Return to Work Issues under the Family Medical Leave Act

Issue:

An employee has provided a Return to Work Authorization Form from their physician following approved leave pursuant to the Family and Medical Leave Act (FMLA).  FMLA requires the employee to return to their original position.

Question:

Can the employer require the employee to take additional medical and/or work functionality tests before reinstating the employee to their original position? as a condition of restoring employees whose need for leave under the FMLA arose from their own serious health condition.

General Rule:

Employers may require an employee to obtain and present a Fitness-for-Duty Certification from the employee’s health care provider stating the employee is able to resume work.  The need for such certification is to be communicated to the employee at the time notice of eligibility for FMLA leave is given.

Additionally, the employer must have a uniformly-applied policy for all similarly-situated employees.  As a general rule, the certification needs only to be a simple statement that the employee is able to return to work.  If the employer has provided a detailed description of essential job functions, some federal appellate courts have allowed a thorough “functional capacity evaluation.”  The nature of the job, safety implications, and uniformity of policy for all similarly situated would be critical factors.  For example, a knee injury may trigger the standards for an emergency medical technician, but not for an office clerk.

The employer may contact the employee’s health care provider for purposes of authentication and for clarification after the employee has been given an opportunity to provide the requested information.  HIPAA rules for privacy protection do apply.

Checklist for Fitness-for-Duty Certifications:

  • Adopt a uniformly-applied policy or procedure requiring Fitness-for-Duty Certifications from all employees who take leave for a health condition, even if they do not take FMLA leave.
  • Notify employees of the Fitness-for-Duty Certification policy in the employee handbook and again when an employee is notified that the leave requested qualifies for FMLA protection.
  • Do not request Fitness-for-Duty Certifications from employees taking intermittent leave, unless there is a reasonable safety concern and then no more than once every 40 days.
  • Be aware that state laws and/or a collective bargaining agreement may present special requirements regarding Fitness-for-Duty Certifications.
  • Make certain that the Fitness-for-Duty Certification comes from the employee’s own health care provider.
  • Ensure that the Fitness-for-Duty Certification only relates to the particular health condition that caused the employee’s need for FMLA leave.
  • Do not delay the employee’s reinstatement pending contract with their health care provider for purposes of clarification of a Fitness-for-Duty Certification.
  • Do not request a second or third opinion.

An employee who does not provide a fitness-for-duty certification or who requests additional FMLA leave is no longer entitled to reinstatement under the FMLA.

2012 Tax Planning for Fiscal Cliff

2012 Tax Planning for Fiscal Cliff

Now that the election is over, our federal government has to address the “Fiscal Cliff” created by the Budget Control Act of 2011.  The Fiscal Cliff involves several tax increases, the expiration of the Bush Era tax cuts, along with cuts in government spending.

Unless the Senate and the House come to a resolution, there are several tax provisions that will expire or be replaced after December 31, 2012.  These tax changes will have a significant impact on your individual income taxes, estate and gift taxes and taxes on businesses.

Without a resolution prior to the end of the year, below are some of the changes that will be made and some tips for your tax planning for 2012.

Individual Income Taxes
Below are the income tax provisions that will impact individuals after 2012. 

Individual Income Tax rates will increase, depending on your income level, to 15%, 28%, 31%, 36% and 39.6%. Current tax rates are 10%, 15%, 25%, 28%, 33% and 35%. 

The tax rates on capital gain will be increased to 15% and 20%.  Currently, the tax rate on capital gains is 0% or 15 %. 

Qualified dividends will be taxed at the ordinary income rate, which has a maximum rate of 39.6%.  Qualified dividends are currently taxed at 15%.

A 3.8% Medicare Contribution Tax will be implemented for married couples with an Adjusted Gross Income of $250,000 or more.  This is a tax on net investment income, which is interest, dividends, rental income and other passive income or non-wage income.

There will be an elimination of the payroll tax break.  For the past two years, the employee’s share of withholding taxes for Old Age and Survivors Disability Insurance (Social Security) was reduced from 6.2 % to 4.2 %.  On January 1, 2013, this rate goes back to 6.2 %.  

Typically when tax planning for the year end, the general rule is to defer income to another year and accelerate expenses into the current year.  For 2012, the advice is to accelerate income into this year, and maybe even accelerate expenses into this year.

One of the proposals presented by President Obama is a change in the itemized deductions for 2013, either by limiting the maximum amount of itemized deductions allowed or adjusting the amount of itemized deduction allowed based on income levels.  To take full advantage of the higher itemized deductions allowed, consider paying the expenses allowed as itemized deductions this year, such as property taxes, charitable contributions, etc.

To take advantage of the lower income tax rates in 2012, consider accelerating any wages, bonuses or other compensation which can be paid in 2012 to be actually paid in 2012.

It is recommended that you sell long-term gain assets, such as securities, which have increased in value to recognize the gain in 2012.  If you believe that the investment will continue to increase in value, the advice would be to sell the investment and then repurchase it to share in the future appreciation.  The limitations based on a “wash sale” apply to recognizing losses on a sale, but does not apply to recognizing gains.  

If you own C Corporation or S Corporation stock and the corporation has earnings and profits, it may be beneficial to pay dividends by the end of the year.  In 2012 qualified dividends are taxed at 15%.  In 2013 these same dividends will be taxed at ordinary income rates which could be as high as 39.6% and may be increased by the 3.8% Medicare Contribution Tax.
  
High income individuals may consider converting their interests in limited liability companies and partnerships to a corporation, which will convert the self-employment income or wages to another type of income.  For tax purposes, limited liability companies are typically taxed as a partnership.  Earnings from partnerships are usually treated as wages or self-employment income, which in 2013 will be subject to the additional 3.8% Medicare Contribution Tax.  If you have an S Corporation engaged in an active trade or business, you can still pay  yourself wages and then make a distribution of the remaining share of income from the S Corporation which would avoid the 3.8% Medicare Contribution Tax, since it would not be investment income.

Estate and Gift Taxes
For estates and gifts, there is a significant change.  Through the end of 2012 the maximum tax rate for estate and gift taxes is 35% and the exemption amount is $5,120,000.  This means that you are allowed to transfer by inheritance or by gift $5,120,000 in 2012 without any estate or gift tax.   

Unless the current rates are extended, in 2013 the estate and gift tax exemption drops to $1,000,000 in assets and estates with assets over $1,000,000 will have to pay taxes at a higher tax rate, with the maximum rate being 55%.  In addition, the generation skipping tax exemption that is currently at $5,120,000 will be dropped to $1,400,000. 

If you are considering making a substantial gift in the future, barring a change in the current legislation, it is in your best interests to make the gift in 2012.

The 3.8% Medicare Contribution Tax will also be applicable to earning of an estate and trust.  To avoid the additional tax on the estate or trust, plan on distributing as much of the estate or trust earnings in 2013 as possible.  
 
Business Taxes
For businesses, there are two changes that will impact current business owners.  One is the loss of bonus depreciation.  Currently there is a special 50% first year bonus depreciation allowance for the costs of qualified property which is placed in service by the end of the year.  This 50% first year bonus depreciation is eliminated in 2013.  

Section 179 allows a business to deduct the entire cost of qualified property in the first year in which it is placed into service instead of claiming a depreciation deduction over a number of years.  In 2012, Section 179 expense is allowed up to a maximum of $139,000 of qualified property placed into service.  In 2013, the dollar limitation is $25,000.  There is an obvious advantage to place as much personal property used in a trade or business, including software, into service in the year 2012.

Due to the generality of the information provided in this article, the information provided here may not be applicable in all situations.  No decisions should be made or any action taken without consulting with your professional tax advisor and should be based on sound financial planning principles.

Christopher G. Schultz is a partner in our Livonia office where he concentrates his practice on corporate and business law, commercial litigation and estate planning.  Additionally, Mr. Schultz is a Certified Public Accountant.  He can be reached at (734) 261-2400 or cschultz@cmda-law.com.

 

Electrical Inspector’s Actions Not Cause of Plaintiffs’ Injuries

Greg Grant of the Firm’s Traverse City office recently obtained dismissals of two cases on behalf of a Northern Michigan County building official and electrical inspector.  In June 2011, the decedent, a 17-year old male, and his friend were walking along a floating dock at a busy City-owned marina.  The decedent jumped off the dock and into the marina water and was immediately electrocuted.  His best friend, and plaintiff in the companion case, jumped in to save the decedent.  He was also electrocuted.  Decedent subsequently died as a result and his friend survived with alleged injuries.

Evidence indicated that a wire from an electrical junction box located underneath the dock had been leaking electricity into the water.  Plaintiffs sued a number of defendants on gross negligence theories including the City and its City dockmaster, the general contractor who constructed the marina, the project engineers, the electrician, the County building official and electrical inspector.  The County building official was dismissed voluntarily early in the case.  Mr. Grant filed a motion for summary disposition before the close of discovery on behalf of the County electrical inspector arguing that the inspector properly approved the electrical system at the marina and that it was compliant with all applicable codes and regulations.  The court agreed that the electrical inspector did not breach any legal duty and that his actions were not the proximate cause of Plaintiffs’ injuries.  The claims against the electrical inspector were dismissed with prejudice.

Mr. Grant can be reached at (231) 922-1888 or ggrant@ cmda-law.com.

Preventing Molestation in Schools

A high school secretary is charged with statutory rape of a student. Another teacher is found with a student in his motel room. A middle school teacher is convicted of molesting three students. What is happening in our schools? How can school districts protect students, as well as prevent false claims and civil lawsuits?

In California, a school district can be found liable for sexual abuse committed by an employee if the court finds the district negligent in hiring or supervising the employee. As a result, all school district employees must be proactive in reporting any action of a fellow employee that appears to be inappropriate, such as:

Does the interaction between a school employee and a student feel uncomfortable to the employee observing it?
Does a school employee have contact with a student after school in a private setting such as at a site off campus?
Does a school employee make “friends” with students?
Does a school employee behave more like the student’s peers than like an adult?

According to Dr. Carla Van Dam in her book Identifying Child Molesters – Preventing Child Sexual Abuse these are indicators that inappropriate conduct may be occurring.

Unfortunately, many employees may turn a blind eye when it comes to inappropriate conduct of their co-workers. A failure to report some suspicion of inappropriate conduct with a student could be used to show negligent supervision, even if that suspicion was witnessed by a fellow employee and not a direct supervisor.

The investigation should involve at least two people for all interviews, investigation and evidence collecting. An attorney should be part of the investigation. Any notes, memos or investigation reports should be directed to counsel so the attorney client privilege attaches. In that way, the documents will not have to be turned over to the other side if litigation ensues. Even though the document is directed to an attorney, other people in the district can still be copied on it.

If there is a report that inappropriate sexual conduct may have occurred, the school district should immediately offer counseling services to every student, parent, family member or staff member who may be affected by the allegation. Even if the molesting employee quits, the investigation must continue and any and all evidence turned over to the police. There can be no agreement with the employee to withhold information, remain silent about the subject of the investigation or stop the investigation.

In order to avoid liability, it is imperative that all employees be proactive. Proactive employees report to the district any conduct which appears suspicious or inappropriate, as well as reporting to the appropriate agency conduct which causes a “reasonable” suspicion that abuse has occurred. It is also imperative that a full and well documented investigation occur and if the investigation reveals that inappropriate sexual conduct has occurred that the police and parents are immediately notified.

New Rules Will Cause State and Local Governments to Account for Their Retiree Benefit Promises

As Michigan’s largest private employers try to cut back, they have been addressing the promises they made in more prosperous decades to fund retiree health care costs and defined benefit pensions. The results have uniformly led to cuts to or elimination of those benefits. Now comes the turn of state and local governments.

The Government Accounting Standard Board is set to implement new rules next year that will require states, municipalities and other governmental entities, such as school boards, to actuarially account for their future benefit obligations. Many units of government already perform this type of analysis. However, recent conversations I have had with numerous council people, trustees and city managers seem to indicate this type of review is uncommon. More importantly, many governmental entities have not heard of the rule change.

Unfortunately, the analysis will show almost all the contractual obligations, especially for retiree health care benefits, are woefully unfunded. While there are no current provisions to mandate funding for these obligations, the shear size of the costs will put tremendous pressure on every aspect of government budgets. Often, to fund future payments at the promised level, budgets will have to shift from present operational priorities (vehicles, equipment, roads, etc.) to benefit costs for past employees. In Michigan, most levels of government have been reducing employee levels. As we have seen in the private sector, the shrinkage of employment numbers aggravates the problems.

Oakland County’s unfunded health care obligations were reported in July to be $453 million, Macomb County at $400 million and the City of Detroit came in at a staggering $7 billion in long term health care debt. The State of Michigan may have as much as $30 billion dollars in future promises.

The consequences of these promises were often obscured by the failure to require any present funding. For many years both management and labor indulged themselves by reaching agreements on benefits while knowing the bills would become due on someone else’s watch. The new accounting rule will not remedy the problem, but will graphically illustrate the gap between the available funds and the astronomical unfunded debt. Unlike private industry, the promises to public employees are taxpayer obligations. But, just as in the private sector, the revenues available, tax funded or otherwise, can never cover the difference.

It is critical that both public labor and management act with due haste to reconcile their obligations. The new regulations should prompt some fiscal clarity. The alternative is a completely predictable financial meltdown with thousands of people relying on benefits that they will never receive.

How a Bill Becomes a Law

It is the primary responsibility of the Michigan Legislature to formulate solutions to problems facing Michigan’s citizens. The Legislature does this by enacting laws designed to regulate and protect the activities of the people, business and government of the State. Below is a general and very brief description of the major steps of the legislative process that a bill must go through before it is enacted into law.

What is a bill?

A bill is a proposed law or a proposed change in an existing law. In order for a bill to become a law, it must go through a procedure that provides both the House of Representatives and the Senate the opportunity to carefully consider the proposal and its possible effects.

Where do bills come from?

Prior to and during the drafting of a bill, there are a variety of individuals or groups that play a role in the creation of the bill. Ideas for bills come from many sources, including individual legislators, government agencies, interest groups, court decisions, attorney general opinions, special committees and even ordinary citizens. Anyone with an idea for a law can send a letter to their local Legislator to get him or her to sponsor the idea in a bill.

How does a bill become a law?

The Michigan Legislature is made up of two chambers B the Senate and House of Representatives. Bills may be introduced in either chamber of the Legislature at the State Capitol in Lansing. Upon introduction, each bill is assigned a number. Under the State Constitution, every bill must be read three times in both the House of Representatives and Senate before it can become a law. The Legislators in each chamber must have at least five days to study each bill.

After the first reading, the bill is sent to a committee to be studied. The committee is made up of Legislators who have a special interest in the subject of the bill. Examples of standing committees include: education, family and children services, finance, transportation, technology and energy, employment relations, training and safety and agriculture. Committee members consider a bill by discussing and debating the bill. Sometimes public hearings are also held.

Committee members can approve the bill the way it is, make changes or even rewrite the bill before sending it back to the chamber for the second reading. Once the bill is returned, committee recommendations are considered and any changes may be adopted. The bill then advances to the third reading.

After the third reading, the bill is voted on by all members of the chamber. In order to pass a bill, more than half of the Legislators must vote “yes.” The Legislators can also make changes, vote against the bill or send the bill back to a committee for further study.

Once a bill is passed by either the House of Representatives or Senate, it is sent to the other chamber of the Legislature where it goes through the same steps. For example, if a Senator introduces a bill and it is passed by the Senate, it then goes to the House of Representatives for review. The House sends it to a committee and then votes on the bill.

Sometimes when the Senators and Representatives do not agree, they make changes to the bill. If this happens, the bill has to be sent back to the original chamber so they can agree or disagree with the changes. This is called concurrence.

When more than half of all the members of both the House of Representatives and the Senate agree, the bill is ordered enrolled, then printed and sent to the Governor. The Governor has three choices: sign the bill, veto the bill or do nothing. Bills that have been signed into law by the Governor are filed with the Secretary of State and then assigned a Public Act number. If the Governor does, the bill automatically becomes law after 14 days. If the bill is vetoed while the Legislature is in session, the Legislature may override the veto by a two-thirds vote of the members of each chamber. The bill then becomes law.

This is just a brief version of what it takes for a bill to actually become a law. Legislators spend countless hours reviewing, debating and amending bills, which is why it usually takes a bill over a year from its introduction to reach the Governor’s desk.

Conversion Statute Permits Treble Damages for Theft

Changes were recently made to the Michigan Statute governing recovery of damages for theft. The Conversion Statute now allows a person to get three times the amount of actual damages sustained from a person who stole or embezzled property for their own use. To support a claim, the defendant must have obtained the property without the owners consent and must have an obligation to return the property to the rightful owner.

Prior to the change, the law permitted a treble damage claim only against a person “buying, receiving, possessing, concealing or aiding in concealment” of stolen or embezzled property. Because the prior law did not include the actual thief or embezzler, a claim under the statute could have the seemingly unfair result that the person who receives stolen goods gets hit with a treble damage claim, while the actual thief or embezzler does not.

The amendment to include the actual thief or embezzler is very useful to a person or business whose property has been stolen, as recovery is no longer restricted to the person who receives the stolen property or aids and abets in its concealment.

In our legal practice we have found the Conversion Statute very effective in recovery of damages for stolen property. First, lawyers representing defendants who are being sued under the Statute recognize their clients face risks of liability far in excess of the value of the stolen items, and that the Statute permits recovery of costs and attorneys fees. Consequently, defendants counsel advise clients to negotiate a settlement early in the litigation, rather than face the risk of a large judgment. Because of onerous nature of the treble damages provision, we have been able to obtain very favorable negotiated settlements.

Second, if a judgment is obtained against a person under the statute, it will generally be non-dischargeable in a bankruptcy proceeding, meaning that even if the defendant files for bankruptcy, the debt will survive. This gives defendants additional motivation to negotiate a resolution on terms favorable to the plaintiff.

Examples of how the Statute can be applied by a business include claims against a person who commits embezzlement of company funds or property, or cases of theft of company property by third parties. A common scenario is a trusted company bookkeeper who experiences financial difficulty and begins paying personal debts with company funds. By the time an audit uncovers the theft, the company may have lost thousands of dollars. In such instances we have made claims under the Conversion Statute and obtained very favorable settlements quickly, without unwelcome publicity.

If you or your business has been a victim of theft, fraud or embezzlement, contact an attorney in our business group for fast, effective and discrete resolution of all claims in a manner that best protects your legal rights.

Good News for Private Sector Businesses

The National Labor Relations Board (NLRB) has finally classified a longstanding dispute over whether certain “charge nurses” can be considered “supervisory” and therefore excluded from coverage under the NLRA. This case may also serve to clarify the status of other managerial employees.

The NLRB determined that nurses, who serve permanently as charge nurses “on every shift they work” must be considered “supervisors.” Even though these nurses do not have employees who report to them, they are responsible for “overseeing their patient care units” that includes “assigning other registered nurses to patients on their shifts based upon the skill, experience and temperament of other nursing personnel” and matching the nursing personnel to the specific needs of the patients. (Oakwood Health, Inc. and the U.A.W., Case No. 7-RC-22141).

The three member majority explained that an employee is a “supervisor” within the meaning of the NLRA if that employee engages in any one of 12 supervisory functions listed in the Act. Examples applicable to this case included such functions as to “assign” employees and to “responsibly direct” them, where such functions involve the use of “independent judgment.”

The NLRB analysis, while focused on the specific facts of each case, does broaden the scope of those who may be considered supervisors despite lack of those functions more commonly associated with supervision, such as in-line authority over disciplinary matters. The majority interpretation more faithfully follows the intent of the legislators in recognizing the importance of not allowing supervisors to be lumped into a union organizing campaign where an employer has to depend on the loyalty of its supervisors in order to carry out its functions. Those who assign employees to “significant overall tasks” are encompassed in the Act’s definition of a supervisory function. Those who are engaged in the function – “responsibility to direct” means the person doing the directing must be accountable for the performance of the task by others. Finally, the direction given must involve a degree of discretion – not simply appointing individuals to tasks based on some pre-determined criteria such as seniority or productivity records.

While this decision may not mean sweeping changes in the number of employees excluded from joining unions, it does provide a measure of flexibility for management and recognition on the part of this important governmental agency of the real-world needs of employers.

Recommendation: If an employer has one or more employees who may fit under this more expansive view of Asupervision,@ legal counsel should be obtained to fully evaluate whether such individuals are properly to be excluded from being included among the unionized employees.

Medically Distinguishable Test Only Applies to Some Work Injuries

The Michigan Supreme Court’s decision in the case of Rakestraw v General Dynamics Land Systems, Inc. clarified whether a disability produced as a result of symptomatic aggravation of a pre-existing, non-work-related medical condition was compensable. The Supreme Court held the claimant must establish more than the aggravation of symptomatology from a pre-existing, non-work-related condition for that claim to be compensable based upon aggravation of that condition by work-related factors.

However, a few months ago the Michigan Court of Appeals held in the case of Simpson v Kevin Bordolla Construction & Concrete Supply, Inc. the Rakestraw analysis does not apply to cases where the pre-existing condition is by itself a work-related condition.

In 1979, Mr. Simpson, an iron worker, injured his left hand during the course of his employment. It remained untreated and continued to worsen while the plaintiff worked over the next two decades. On October 23, 2000, the plaintiff worked for Bordolla Construction & Concrete Supply, Inc. and was responsible for putting reinforcement rods into concrete. As part of his job, the plaintiff had to carry bundles of rods, which weighed between 100 and 150 pounds. While performing this work, his wrist bothered him but he was able to finish the one day job. The plaintiff did not return to work after that date.

The plaintiff’s treating physician diagnosed Mr. Simpson with a fracture of the lunate bone in the left wrist which was never repaired. It progressed to a dissolving necrosis of the bone. The physician stated that the plaintiff’s use of his hands and wrists as an iron worker following his initial fracture in 1979 increased the rate of bone destruction to the point where the condition precluded the plaintiff from using his wrist for most tasks of an iron worker. The defense expert attributed the plaintiff’s post-2000 disability to the initial fracture sustained in 1979.

The Court of Appeals held Mr. Simpson’s employer liable for aggravation of his injury even though he had only spent one day on the job.

After trial, Mr. Simpson was awarded benefits for his left-wrist injury, concluding Bordolla Construction & Concrete Supply, Inc. was responsible for payment of compensation as the last employer to employ the plaintiff in conditions that resulted in his disability. The magistrate stated the plaintiff’s activities while working accelerated the worsening of his wrist condition.

On appeal, Bordolla Construction & Concrete Supply, Inc. argued there was no evidence that Mr. Simpson suffered an injury on October 23, 2000 that was “medically distinguishable” from any pre-existing injury resulting from the 1979 fracture. The Workers’ Compensation Appellate Commission (WCAC) rejected their argument holding that Mr. Simpson’s wrist condition of 2000 was “medically distinguishable” from the broken bone suffered in 1979. They held the advance of necrotic bone that disabled the plaintiff as of October 23, 2000, was not the same condition suffered by the claimant in 1979.

The Michigan Court of Appeals affirmed the WCAC decision determining the facts in the case were legally distinguishable because in the Rakestraw case the pre-existing condition was clearly caused by non-work-related factors. In Simpson, the pre-existing condition was clearly a work-related injury. Therefore, the question is not whether a condition pre-existed the claimed injury, but whether the claimant had already sustained a work-related injury.

Thus, where a workers’ compensation claim stems from the aggravation or complication of a pre-existing, work-related injury, the case of Rakestraw, which addresses non-work-related injuries, is factually distinguishable and inapplicable to the determination of liability. The result is that judges cannot rely upon Rakestraw’s “medically distinguishable” test in determining whether an employer must provide compensation for the aggravation of an employee’s pre-existing, work-related injury.

Employers Need To Be Mindful of Anti-Retaliation Policy

Recently, CMDA attorneys Ronald Acho and son James Acho successfully disposed of a case that garnered some local publicity. A police officer sued a local municipality for retaliatory discharge, when the municipal police department discharged the officer from his employment, based on performance. The officer had filed some inter-departmental complaints and felt that his termination was in retaliation by the police department for filing the complaints. Thankfully, we were able to prove otherwise, but because of a recent United States Supreme Court Case employers need to be wary of retaliatory discharge suits becoming more common.

In the summer of 2006, the United States Supreme Court issued its decision in a case called Burlington Northern v. White, a decision that greatly expanded the scope of employer conduct which may constitute unlawful retaliation, pursuant to Title VII of the Civil Rights Act of 1964. The Court’s decision significantly impacts employers, for prior to the Burlington Northern decision, an employer could only be held liable for unlawful retaliation if the employer engaged in conduct that constituted an adverse employment action, such as a decision to terminate, a failure to promote, a failure to hire, etc. However, the Burlington Northern decision clarified that an adverse action is no longer required for retaliation to exist. The Court stated that not only may an individual maintain a retaliation claim if the action was adverse, but also ruled that retaliatory adverse actions outside of the work place are actionable.

  • Employers should make certain that their updated EEO (Equal Employment Opportunity) Policy in the company’s handbook contains an anti-retaliation provision, including the following statements:
  • Retaliation is prohibited not only by law, but also an equally by organization policy;
  • Retaliation will not be tolerated and retaliatory acts will lead to severe disciplinary action up to and including termination of employment;
  • Complaints of discrimination, harassment and retaliation are taken very seriously and will promptly be investigated;
  • Anti-retaliation policy protects not only those who bring complaints of harassment, discrimination or retaliation, but also those who participate in the investigatory process (such as witnesses);
  • Prohibited retaliation includes adverse actions independent of the workplace; and
  • Examples of the kind of conduct that may be considered retaliatory under the organization=s policy (e.g., tangible adverse employment actions such as denial of promotion as well as other material changes in the terms and conditions of employment such as work assignments).

This little bit of proactive time may go a long way and perhaps be the reason you never have to defend a retaliatory discharge suit. If you have any questions about safeguarding against these types of suits, please feel free to contact James Acho in our Livonia office at (734) 261-2400 or via e-mail at jacho@cmda-law.com.