938 doesn't only apply to written complaints, since the word "filed" sometimes also concerns spoken submissions.  The court explained the purpose of the law is to protect workers from poor working conditions by encouraging them to speak up without fear of being retaliated against.  And since "illiteracy rates were particularly high among the poor" in the years before the law was passed, it is reasonable to conclude that protection from retaliation should be offered to those who complained only verbally. Moreover, if the scope of the law's protection is narrowed to only cases involving written complaints, Justice Breyer noted that the use of government hotlines and the like would be severely disrupted.

The encouraging result in the Kasten case strengthens employee protection from illegal retaliation. But it is important to note that the ruling doesn't imply that just any grumbling at all will constitute "filing a complaint."  According to the Court, "A complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection."

Bringing forth a legitimate concern to your employer often involves complex legal and situational issues that are not immediately transparent. It is at times difficult to know whether you’ve adequately made your concerns known to your employer. It is also sometimes hard to determine what your next steps ought to be after you’ve filed a complaint. Knowing your rights as an employee and the laws that protect your rights are crucial in workplace dealings. The employment lawyers at Nacht Law are dedicated to fight for the employment rights that all employees are entitled and deserve.

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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
June 22, 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 lawyers today to discuss your job discrimination issue.

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Signs You
Posted by: Staff NachtLaw
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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You're Fired
Posted by: Staff NachtLaw
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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Hostile Work Environment
Posted by: Staff NachtLaw
December 24, 2010

There is a concept in the employment world called hostile work environment. The concept in law is different from the one in most people's heads. Many people who have a boss that yells or creates a high stress working environment are victims of a hostile work environment in the literal sense, but that kind of environment is not necessarily illegal. To have a boss that yells or makes employees cry is not an uncommon phenomenon in the United States, and the law does not prevent it--except when the motivation is discriminatory. A hostile work environment, in the legal sense, is a workplace made hostile because of a person's gender, race, and/or disability.

Sexually hostile work environment cases are by far the most common. These cases typically involve women who are repeatedly subjugated to offensive conduct of a sexual nature. Instances of repeated touching, exposure to pornography, being asked out on dates, and the like will usually constitute a sexually hostile work environment. It is uncommon for a single incident to be considered a hostile work environment under the law, but a single case of aggressive physical assault can constitute a hostile work environment.

Racially hostile work environments typically must be rather extreme for the courts to provide relief. In the case of African-Americans, we're talking about the repeated use of the N-word or conduct involving references to slavery. In the case of Arab-Americans, we're talking about the repeated use of derogatory terms referring to national origin. The key here is that the conduct should be considered pervasive, and that the victim is being reasonable when he or she takes offense.

Under Michigan law, if the offender is a coworker or a boss, the employee must notify the company through a sexual harassment hotline, make a complaint through a human resources department, or contact the owner to give the company a chance to resolve the problem. Often, just mentioning it to a co-worker of even a supervisor is not considered sufficient notice for the company to be held responsible for fixing the situation. Our firm advises clients how to make a complaint in a way that protects their rights and stops the conduct, while carefully considering the impact on their careers.

Cases of a non-sexual, gender-based hostile work environment or disability-based hostile work environment are very rare in the courts, but they occur more often than is commonly recognized. A boss who picks on a person with a disability in a pervasive manner or who regularly demeans women but not men might be vulnerable to a law suit. Our law firm provides guidance in handling such situations.

Moreover, while the doctrine of bullying has recently taken on prominence regarding kids in school and on the internet, the law still doesn't protect people from bullying in the workplace as a general rule. Truly extreme behavior fits within another category, "intentional infliction of emotional distress," but the courts are very careful in limiting the cases being brought under that doctrine to extreme situations.

We counsel people in many different settings who are under pressure, unsure of their legal options, and how it will all impact their careers. You don't have to suffer alone; come in for a consultation.

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Criminal charges present special dangers for public school employees
Posted by: Staff NachtLaw
December 22, 2010

For any professional, the prospect of a criminal charge, even a simple misdemeanor, can present serious threat to a job and a career.  For teachers and public school employees, 2005 Michigan "School Safety" legislation (2005 PA 129-131 and 138) presents a special danger for future employment.  Although it has been effective since January 1, 2006, many criminal defense lawyers and even judges are unaware of the special reporting requirements for teachers charged with a crime.  As a result, minor violations of the law can too often become major employment issues with far reaching and devastating employment consequences. In order to protect the rights of their clients, competent criminal defense lawyers need to know the law and advise their clients to avoid the traps. For those facing arraignment on a criminal charge, even before most defendants secure counsel, proper notice of their obligations from the district court judge may be all that stands between them and the unemployment line.

Example: a public school teacher is charged with a felony or one of many enumerated misdemeanors --   felony obstruction of an officer is a common arraignment charge -- maybe based on "mouthing off" or simply on a refusal to take a breathalyzer. His criminal defense lawyer believing this offense can easily be dismissed later allows the client to be arraigned on the charge and a week later negotiates a dismissal of the charge in exchange for a non-criminal "civil infraction" or some other minor offense.  All is well, right? Not so fast.  If the arraignment is not reported within three days, the public school teacher is in violation of the School Safety Act and subject to summary dismissal.  Unfortunately, many school districts are taking a hard line "no excuses" approach on enforcement of the act.

Among other things, the School Safety Act imposes two reporting requirements: it requires school employees to self-report to both the employing district and the Michigan Department of Education (MDE) (1) when they have been arraigned and (2) when they have been convicted of a felony certain enumerated misdemeanors. The self-reporting must be done within 3 business days.  For arraignment, any felony charge must be reported and the same goes for a number of misdemeanor offences, including among other offences, breaking and entering, larceny, assault, assault and battery, drug manufacturing or delivery,  child abuse (in any degree), and any sex crime listed in the sex offender registry act (such as criminal sexual conduct, indecent exposure, assault with intent to commit csc, or any number of similar ordinance violations). Michigan has developed disclosure forms for teachers arraigned or convicted on criminal charges, but they are rarely if ever made available at the place and time of arraignment.

Upon conviction the law requires mandatory disclosure to the court and even requires prosecutors to notify school districts directly.  However, the most dangerous time for many teachers is arraignment, where representation is the exception and magistrates or judges are crunched for time. In order to ensure protection of teacher rights, it is crucial that criminal court judges and criminal defense lawyers are aware of, and can advise on, the self-reporting obligations. This is because if the employee fails to report the charge or conviction, then the school district may discharge the person from employment and terminate his contract. Moreover, the failure to self-report may render the employee guilty of an additional crime: if the non-reported charge or conviction is a felony or listed (sex crime) offense, then the criminal defendant may be guilty of a felony; and if the non-reported charge is any other enumerated misdemeanor, then failure to disclose is another misdemeanor in itself.

It is essential that judges and lawyers are aware and able to advise on the special legal requirements for teachers, so all employees working for a school district may avoid serious threats to their job based only on a a lack of information about legal obligations.  At Nacht Law, we are proud of our ability to provide sound legal advice to teachers, paraprofessionals and other school employees, and solid criminal AND employment representation to avoid these pitfalls.

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Employers send out the "sick-day spies"
Posted by: Staff NachtLaw
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 legally justified 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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Laws Provide Protection for Nursing Mothers
Posted by: Staff NachtLaw
December 01, 2010

The health benefits of breastfeeding are widely recognized. Nevertheless, there are many practical hurdles to overcome – especially for working mothers. The American Academy of Pediatrics currently recommends that breastfeeding continue for at least 12 months, and thereafter for as long as mother and baby desire. Also, the World Health Organization recommends continued breastfeeding up to 2 years of age or beyond. Recent legal developments are making it easier for women to adhere to these guidelines.

Employers Required to Provide Lactation Breaks Due to Recent Amendments to FLSA

On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (PPACA). As part of the PPACA, the Fair Labor Standards Act (FLSA) (29 USC § 207) was amended to require employers to provide reasonable break time and private spaces for nursing mothers to express breast milk during the workday for up to one year after a child’s birth.

Under this new FLSA provision, employers must provide employees with enough time to express breast milk each time they need to do so – whether or not the timing is convenient from the employer’s perspective. There are no specific limitations on the number, frequency, or duration of the breaks. Nevertheless, employers are not required to compensate employees for time spent expressing breast milk. Also, the Department of Labor has issued guidelines stating that only employees who are not exempt from FLSA’s overtime pay requirements are entitled to lactation breaks under FLSA.

In addition to break time for covered employees, employers must also provide a private place, other than a bathroom, that is shielded from view and free from intrusion of coworkers and customers for women to express breast milk. According to the Department of Labor’s guidelines, if the space is not exclusively dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement.

The law applies to employers of all sizes. However, employers with less than 50 employees are not required to provide lactation breaks if they can show that doing so would pose an “undue hardship” by causing “significant difficulty or expense” when considered in relation to the size, financial resources, nature, and structure of the business. Employers with over 50 employees have no such defense. 

It is too soon to tell how this provision will be enforced by the courts. Because these cases do not involve lost wages, it will be difficult to measure damages for those women who are denied lactation breaks. Even so, employees who are denied reasonable break time or private spaces for pumping can go to court to obtain injunctive relief, and they would be protected from retaliation for enforcing their rights under FLSA. Also, prevailing plaintiffs under FLSA have the right to recover attorney’s fees. 

City of Ann Arbor Prohibits Discrimination Against Nursing Mothers

In early 2006, the Ann Arbor City Council passed a revision to the Ann Arbor City Code that gives nursing mothers the right to breastfeed in public in the City of Ann Arbor. This law was passed in response to press coverage over an incident in December, 2005 where an Ann Arbor woman, Kelly Fuks, was told to stop breastfeeding her 6-month-old daughter at the local YMCA.

The City Code now provides that “No person shall prohibit a breastfeeding mother from or segregate a breastfeeding mother within any public accommodation where she and the child would otherwise be authorized to be.” Persons who are found to have violated this provision can be fined up to $500.00 per day. Also, any woman who is denied the right to breastfeed in a place of public accommodation has the right to bring a civil action against the person (or persons) who violated her rights. The City Code explicitly provides for the recovery of attorney’s fees, in addition to damages and injunctive relief.

Proposed Legislation Would Provide Similar Protection under ELCRA

Under Michigan law, municipalities are prohibited from criminalizing breastfeeding as a form of public nudity. In spite of this, there is no state law that prohibits discrimination against nursing mothers.The state legislature is considering a bill that could change this.

On October 14 2009, State Representative Rebekah Warren introduced House Bill 5515 which would amend the Elliott-Larsen Civil Rights Act to provide protection for nursing mothers. The proposed law would make it illegal to ask a woman to stop breastfeeding her infant in a place of public accommodation. In addition, it would make it illegal to deny equal enjoyment of goods and services to a woman because she was breastfeeding a child.

The bill passed the House Judiciary Committee on December 2, 2009, but it has not yet come up for a vote in the House.

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NachtLaw is pleased to share news of our growth
Posted by: David Blanchard
November 12, 2010

Nacht, Roumel, Salvatore, Blanchard & Walker, P.C., also known as "Nacht Law," welcomes Angela Walker and David Blanchard as newly elevated principals of the firm, joining firm founder David Nachtand Jennifer Salvatore. Nick Roumel also joins the firm as a principal, bringing 25 years of experience as a trial lawyer with a successful labor and employment practice. Attorney Ned Macey joins the firm as an associate after a trial court clerkship in the Federal District for Indiana and the Sixth Circuit Court of Appeals.

The firm's expansion was recently announced in the Washtenaw County Legal News as well.

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HP Lawsuit Relevant to Ann Arbor Tech Sector
Posted by: David Nacht
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
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: David Blanchard
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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