Labor & Employment

Bringing Employees Back to Work

The maximum unemployment benefit in Michigan is traditionally $362. However, the CARES Act provides an additional federal benefit of $600. That means a laid-off employee makes up to $962 on unemployment — an average of about $24 per hour. Many employees are afraid to go back to work as it is, and the expansion in unemployment, for many workers, provides a disincentive to get back to work. Here’s some things to remember when trying to entice your employees back to work.

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Fausone Bohn, LLP Releases Free Webinar for Business and HR Leaders

I was recently joined by John Walsh, President and CEO of the Michigan Manufacturers Association, for a free webinar for business and HR leaders on reopening and operating during a global health pandemic.

If you missed the webinar, you’re in luck because you can catch it here!

If you found this information valuable, please subscribe to the Fausone Bohn YouTube channel. We have attorneys that practice in niche areas of law including labor and employment law, municipal law, land-use planning and property development, environmental law, corporate and commercial law, and much more.

Please remember that the law surrounding this global health pandemic is changing constantly. Since the recording of this webinar the Governor issued about an additional 20 Executive Orders. Therefore, this webinar should not be relied on other than as background information.

If you need help figuring out how to trek through the quagmire of federal, state, and local regulations during this time, please contact me for assistance. I can be reached by call/text to (734) 956-0113 or email at bgrysko@fb-firm.com.

 

 

Reopening and Interim Operations

As Michigan begins to reopen its economy, businesses should be aware of policies and procedures to follow as they resume operations. This article is the third in a series exploring the theme Staffing Your Business During a Global Health Pandemic.

Governor Whitmer appears to be following a phased approach to allowing businesses to resume operations. Businesses should carefully consider what reopening looks like for them and how the ongoing pandemic can continue to impact business and employment decisions.

Webinar Registration

Looking for more info? Join us May 14, 2020 at 11am for an educational webinar exploring policies and practices for businesses during these troubled times!

Michigan’s Stay Home, Stay Safe Order has been rescinded and replaced several times (EOs 2020-21, 42, 59, 70, and 77) since the Governor initially declared a state of emergency. A subsequent version of the order, introduced the concept of the “COVID-19 Preparedness Response Plan” and other policy considerations. Here are some of the basics to get you started:

1. COVID-19 Preparedness Response Plan.

The Order links to a lengthy guidance document on workplace risk assessment from OSHA. Businesses should be prepared to categorize their workers according to the 4 levels of risk and to implement the appropriate safety measures: 

Low Risk Exposure jobs are those that do not require contact with people known to be, or suspected of being, infected with COVID-19 nor frequent close contact with (i.e., within 6 feet of) the general public. 

Medium Risk Exposure jobs include those that require frequent and/or close contact with (i.e., within 6 feet of) people who may be infected with COVID-19, but who are not known or suspected COVID-19 patients.

High Risk Exposure jobs are those with high potential for exposure to known or suspected sources of COVID-19. Workers in this category include healthcare workers, EMS, and others that are exposed to known or suspected COVID-19 patients.

Very High Risk Exposure jobs are those with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures. This category will include professionals that handle aeorsol-generating procedures, like intubation, on known or suspected COVID-19 patients. 

Each business should make this assessment for itself; however, it is likely that many small businesses will fall into the low-risk or medium-risk categories. All workplaces should consider these basic precautions:

  • promote frequent and thorough hand washing,
  • increase standards for facility cleaning,
  • encouraging sick employees to stay home,
  • encourage employees to cover up their sneezes/coughs,
  • practice safe social distancing, and
  • other common-sense precautions identified by public health and safety authorities.

But you should also check OSHA guidance to see what other precautions may be appropriate for your type of operations. 

2. Evaluate Staffing and Employment Policies

If and when the Governor allows business activities to resume, the novel coronavirus will not have simply disappeared. Rather, employers, employees, customers, and other workplace visitors will have to remain on guard to decrease the risk of transmitting COVID-19.

The current Stay Home order requires employers to “promote remote work to the fullest extent possible.” The order provides no further direction, which means that it will be up to each employer to determine to what extent, if at all, it is “possible” for employees to work from home. 

For those operations where in-person work is required, employers may consider limited staffing arrangements or alternative work hours in order to decrease the concentration of employees in the workspace at the same time.

This is also a good opportunity for employers to dust off their employee handbooks and policy manuals. With remote work and limited staffing, it will be critical to have solid policies in place so that both workers and management are aware of procedures and expectations. Businesses should look especially carefully at policies related to working from home, reporting hours worked and overtime, company-owned property policies, and leave time policies. 

3. Other Federal, State, and Local Guidelines

Businesses should check with their local public health officials, some of whom have their own emergency public health orders in effect that businesses must comply with. For example, the Wayne County Department of Health, Human & Veterans Services issued order #20-02, which requires employers to implement daily screening procedures for their employees. In Wayne County, employees displaying COVID symptoms may not return to work until 7 days have passed since symptoms first appeared and must also be fever-free for 3 days with improvement in respiratory symptoms. 

Businesses should also check in regularly with the CDC to see current information on Interim Guidance for Businesses and Employers.Additionally, Section 11 of EO 2020-77 has additional criteria that all businesses should consider. There are specific requirements applicable to those in certain industries, such as construction and manufacturing. 

Please keep in mind, the Governor declared a state of emergency on March 10, 2020  with EO 2020-4. At the time this is being written, there are  77 executive orders. In other words, over a 58-day period, the Governor issued an average of more than one order per day. This is an extremely rapidly evolving and dynamic area of law. Businesses should evaluate their legal responsibilities and compliance requirements on a daily basis. 

If you have questions about Michigan’s myriad of ambiguous Executive Orders, contact a business attorney with experience guiding businesses and individuals through this pandemic. You can reach me by email at bgrysko@fb-firm.com or call/text at (734) 956-0113.

P.S. Check out my video explaining some aspects of EO 2020-59. But note that within two weeks of EO 2020-59, the Governor replaced it TWICE with EOs 2020-70 and 2020-77 to allow construction, certain real estate-related businesses, and manufacturers, and others to resume. Information is changing DAILY so continue to check in and contact me with any questions.

Unpacking Leave Requirements Under the FFCRA

Welcome to the second installment discussing the theme Staffing Your Business During a Global Health Pandemic. The Families First Coronavirus Response Act (FFCRA) requires employers to provide paid leave to employees suffering from certain COVID-19 related circumstances. However, employers and employees alike have struggled to implement the paid leave requirements. This article will provide some practical guidance in areas where businesses are struggling.

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Breaking Down the Paycheck Protection Program

This is the first in a multi-part blog series discussing the theme Staffing Your Business During a Global Health Pandemic. Many businesses are in distress due to the economic downturn brought on by the broad government-mandated closure of “non-essential” businesses. You may have heard by now about various programs that federal and state governments are in the process of rolling out. This article discusses some of the basics of the federally funded Paycheck Protection Program, available to most small businesses and self-employed individuals. 

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What to do Before the Wage and Hour Division Comes Knocking

This letter is to inform you of the Wage and Hour Division’s plan to visit your establishment…

Many employers receive letters that begin just like this from the Wage and Hour Division (WHD) of the U.S. Department of Labor. The WHD investigates to make sure employers are meeting their obligations under the Fair Labor Standards Act (FLSA), which is the law responsible for the federal minimum wage and federal overtime rules. Here’s what you need to know (and steps you should consider) before the WHD comes knocking.

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Brandon Grysko Returns to Madonna U During ‘Arctic Blast’ as Guest Speaker

I returned  to my alma mater again this year to deliver a repeat performance on the principles of negligence to a Higher Education Law and Public Policy class. Hopefully the students enjoyed the assignment as much as I did.

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Recent NLRB Rulings and What They Mean for Employers

The National Labor Relations Board (NLRB)  is in charge of enforcing the National Labor Relations Act (the Act), the primary law regulating U.S. labor-management relations.  Although many newsworthy NLRB decisions have been favorable to management, there are potential pitfalls. Here’s a summary of the most impactful decisions over the last few months and what employers, managers, and front-line supervisors should take away from them:

UPMC: Employers Can Restrict Union Access to Public Areas

06/14/2019

In a win for employers, the NLRB held that an employer can eject non-employee union activists even from areas of its property that are open to the public.

An employer generally is the master of its property, with the right to allow or eject anyone it wants to from the property. Over the years, NLRB precedent created a “public space” exception– areas of the employer’s property open to the public had to be open to the union. The UPMC decision overruled that precedent, giving employers more latitude to regulate who can enter public areas of the workplace.

The takeaway? Use caution! Although employers generally have the right to eject non-employee union agents from their premises, there are notable exceptions that could still get you into trouble.

Prime Healthcare: Employer Forced to Rescind Arbitration Agreements

06/18/2019

In a pro-employee decision, the NLRB forced an employer to rescind arbitration agreements with its past and current employees.

Employers cannot have a policy on the books that would interfere with an employee’s rights under the National Labor Relations Act. 29 USC § 158(a)(1); Boeing Co., 365 NLRB No. 154 (2017). 

In Prime Healthcare, the employer’s arbitration agreement required that all claims– with limited exceptions for things like workers’ compensation and unemployment– had to be brought in arbitration.

If all claims have to be filed in arbitration, then, the Board reasoned, an employee may reasonably believe that he or she would be unable to file charges with the NLRB for unfair labor practices.  There was no legitimate justification for such broad language.

The takeaway? Have your arbitration agreements and employment contracts reviewed periodically. Even non-unionzed workers have protections under the NLRA that you need to be mindful of.

Velox Express: Misclassifying Workers is not a Violation of the NLRA

8/29/2019

In this employer-friendly decision, the NLRB held that incorrectly classifying workers as independent contractors is not in itself a violation of the Act.

The protections of the NLRA generally only apply to non-supervisory employees. Supervisors and independent contractors do not have protections under the Act. However, the Board found that an employer’s communication to its employees of its opinion of their classification is not, without more, a separate and distinct unfair labor practice.

The takeaway? Don’t let this decision lull you into a false sense of security. Many independent contractor classifications are incorrect. As an employer, you could run into problems with the National Labor Relations Act, the Fair Labor Standards Act, state workers’ compensation and unemployment laws, and more. These sorts of violations can have severe impacts on a business’s bottom line.

Kroger Mid Atlantic: Employers Can Ban Union from Conducting Protest Activities Onsite

09/06/2019

In another pro-management opinion, the NLRB held that non-employee activists could be barred from an employer’s property, even when other civic, charitable, and promotional groups are allowed onsite.

In this situation, a non-employee union agent was at a Kroger trying to stir the pot–he was soliciting a customer boycott to bring attention to employment conditions.

Nothing in the NLRA demands that employers grant non-employee union members access to their property. However, the Board previously held that emploers had to allow union activists on the property if other non-union groups were allowed onsite for civic, charitable, and promotional activities. See Sandusky Mall Co., 329 NLRB 618 (1999).

However, in Kroger, the Board explained that the “non-discrimination” exception has to be analyzed in the context of the type of activity conducted. For example, the girl scouts can come sell cookies, but that shouldn’t mean a union rep can come and solicit a customer boycott!

The takeaway? Your legal and labor relations team may be up to speed on various labor laws. However, it’s your front-line supervisors that will often be called upon to make these decisions. It’s important to undergo periodic training so they understand both union and management rights.

Conclusion

Despite the overall trend in favor of employers a couple things bear repeating:

First, you need to make sure your front-line supervisors and managers are up to speed on management rights. Second, it’s critical that you have your employee policies, contracts, and arbitration agreements periodically assessed for compliance with steadily shifting labor laws. Lastly, and most importantly, do not forget that employees are often still protected under the NLRA, even if there’s no union in your workplace!

Whether your workforce is unionized or not, please contact me with any questions or comments you have about this post. Did I miss any big cases? Let me know by clicking here.

Can an Employee be Disciplined for Social Media Posts?

May 6, 2019

These days, keyboard warriors are taking to social media to dispense their own brands of internet justice. Most of the time, this practice is highly annoying but otherwise pretty harmless… Until a social-media shenanigan crosses the line, which can result in unintended consequences, even problems at work. In the digital age, where social justice is at our fingertips, employers and employees should understand their rights (or lack of) with respect to social media usage.

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Forum for Employers in an Era of Recreational Marijuana

April 10, 2019
I had the honor of addressing a large group for the Livonia Chamber of Commerce event, “Forum for Employers in an Era of Recreational Marijuana.” As an added bonus, WWJ Radio did an exclusive interview with the panelists, which aired shortly after the event.

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