MICHIGAN Employment Law

Trusted compliance advice for Michigan employers Promotion HR SPECIALIST Think twice if your company relies on informal in-house recommendations to fill open positions. The courts look suspiciously on such networking promotions and land hard on employers who don t post job openings. According to the courts, you must consider each employee who may be eligible for, or even just interested in, the job. If you don t consider them even if they never approach you directly they can sue. Recent case: John Brennan, who MICHIGAN Employment Law March 2008 Special Issue Editor: Fred W. Batten, Esq., Clark Hill PLC, Detroit Don t post promotion opportunities? It s time to reconsider was over age 50, received mixed performance appraisals from the Tractor Supply Company. Brennan quit after he lost out on a promotion that the company never advertised. He sued, alleging he wasn t considered for the promotion because of his age. The court concluded that when an employer doesn t post openings, employees who might have applied can sue. Plus, the court wrote, the company has a duty to consider all who might reasonably be interested in a promotion were its availability made generally known. In the end, Tractor Supply showed it didn t discriminate based on age, and that the promoted employee was better qualified than Brennan. However, if it had posted the position, the company might have saved thousands of dollars in legal fees and hassle. (Brennan v. Tractor Supply Company, No. 05-6487, 6th Cir.) Tip: Post every job opening, along with the job description, minimum experience required, education requirements and application deadline. FMLA When it comes to collecting proof about an employee s FMLA medical leave, simple errors can cost your organization big bucks. One common mistake: Failing to give employees at least 15 calendar days to obtain the necessary medical certification to prove their need for FMLA leave. That same rule holds true in recertification cases if employees need to extend their FMLA leave. You must give workers at least 15 days from the date they ask for the extension. To verify those dates, send notice of FMLA requirements to employees in writing, preferably by certified mail. Avoid the simple mistakes that trigger FMLA lawsuits Include the deadlines and consequences for not meeting them. Establish a tickler system to track leave requests, your responses and certification paperwork. Follow the same procedure with every request. Recent case: After her surgery, Jackie Killian was granted FMLA leave until Dec. 10. The surgery led to complications, so she called on Dec. 4 to request an extension. A supervisor verbally approved the extension but asked for new medical certification. The company fired Killian on Dec. 10 (her original return date) because she hadn t returned to work and didn t provide the recertification form. She filed an FMLA suit, saying the company didn t give her 15 days to obtain the recertification form. The court agreed and awarded her $50,000. (Killian v. Yorozu Automotive, No. 04-6202, 6th Cir.) Free report How to Wipe Out Fraud and Abuse Under FMLA For an 11-step process to prevent fraud by employees inclined to work the system, read our free white paper, How to Wipe Out Fraud and Abuse Under FMLA, at www.thehrspecialist.com/whitepapers. In this issue Erase the legal risk of light-duty jobs................................. 2 Small change to job can be unfair labor practice........................ 3 Michigan s disabilities act and the federal ADA.......................... 6 The Mailbag: Your questions answered............................... 8 Michigan Employment Law is published by HR Specialist and edited by Fred W. Batten, an attorney with the Labor and Employment Practice Group at Clark Hill PLC in the firm s Detroit office. He has represented employers in the full spectrum of labor and employment law matters for more than 30 years. Contact: (313) 965-8804. (800) 433-0622 www.thehrspecialist.com/mi National Institute of Business Management

LEGAL BRIEFS Equal-opportunity cruelty is bad management, not bias When a manager acts rudely to all employees and treats everyone equally poorly, that s just meanness, not illegal job discrimination. To prove discrimination, employees must show that managers treated them differently due to some protected characteristic (e.g., age, race, gender, disability). As a new Michigan court ruling shows, if a supervisor doesn t distinguish among those he or she mistreats, no discrimination has taken place. Recent case: Karen Mayville, a white female, worked at Ford s assembly plant in Wayne. Her supervisor was a black female with a penchant for yelling and berating her subordinates. Mayville sued under the Michigan Civil Rights Act, claiming a sexually and racially hostile environment. The Michigan Court of Appeals tossed out her case, saying the black supervisor had not singled out one sex or one race for her harsh words. (Mayville v. Ford Motor Company, No. 267552, Court of Appeals of Michigan) Bottom line: It still makes sense to stop boorish behavior, whether it s technically discriminatory or not. Alert supervisors to legal risk of ADA associated-with claims The federal ADA makes it illegal to discriminate against employees or applicants because they associate with someone who is disabled. That means, for example, you can t refuse to hire applicants for fear of their disabled child s high health insurance costs. Most supervisors aren t aware of this law so, bring it to their attention. Case in point: A company required employees to work weekends during the holidays unless they had pre-approved leave. An employee who preferred to have weekends off to visit her disabled daughter in a nursing home took leave even though she didn t have approval. The company fired her and she filed an ADA associated with lawsuit. The company won because it could prove that it fired her for missing work, not because she might be absent due to her daughter s disability. (Overley v. Covenant Transport, No. 05-5280, 6th Cir.) 2 Michigan Employment Law March 2008 No federal law bans sexual-orientation discrimination, but watch out for local laws Federal law makes it illegal to discriminate against employees on the basis of race, national origin, sex, religion, age and disability. Michigan law also prohibits job discrimination based on height, weight, familial status or marital status. But no federal or state law says that you can t fire or refuse to hire someone just because he or she is gay. However, employers and supervisors should take note: That doesn t mean it s open season on homosexuals. For starters, same-sex sexual harassment is illegal, and it s often impossible to distinguish same-sex sexual harassment from sexualorientation harassment. Moreover, several Michigan cities prohibit discrimination based on sexual orientation in private employment (see box at right). The safest route: Establish a policy that bans same-sex harassment and any discrimination or harassment based on sexual orientation or gender roles. Recent case: After hospital security guard Christopher Vickers became friends with an openly gay doctor, Vickers claimed his co-workers and a Employers who use light-duty programs to cut workers compensation costs often make one big legal mistake: They apply their policies haphazardly, allowing some employees but not others to take light-duty jobs. That inconsistency is the fastest way to trigger discrimination lawsuits from employees who are turned down for those less-strenuous positions. One common trap: If you allow some employees with non-work-related injuries to return to light duty, you ll have to allow pregnant women a crack at those positions, too. That s because the Pregnancy Discrimination Act makes it illegal to discriminate on the basis of pregnancy. The following case shows why reserving light-duty jobs for workers comp supervisor began harassing him based on the assumption Vickers was gay, too. He filed a sex harassment suit, but the 6th Circuit Court tossed it out, saying sexual-orientation bias isn t illegal under federal law. The court said it s not illegal to harass a male homosexual who acts within established male stereotypes. But the court did come up with a long list of harassment and discrimination that would be illegal, such as telling a male worker that he should act less feminine. (Vickers v. Fairfield Medical Center, et al., No. 04-3776, 6th Cir.) Michigan cities that prohibit sexual-orientation job bias Ann Arbor Grand Rapids Detroit Ypsilanti Flint Note: Relates to private workplaces. An executive directive (No. 2003-24) does protect state employees from sexual-orientation bias. Source: www.lambdalegal.org. Have employees on light-duty jobs? Here s how to erase the legal risk cases may be the smartest legal move. Recent case: Three months into her job as a truck driver, Amanda Reeves got pregnant. Her doctor restricted her from lifting. Because Reeves job required heavy lifting, the company sent her home and eventually fired her because it had no work for her. Reeves had demanded one of the lightduty jobs reserved for employees on workers comp, but the company refused. She fired off a pregnancy discrimination lawsuit. The court tossed out her case. Reason: The company s light-duty policy was indisputably pregnancyblind. Only employees on workers comp could apply for light-duty jobs and the company applied the policy consistently. (Reeves v. Swift Transportation, No. 05-5271, 6th Cir.) (800) 433-0622

ADA Employees earn protection under the ADA if their physical or mental ailments substantially limit a major life activity, such as walking or working. Typically, obesity isn t considered a disability. However, the EEOC and the courts have long said the more serious condition of morbid obesity can qualify as a disability under the ADA. The EEOC says overweight people are disabled and, thus, due accommodations if they either have a weight problem brought on by a physiological problem (such as a hormonal imbalance) or they have a body weight more than 100% over the norm. But now a federal appeals court with Discrimination The Elliott-Larsen Civil Rights Act (ELCRA) protects Michigan employees from reverse discrimination: Employees who can show they were denied promotions or other opportunities because of their non-membership in a racial group can and do recover damages. The following case serves as a reminder that employment practices must be truly colorblind. Recent case: Kenneth Sciotti, who is a white male, worked as a file clerk for the city of Detroit and got two Unions If your organization s employees are unionized, you probably know not to make unilateral changes to employment policies without consulting the union. But take note: If you suddenly start enforcing long-ignored company policies soon after the union comes to town, you could bump up against the National Labor Relations Act s unfair labor practice rules. So, when in doubt, don t make even minor changes to work rules without the advice of experienced labor counsel. Recent case: Vanguard, a Michigan company that installs fire protection Overweight workers: Are they due ADA disability rights? jurisdiction over Michigan has challenged the EEOC stand and struck down the second test. The ruling will likely mean fewer overweight people will automatically be declared disabled. Recent case: A 450-pound truck driver, who never claimed that an underlying physical problem caused his weight gain, hurt his knee after breaking through a ladder. His employer blocked his return, saying his weight prevented him from doing his job. He filed an ADA suit, claiming his weight earned him accommodations as a disabled person. But the court said no, rejecting the notion that someone who is morbidly obese with no underlying Michigan s ELCRA covers reverse discrimination, too automatic promotions. Then his career stalled, even as he continued his education, earned the respect of his coworkers and supervisors, and sought out promotions in the probation department. Finally, he sued, alleging reverse discrimination. At trial, he showed that he was qualified for the promotions he applied for and that those promotions went almost exclusively to black candidates. In the 24 years that the probation department had existed, there was only one white probation supervisor. In addition, black candidates filled all of the supervisory positions that Sciotti applied for. A jury awarded Sciotti $424,000 in damages plus $148,000 in attorneys fees. The Court of Appeals of Michigan refused to overturn the decision. It concluded Sciotti had plenty of evidence of reverse discrimination. (Sciotti v. City of Detroit, No. 266160, Court of Appeals of Michigan) Even small change to job can be unfair labor practice equipment, was targeted for a union drive. When a 9-3 vote of its installers meant a union was a reality, the company began negotiations for a contract. But the trouble started when Vanguard began enforcing an existing policy that charges employees for cell phone overages. The union filed an unfair labor charge, alleging that the company can t make such unilateral changes to working conditions without notice to or bargaining with the union. The National Labor Relations Board (NLRB) agreed with the workers, physiological cause is disabled. Otherwise, any abnormality such as being very short, very thin or very tall would be a disability. (EEOC v. Watkins Motor Lines, No. 05-3218, 6th Cir.) Advice: The ADA protects not only people with actual disabilities but also those whom employers regard as having disabilities. Train supervisors not to make assumptions about an overweight person s ability to perform a job. Final note: Michigan employers face another problem: Unlike federal law, Michigan prohibits discrimination based on a person s height or weight. So, overweight plaintiffs in Michigan don t have to rely on the ADA. concluding that Vanguard was guilty of an unfair labor practice. The 6th Circuit Court of Appeals upheld the decision. (Vanguard Fire & Supply v. NLRB, No. 05-2497/2630, 6th Cir.) Final tip: Even if you re a nonunion workplace, educate yourself on unfair labor tactics. Today, more small and midsize employers are being targeted by unions, especially in states like Michigan where unions have historically fared well. Now that the union movement has gained new momentum, you must prepare for a possible union drive. www.thehrspecialist.com/mi March 2008 Michigan Employment Law 3

Pay for car-pooling time? Only if you require it NEW MEXICO A group of gas-rig employees always drove together in a pickup because the wells were in a remote location and had limited parking. During the drive, they often discussed work issues. They filed a Fair Labor Standards Act lawsuit demanding pay for that commute. But the court said No, noting that all workers were free to drive their own cars and spend their car-pooling time as they chose. So they weren t performing work. (Smith, et al., v. Aztec Well Services Company, 10th Cir.) Advice: Unless you mandate that employees travel together, it s unlikely that their travel time will be compensable work time. But if you insist that employees carpool or make certain work-related stops along the way, you ll pay. FMLA users can shop for a second opinion IOWA A company fired an employee for excessive absenteeism. She asked her doctor to certify that her absence was due to a chronic gastrointestinal disease (thereby qualifying her for FMLA leave). The doctor refused, as did a second doctor. A third doctor agreed to sign the FMLA certification. When the company refused to reinstate the woman, she filed an FMLA suit. The court let her case go to trial, saying FMLA regulations are silent about whether employees can approach multiple doctors to gain a signature on their FMLA form. (Cook v. Electrolux Home Products, 8th Cir.) Advice: You may not realize that employees can go window shopping for the best medical diagnosis. But you don t have to blindly accept the employee s word. You can seek a second (and, if necessary, a third) opinion on the seriousness of the condition. You can choose the doctor for the second opinion (although it must be one with whom you do not regularly contract). If the second opinion is in your favor, you and the employee must agree to a health provider for the third assessment. You must pay for both the second and third visits. 4 Michigan Employment Law March 2008 National Roundup STAFF Editor: Fred W. Batten, Esq., Clark Hill PLC, Detroit, (313) 965-8804 Contributing Editor: Anniken Davenport, Esq. Editorial Director: Patrick DiDomenico Senior Editor: John Wilcox, (703) 905-4506, jwilcox@nibm.net Copy Editors: Nancy Baldino, Cal Butera Publisher: Phillip Ash Production Editor: Dan Royer Production Assistant: Nancy Asman Marketing Directors: Adam Goldstein, Linda Smith Customer Service: (800) 433-0622, customer@nibm.net HR Specialist: Michigan Employment Law (ISSN 1934-158X) is published monthly by the National Institute of Business Management Inc., 7600A Leesburg Pike, West Building, Suite 300, Falls Church, VA 22043-2004, (800) 433-0622, www.nibm.net. Annual subscription price: $299. 2008, National Institute of Business Management. All rights reserved. Duplication in any form, including photocopying or electronic reproduction, without permission is strictly prohibited and is subject to legal action. For permission to photocopy or use material electronically from HR Specialist: Michigan Employment Law, please visit www.copyright.com or contact the Copyright Clearance Center Inc., 222 Rosewood Dr., Danvers, MA. 01923, (978) 750-8400. Fax: (978) 646-8600. This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal service. If you require legal advice, please seek the services of an attorney. Compliance lessons from other states Ethnic name isn t a head-start to bias claim MISSOURI Mohammed Hussein, who was born in Fiji, worked as a pilot during the Sept. 11 attacks. When flights were grounded, Hussein went to his hotel s bar and allegedly hoisted a toast when the television showed the collapsing Twin Towers. The airline fired him for breaking the no drinking while in uniform rule. He sued, arguing that his name triggered the firing. The court disagreed, saying it takes more than a name to infer that an employer would fire someone based on prejudice. Employees must show some level of discriminatory intent, action or motive by the employer. (EEOC v. Trans States Airlines, 8th Cir.) Advice: Employees whose names people associate with a particular religion, origin or ethnicity can t automatically claim that their name led to discrimination. If that were the case, anyone with such a name would have a leg up on other employees in every discrimination case. Returning soldiers are NOT at-will employees VIRGINIA Soon after Cheryl Francis, a military reservist, returned to work after a military deployment, her employer fired her for tardiness and rudeness. She filed a lawsuit under the Uniformed Services Employment and Reemployment Rights Act (USERRA), alleging the company didn t have just cause for its actions. The appeals court disagreed, concluding that the firing reasons rose to the level of just cause. (Francis v. Booz Allen Hamilton, 4th Cir.) Advice: If you plan to terminate an employee who recently returned from military duty, you need a clear, businessbased reason for your action. USERRA says you can t fall back on at-will status as a firing reason. For how long? USERRA says returning soldiers who are gone more than 180 days receive this extra protection for one year. Those gone for 30 to 180 days are given six months worth of extra protection. HR SPECIALIST Trusted compliance advice for Michigan employers Editor: Fred W. Batten, Esq., Clark Hill PLC, Detroit Wages Y ADA Overweight workers: Are they due ADA disability rights? Yes, I want to begin my subscription to Michigan Employment Law for only $179 per year (nearly 40% off the normal price). Name Company Address City, State, ZIP Phone E-mail E mployees earn protection under the jurisdiction over Michigan has challenged the EEOC stand and struck down ADA if their physical or mental ailments substantially limit a major life the second test. The ruling will likely activity, such as walking or working. mean fewer overweight people will automatically be declared disabled. driver, who never claimed that an underlying physical problem caused his weight gain, hurt his knee after breaking through a ladder. His employer blocked his return, saying his weight prevented him from doing his job. He filed an ADA suit, claiming his weight earned him job accommodations as a disabled person. But the court tossed out the case, rejecting the notion that someone who is morbidly obese with Typically, obesity isn t considered a disability. However, the EEOC and courts have long said the more serious condition of morbid obesity can qualify as a disability under the ADA. The EEOC says overweight people are disabled and, thus, due accommodations if they either have a weight problem brought on by a physiological problem (such as a hormonal imbalance) or they have a body weight more than 100 percent over the norm. But now a federal appeals court with In this issue MICHIGAN Employment Law Recent case: A 450-pound truck Erase the legal risk of light-duty jobs................................. 2 Avoid the simple mistakes that trigger FMLA lawsuits.................... 3 Michigan s SSN Privacy Act: Are you in compliance?..................... 6 The Mailbag: Your questions answered............................... 8 March 2007 Special Issue Don t punish employees for pay-related complaints ou may not like employees comparing their paychecks with co-workers ees or nonemployees. Plus, the federal and wanted all extra hours pre-approved. their pay with others, whether employ- Turner he didn t want to pay overtime or complaining to management about National Labor Relations Act (NLRA) Several months later, the practice overtime pay, but don t try to silence makes it illegal to ban or punish fired Turner. She sued, claiming her such comments or punish workers for employee discussions of working conditions, pay, benefits and promotions. up for her right to overtime, a right she discharge was retaliation for standing such actions. While most employees in Michigan That law applies to every U.S. workplace, unionized or not. In Michigan, The Michigan Court of Appeals said was protected by Michigan law. are at-will workers, meaning they can be fired for any nondiscriminatory employees also can t be disciplined for agreed that an employee fired for demanding overtime pay could sue despite reason, employees fired for complaining about pay practices can sue you for public policy of the state. her at-will status. In this case, however, reasons that would be contrary to the retaliation. the court found that the dental practice The Michigan Payment of Wages and office administrator, got in a heated argument with the practice s owners over ner v. Munk, et al., No. 270532, Court terminated her for other reasons. (Tur- Fringe Benefits Act makes it illegal to prohibit employees from discussing overtime pay. One of the dentists told of Appeals of Michigan, 2006) Recent case: Laura Turner, a dental no underlying physiological cause is disabled. Otherwise, any abnormality such as being short, very thin or very tall would be a disability. (EEOC v. Watkins Motor Lines, No. 05-3218, 6 th Cir.) Advice: The ADA protects not only people with actual disabilities, but also those who employers regard as having disabilities. Train supervisors not to make assumptions about an overweight person s ability to perform a job. Make sure you associate weight-related requirements to essential job functions. Final note: If a morbidly obese employee develops other problems, such as heart trouble, those conditions may be disabilities, even if the obesity is not. Michigan Employment Law is published by The HR Specialist and edited by Fred W. Batten, an attorney with the Labor and Employment Practice Group at Clark Hill PLC in the firm s Detroit office. He has represented employers in the full spectrum of labor and employment law matters for more than 30 years. Contact: (313) 965-8804. (800) 543-2055 www.thehrspecialist.com/mi National Institute of Business Management Payment Method: Credit card Visa/MC AMEX Discover Fax this coupon to (570) 567-0166 Card # Exp. date Signature Check/money order Mail to: Michigan Employment Law, Bill me P.O. Box 906, Williamsport, PA 17703-0906 Contact our Customer Service Center at (800) 433-0622 or customer@nibm.net. MI6827 (800) 433-0622

Employment Law News No disability discrimination if worker isn t qualified for job A hospital secretary, who suffered chronic arm pain after puncturing her thumb with a contaminated pin, recently lost her disability-discrimination lawsuit. During the employee s leave of absence, William Beaumont Hospital in Royal Oak filled her position and gave her 60 days to find a new job. She wasn t qualified for the other jobs she applied for, so the hospital terminated her. She filed a disability-discrimination claim, but the court ruled that she didn t suffer discrimination because she wasn t qualified for any available jobs. Benchmark your health benefits with other Michigan employers Wondering how your health care benefits measure up against those of other Michigan employers? Find out by participating in McGraw Wentworth s 2008 Mid-Market Group Benefits Survey. Participating employers will be given access to local data, including the effectiveness of cost-control strategies, such as higher deductibles, higher co-pays for prescriptions and office visits, health savings accounts, spousal surcharges and wellness initiatives. Participation is free, and all information is confidential. To register, visit www.mcgrawwentworth.com. New limits on affirmative action needn t affect your diversity effort Michigan residents last fall voted to restrict affirmative action by approving a state constitutional amendment. It disallows preferential treatment based on race, gender, ethnicity or national origin for public entities in the hiring and contract decisions of programs run by public institutions. Universities and governmental entities can t award extra points to members of these protected groups in admissions, hiring or contract award decisions. Additionally, programs may not dedicate more resources to seeking minority or women applicants than to any other group. Essentially, the amendment makes equitable hiring and contracting mandatory, but doesn t allow special efforts to recruit members of protected groups. Note: Nothing in this amendment affects private employers rights to have diversity initiatives or to conduct outreach to women and minority populations. But no good deed goes unpunished: More employees who are adversely affected by an employer s affirmative action program are filing reverse-discrimination cases. (Michigan state law and federal law bar employers from discriminating based on race or gender.) After cleaning out his desk, he cleaned out company data, too A disgruntled former information technology (IT) worker for Pentastar Aviation in Waterford hacked into the company s systems and deleted sensitive employee data, causing $34,000 in damages. He s now facing criminal charges. The man announced that he was resigning and gave two weeks notice to Pentastar. But two days later, the company told him not to return. Pentastar offered to pay him for the final two weeks if he would sign a separation agreement, but he refused. Instead, he accessed the company s systems from his home computer and dumped the data. The FBI quickly traced the activity to the wireless networks serving the man s apartment, and charged him with computer intrusion. Final tip: When releasing any employee who has computer access particularly disgruntled IT employees change all your system s passwords immediately. Union protests prison guard s firing in stripping-for-pie prank Two Lenawee County prison guards were fired late last year after they goaded an inmate into stripping and running naked through the prison in exchange for a piece of cherry pie. In what the guards called a prank, they allowed the prisoner out of his cell to run nude through the cellblock. The prison guards union has protested the firing, saying that the punishment was too severe. Advice: Remind supervisors to never allow employees to become Heed Michigan law that requires breaks for young employees Federal law doesn t require organizations to offer lunch breaks or coffee breaks to their employees, but Michigan law is a different story. State law says that employees under age 18 can t work more than five continuous hours without being given a 30-minute uninterrupted rest period, according to Michigan s Department of Labor & Economic Growth (www. michigan.gov/dleg). The state does not mandate requirements for breaks, meals or rest periods for employees over 18. Note: While federal and state laws don t require breaks for adults, the federal law does say that when you offer short breaks of less than 20 minutes, that time is considered work time and must be paid. You generally don t need to pay employees for bona fide meal periods (typically lasting 30 minutes or more). During unpaid breaks, employees must be completely relieved of work duties. If, for example, you require an assistant to eat lunch at her desk in case a call comes in, she must be paid because she hasn t been fully relieved of her duties. drunk with their own power. Everyone in the workplace must be accountable for his or her actions. Make sure employees know which supervisors should receive harassment or discrimination complaints. And keep lines of communication open so employees feel comfortable bringing their complaints to you, rather than a jury. Sort out complex health care laws using new online tool The U.S. Labor Department recently unveiled an interactive web site to help guide employers through the maze of federal health benefit laws. Find the Health Benefit Advisor at www.dol. gov/elaws/ebsa/health. Using a guided Q&A format, the site provides guidance on COBRA, the Health Insurance Portability and Accountability Act, the Mental Health Parity Act and other such laws affecting employers and employees. www.thehrspecialist.com/mi March 2008 Michigan Employment Law 5

In the Spotlight Michigan employers must comply with Michigan s Persons with Disabilities Civil Rights Act (PWDCRA) and the federal ADA. Both laws prohibit employers from discharging or otherwise discriminating against an individual because of a disability that is unrelated to the individual s ability to perform the duties of a particular job. Although the laws are similar, employers need to understand the differences. The PWDCRA applies to all Michigan employers with at least one employee and includes the agent of such a person. This definition is broader than the ADA s definition of a covered entity, which applies to organizations with 15 or more employees. Disability definitions The two laws carry slightly different definitions of disability. Under the PWDCRA, an employee is disabled if he or she: A. Has a determinable physical or mental characteristic which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic substantially limits one or more of the major life activities of that individual and is unrelated to the individual s ability to perform the duties of a particular job or position, or is unrelated to the individual s qualifications for employment or promotion B. Has a history of a determinable physical or mental characteristic 6 Michigan Employment Law March 2008 by Fred W. Batten, Esq., Clark Hill PLC, Detroit Michigan disabilities act and the ADA: Know the important differences PWDCRA accommodation cost caps No. of employees Maximum required accommodation cost 0-3 The state average weekly wage ($803.17 in 2007) 4-14 1.5 times the state average weekly wage 15-24 2.5 times the state average weekly wage 25 or more On a case-by-case basis described in paragraph A C. Is regarded as having a determinable physical or mental characteristic described in paragraph A. In contrast, the ADA defines a person as disabled if he or she: A. Has a physical or mental impairment that substantially limits one or more of the major life activities B. Has a record of such impairment C. Is regarded as impaired. Reasonable accommodation The PWDCRA limits how much money an employer must spend to reasonably accommodate an employee s disability (see box, below left). Michigan employers with 15-24 employees can use 2.5 times the state average weekly wage to defend against PWDCRA accommodation requests, but also must meet the more nebulous federal standard as well. (Employers with 15 or more employees must comply with both the PWDCRA and the ADA.) Under the ADA, the employer can avoid having to provide reasonable accommodations only if it can show that the accommodation would create an undue hardship. Although the definition of undue hardship is murky, employers can use the vagueness to create some wiggle room. ADA accommodation costs can be calculated rather broadly to include the cost of workplace disruption, pay to other workers to perform essential functions normally required of the disabled person and other miscellaneous costs in other words, the total difference between the employer s cost without accommodating the worker and the costs with accommodation. Other key differences Procedures Under the ADA, an employee must file a charge with the federal EEOC and receive a notice of right to sue before he or she can file a lawsuit. Once the commission issues a notice of right to sue, an employee has 90 days to file a lawsuit in federal court. Under the PWDCRA, an employee can directly file a lawsuit in a Michigan court or can proceed by filing a claim with the Michigan Department of Civil Rights. An employee has three years to initiate a claim under the PWDCRA. Written notice Unlike the ADA, the PWDCRA requires an employee to give written notice of his or her need for a reasonable accommodation. Genetic testing Unlike the ADA, the PWDCRA prohibits an employer from refusing to hire, recruit, promote or discharge an individual because of genetic information that is unrelated to the individual s ability to perform the duties of a particular job. The PWDCRA also prohibits an employer from requiring an individual to submit to a genetic test or to provide genetic information as a condition of employment or promotion. Penalties Under the PWDCRA, an individual may bring a claim for injunctive relief and monetary damages, including reasonable attorneys fees. The ADA permits an individual to recover compensatory damages, injunctive relief, reinstatement, back pay and other equitable relief the court deems appropriate. The prevailing party, except for the EEOC and the United States, may be entitled to reasonable attorneys fees. Unlike the PWDCRA, the ADA caps compensatory and punitive damages. Punitive damages cannot be recovered under the PWDCRA, but there is no cap on compensatory damages. Prudent employer practices To comply with both the PWDCRA and the ADA, employers should: Update job descriptions to reflect the essential functions of each position. Engage in an interactive communications process with employees who request reasonable accommodations to perform essential job functions. When feasible, an employee s suggestion for a possible accommodation should be used. Document all requests for accommodation and provide the employee with a written response to the requested accommodation. (800) 433-0622

Nuts & Bolts FMLA certification: Collect medical-leave proof the right way THE LAW The federal Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks unpaid, job-protected leave each year for their own serious health condition, or to care for a parent, spouse or child with a serious condition. To help determine whether an ailment rises to the level of a serious condition, you can require employees to provide an FMLA medical certification. Essentially, that s a doctor s note that lays out the facts of the ailment, how long it s likely to last and more. (To obtain a sample form, see the box below.) In certain cases, you can ask for recertification to verify that the person continues to need FMLA leave. The law doesn t require employers to obtain medical certification from employees who take FMLA leave. In fact, you can choose to ask for it in certain situations but not others. Still, it s best to set a consistent practice regarding when you require FMLA medical certifications and to treat all employees seeking leave in the same way. (Note: You can t require employees to provide medical certification for FMLA leave taken to care for a newborn or adopted child.) WHAT S NEW In recent years, employers have faced a growing problem of FMLA fraud. While employees are legally allowed to take FMLA leave in small bites (a day or even an hour or two), employees are increasingly using intermittent FMLA leave in Online resources FMLA Certification Download a sample medical certification form (Form WH-0380) from the U.S. Labor Department at www.dol.gov/esa/ regs/compliance/whd/fmla/wh380.pdf. (Using the form is optional, but it s a good idea to ensure compliance.) Access free white papers from Michigan Employment Law, including How to Wipe Out Fraud and Abuse Under FMLA, at www.thehrspecialist.com/ whitepapers. a noticeable pattern of Friday and Monday absences. Can you ask for FMLA recertification when you notice such patterns? Thankfully, yes, according to a U.S. Labor Department opinion letter. The FMLA lets you request recertification on a reasonable basis. If no minimum time is specified on the medical certification form, you can typically request recertification no more than once every 30 days, and only in connection with an employee s absence. But if you receive information that makes you suspect FMLA-leave abuse, you can ask for recertification more frequently than every 30 days. Fortunately, the Labor Department letter said that a pattern of Friday/Monday absences counts as information that casts doubt upon the employee s stated reason for the absence. That means you can seek recertification more frequently than every 30 days, so long as the request is made in connection with an absence. HOW TO COMPLY Your medical certification request must relate only to the serious health condition that s causing the current need for leave. In other words, you can t ask for information about the employee s general health or any other medical conditions. You should ask when the serious health condition began, its likely duration, appropriate medical facts regarding the condition, whether there s a need for intermittent leave and a statement that the employee is unable to work (see box, above right). After you request certification, you must give employees at least 15 calendar days to submit the paperwork to you. While it s not your responsibility to hound employees to submit the certification on time, courts will frown on companies that deny FMLA leave simply because the employee submitted the certification form on the 16th day. So, if an employee s certification is missing or lacking information, notify him or her of the problem and give the person a reasonable amount of time to FMLA medical certification: What can you request? Employee s name Patient s name (if other than employee) Type of serious health condition Medical facts supporting certification Date the serious health condition began Likely duration Facts concerning the need for reduced/ intermittent leave Regimen of treatment Whether the employee can perform work of any kind or is unable to perform any one or more of the essential functions of his or her job If the FMLA leave is for a relative with a serious condition, whether the employee will provide direct care or psychological comfort Signature of health care provider and date Signature of employee and date correct it. If the employee never provides the certification, you can deny the request. If you doubt the need for leave, you have the right to investigate the medical certification. For example, a health care provider representing your company can call the employee s physician to clarify and confirm the medical certification (if the employee gives you permission). But you can t request additional information from the health care provider. If you re still not convinced, you also can require and pay for a second opinion. You can use an independent doctor that you select, but the person can t regularly work for your company. If the two opinions conflict, you can pay for a third and final binding medical opinion. You and the employee must agree on the third provider. Next Nuts & Bolts: Personnel files Coming soon: Attendance policies www.thehrspecialist.com/mi March 2008 Michigan Employment Law 7

The Mailbag You can require participation in investigations QOur company is investigating an altercation between two employees. Several people witnessed the fight, but they do not want to get involved. Can we require employees to give us a statement as to what they saw? J.L. AYes. Employees can be compelled to cooperate in company investigations, and it is appropriate to discipline employees who refuse to cooperate. This is true whether your work force is union or nonunion. Sometimes, employees will request another employee to represent them in the investigation, particularly in a union facility. The general rule is that you don t have to allow an employee to be represented in an investigation so long as the employee being interviewed is not himself a subject of the investigation. (If you have a union contract, make sure it doesn t say that employees have a right to a union representative whenever they want.) Obviously, it may be difficult to prove whether they saw anything or not, but employees can t just decline to participate in your investigation because they don t want to get involved. Paying for uniform change not typically required QWe provide our employees with uniforms so that they don t have to get their clothes dirty at work. Most employees come to work early and change and, after work, they change back into their street clothes. Our employees generally appreciate that they can change clothes at work, but a few say that we have to pay them for the time. Any advice? L.V. ADon t pay them. Tell the malcontents that they don t have to change at work. If you don t require that they wear your uniforms, they can get their own clothes dirty. Even if you do require that they wear uniforms, the law doesn t require that you pay employees for time spent changing clothes at work, so long as putting on the clothes is not a principal activity in their job. Putting on special safety clothes required for the job would be a special circumstance requiring that changing time would have to be paid. But if the only special clothes are steel shoes or safety glasses, you only have to pay them when they actually start working. Don t inquire into who filed NLRB complaints QOne of our union employees filed a National Labor Relations Board(NLRB) complaint about changes in our work rules. The employee misunderstood the change, so we wanted to identify the employee and explain the rule. The situation seems to have gotten worse. Another charge has been filed saying that we re coercing employees because we asked who filed the charge. Can t we talk to our employees? B.R. AThe National Labor Relations Act makes it illegal to coerce employees in the exercise of rights protected by 8 Michigan Employment Law March 2008 by Fred W. Batten, Clark Hill PLC, Detroit the act. Filing a charge is a protected activity, no matter how frivolous the charge or even if the charging party misunderstood your rule change. By asking who filed the first charge, the NLRB is saying that you are coercing employees who would file charges. Instead of asking who filed the charges, you might want to schedule an all-employee meeting and go over your rule change to make sure that it is understood by all. Fix I-9 mistakes; don t ignore old errors QI just began working in this company s HR department. During my document review, I discovered that some employees I-9 forms don t have dates or signatures. Can I go back to employees and redo the forms, collecting current documentation? J.M. AIt is extremely important that you have a correct signedand-dated Form I-9 for each employee. But you shouldn t ask an employee to make changes to an existing I-9 form. Instead, when you discover an undated or unsigned form during your review, simply have that employee complete a new form and produce the appropriate supporting documentation. Make a note in the file of when and why you re updating the I-9. Also, make sure you re consistent in repairing the problems on all I-9s. Asking only certain employees for new documentation could spark a discrimination claim. Docking pay for time-clock mistakes: not wise QWe dock employees pay by 15 minutes if they don t punch in or out on their timecards. We ve recently been advised that we shouldn t have such a policy. Is that correct? If so, how can we make sure employees punch in? K.K. ARewrite your policy as soon as possible. You can t dock employees for failing to punch a timecard. Federal law requires you to pay employees for all the time they work, even if they fail to properly record that time. But that doesn t mean you should ignore the problem. Instead, turn to your progressive-discipline policy. Example: Provide warnings for the first and second offenses, suspension for the third offense and termination for the fourth. Fred W. Batten is an attorney with the Labor and Employment Practice Group of Clark Hill PLC (Detroit Birmingham Lansing Grand Rapids). He has represented employers in the full spectrum of labor and employment matters for more than 30 years. You can contact him at (313) 965-8804 or fbatten@clarkhill.com. To submit your question to The Mailbag, e-mail it to HRMIeditor@NIBM.net. (800) 433-0622 HRMI-SIS-003

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