Hirzel Selected as 2015 Up & Coming Lawyer

Kevin Hirzel_8x10@300Congratulations to Kevin Hirzel who was selected as one of the 30 Michigan Lawyers Weekly’s 2015 Up & Coming Lawyers.

The honorees chosen “have spent less than a decade in practice and display the ambition, drive, determination and accomplishments that make them worthy of the title ‘Up & Coming Lawyers.’”

The Up & Coming Lawyers Class of 2015 will be recognized at a Dec. 17 luncheon at the Detroit Marriott Troy. Each lawyer will be profiled in a special section in the Dec. 21 issue of Michigan Lawyers Weekly.

Mr. Hirzel is a partner at CMDA and practices out of both our Livonia and Clinton Township office locations.  He concentrates his practice on commercial litigation, community association, condominium law, construction law and real estate law.  He may be reached at (734) 261-2400 or khirzel@cmda-law.com.

Case Law Update: Minnis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

CASE LAW UPDATE

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Minnis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

2015 WL 3941846 (June 29, 2015)

Mr. Minnis, the former coach of the LSU women’s tennis team sued the University claiming Title VII and Title IX discrimination when the University failed to renew his contract in June of 2012. Minnis was hired in 1991 and was the first African-American coach of any sport in the school’s history. Minnis coached at the University for 21 years. Although Minnis received coaching awards, the women’s tennis team struggled during his 21 years, and only achieved a winning record on three occasions during the 21 year period. In the three years prior to his termination, the team had a losing season. Additionally, Minnis received performance evaluations during his tenure which were generally mixed. When Minnis was terminated, he was replaced by a white female at a higher salary.

In affirming the dismissal of the Plaintiff’s case, the Court noted that Minnis was a member of a protected class but that he was not able to rebut the University’s non-discriminatory reasons for his termination where he failed to meet established goals, he had a losing record and his team had morale issues. Further, the Court found that his reprimand because he was aware that a student had been drinking before a charity event and negative performance evaluations were not enough to establish a race-based hostile work environment claim. Finally, the Court held that Minnis failed to establish a Title XI retaliation case because both the men’s coach and Minnis complained about the off campus practice facility, thus disproving a case of gender inequality.

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or psturdy@cmda-law.com.

October’s 50 a Month Donation

CMDA is honored and appreciative for the trust our clients have placed in our Firm since 1965.  As a way to give back to the community as we celebrate our 50th anniversary, every month throughout 2015 the Firm will be donating 50 items (or more) to a local charity.

In October we will be collecting new and unused mittens and gloves, in children and adult sizes, for Mittens for Detroit.

The sole purpose of Mittens for Detroit is to collect, purchase and distribute mittens and gloves to 100 Detroit charities, agencies, schools, and programs that help children and adults in need, including Alternatives for Girls, Children’s Center of Wayne County, COTS, Covenant House of Michigan, Gleaner’s, Michigan Veteran’s Foundation, and St. Patrick Senior Center.

If you are interested in donating new mittens and gloves, there is a basket in the reception area of our Livonia office.  Thank you for your support!

California Legislation Update

RECENTLY ENACTED CALIFORNIA LAWS

MauriceKane Amendments to FEHA

In August 2015, California Gov. Jerry Brown signed into law amendments to the California Fair Employment and Hous­ing Act (FEHA) that will provide additional protection for employees who make a request for an accommodation for a dis­ability or religion. Assembly Bill 987 (AB 987) was initiated in reaction to Rope v. Auto-Chlor System of Washington, Inc., a 2013 decision from a California appellate panel. In that case the employee requested a leave of absence to donate a kidney to his sister five months prior to the surgery. Two months prior to the scheduled surgery the donor-employee was terminat­ed from his employment. He sued for associational disability discrimination under FEHA, but the appellate panel affirmed dismissal of his suit, holding that “a mere request—or even re­peated requests—for an accommodation, without more” does not constitute protected activity sufficient to support a claim for retaliation in violation of FEHA. AB 987 amended the stat­ute to establish that “[a] request for reasonable accommoda­tion based on religion or disability constitutes protected activ­ity … such that when a person makes such a request, he or she is protected against retaliation for making the request.” The changes to FEHA will take effect on January 1, 2016.

Term “Alien” Removed from CA Labor Code

Scheduled to take effect January 1, 2016, is a law that will ex­cise the term “alien” from the California Labor Code. Sen. Tony Mendoza (D-Artesia), who proposed Senate Bill 432, explained that the term was derogatory as applied to foreign-born work­ers. “California is among the top destination states for immi­grants in the United States,” the lawmaker said in a statement. “Given the abundant evidence of their many contributions, it is imperative that any derogative references to foreign-born in­dividuals be repealed from state law.” Pursuant to the new law, the term “alien” will henceforth be removed from the official Codes of the State of California, wherever it currently appears.

LEGISLATION TO WATCH

Bill Would Ban Mandatory Arbitration Agreements

California lawmakers passed a controversial new measure earlier this month. Assembly Bill 465 would effectively ban mandatory agreements to arbitrate employment disputes in the state. While employee groups have voiced support for the proposal, the California Chamber of Commerce has dubbed it a “job killer,” cautioning that it would clog the courts and lead to more employment litigation. In addition, it would be objection­able as covering the field occupied by the Federal Arbitration Act, which likely preempts any such contrary state legislative scheme. The California Senate passed the bill in a 22-15 vote and the Assembly followed by a vote of 45-30. Gov. Brown will decide later this month whether to sign it into law. If he does, any arbitration agreement entered into, revised, extended, or renewed on or after January 1, 2016 would need to include a statement that the agreement is not mandatory and that sign­ing is not a condition of employment.

Bill 358: Strongest Equal-Pay Law in Country

A second measure awaiting the Governor’s signature is Sen­ate Bill 358, the California Fair Pay Act. The legislation would prohibit employers from paying employees of one sex at a rate less than the rate paid to employees of the opposite sex, “for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” In addition, the bill protects workers who discuss or ask about wages from retaliation. Gov. Brown has indicated that he intends to sign the measure, which would take effect January 1, 2016.

Maurice S. Kane is an attorney in our Riverside, CA office where he concentrates his practice on employment and labor law, in­surance defense, and litigation. He may be reached at (951) 276-4420 or mkane@cmda-law.com.

New Rules Affecting Workers and Employers by the U.S. Department of Labor

Gerald DavisMany businesses, as employers, have experimented with treating their workers as independent contrac­tors in an effort to avoid withholding wages for taxes, social security (FICA) and unem­ployment insurance, as would be required for workers classified as employees.

The U.S. Department of Labor (DOL) com­piled a new six-part test, issued under the Administrator’s Interpretation 2015-1.

  1. Is the work an integral part of the employer’s business?

For example, a lawyer doing work for law firm may have to be treated as an employee rather than an independent contractor, while the same lawyer providing services for other business en­terprises would likely be treated as an independent contractor.

  1. Does the worker’s managerial skill affect the worker’s oppor­tunity for profit or loss?

According to the DOL, this test is unaffected by the ability to work more hours, but is affected by the worker’s opportunity for profit or loss related to the worker’s managerial skill.

  1. How does the worker’s relative investment compare with the employer’s investment?

The DOL emphasized that a worker’s investment should not be considered in isolation, but rather compared to the investment an employer makes to the overall business. For example, if the worker is an accountant and brings his own computing and cal­culating equipment, office equipment, such as ledger paper, and other office supplies necessary to perform his or her job, he or she will more likely be treated as an independent contractor than an employee.

  1. Does the work performed require special skill and initiative?

A worker’s skill set, judgment, intuition and independence prevail over technical skill in determining whether the worker is econom­ically independent.

  1. Is the relationship between the worker and the employer permanent or indefinite?

The more permanent a worker performs services for an employ­er, the more likely the worker is an employee, albeit a temporary employee or a part-time employee.

  1. What is the nature and degree of the employer’s control?

The more independence, judgment and reliance upon developed skill-sets acquired from experience, learning, or education, with the ability to exercise independent managerial and administrative judgment in the way the job will be performed, favors treatment as an independent contractor.

However, many of the job functions overlap, and the application of the six-part test issued by the DOL requires analysis for “best fit” among the criteria outlined by the six-part test.

There are significant penalties for improperly classifying an em­ployee as an independent contractor to avoid the taxes imposed on an employer on behalf of employees. The employer can be liable to the worker for back overtime for a two-year period, or for three years if the misclassification is deemed willful. Further, under the Fair Labor Standards Act, successful litigants can also recoup their attorneys’ fees and costs, which may far exceed the overtime pay they may otherwise be entitled to, if classified as an independent contractor, but later determined by the DOL to be an employee.

Earlier, the DOL relied on a 20-part “control test” that considered whether the worker brought his own supplies, exercised judg­ment, performed mostly administrative or supervisory work, controlled subordinates, such as assistants, whether the work was typically done by an independent contractor or an em­ployee, and whether the worker controlled his or her hours of work and the manner in which the work was executed. Now, with the six-part test, control is merely one aspect of six considerations applied by the DOL in evaluating a candidate’s entitlement to benefits under the Fair Labor Standards Act, in­cluding payment of overtime and the employer’s incurrence of tax liability for withholding of wages, payment of FICA, un­employment compensation insurance and workers’ disability compensation premium. Further, there appear to be proposed changes to the overtime laws which increase the minimum pay, from $23,660.00 per year to $50,440.00, for an employee to be considered salaried and, therefore, exempt from over­time eligibility.

Beginning with the third quarter of 2015, the Taxable Wage Base, which is the maximum annual wage on which an em­ployer must pay unemployment taxes, will be lowered from the current rate of $9,500 to $9,000. This means that non-de­linquent contributing employers will pay less in unemployment taxes for the upcoming quarters.

Gerald C. Davis is a partner in our Livonia office where he con­centrates his practice on corporate and business law, leveraged buy-outs, company reorganization and refinancing, analyzing investments for joint ventures, intellectual property, and draft­ing loan agreements. He may be reached at (734) 261-2400 or gdavis@cmda-law.com.

 

 

 

 

 

Michigan Case Law Update: ESPN v Michigan State University

MICHIGAN CASE LAW UPDATE

ESPN v. Michigan State University

Court of Appeals Docket No. 326773 (August 18, 2015)

In September of 2014, ESPN submitted a request under FOIA to the University asking it to provide ESPN with incident reports involving a list of student-athletes over a specified period of time. The University produced two sets of records but redacted the names and identifying information of the suspects, victims and witnesses. The University cited the privacy exemptions set forth in the FOIA statute. In February of 2015, ESPN sued the University to disclose the names of the suspects if they were one of the 301 student-athletes identified by ESPN. After a hearing, the trial court ordered the University to disclose the names of the suspects if they were one of the 301 student-athletes identified in the ESPN request. The Court agreed that the privacy exemption applied to the names of the victims and witnesses, even if victims and witnesses were identified as one of the student-athletes identified in the request. The University appealed to the Court of Appeals.

On August 18, 2015, the Michigan Court of Appeals issued an unpublished decision affirming the decision of the trial court to release the names of the student-athletes at issue. The Court found that releasing the names of the suspect student-athletes serves the public’s understanding of the operation of the University’s Police Department. The Court further noted that ESPN sought the information to learn whether policing standards are consistent and uniform at a public institution of higher learning and that the disclosure of the names is necessary for that purpose. The University appealed this finding to the Michigan Supreme Court. On October 16, 2015, the Supreme Court stayed the release of the names of the 301 students identified by ESPN and indicated that the University’s application for Leave to Appeal remains pending.

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or psturdy@cmda-law.com.

Former CMDA Attorney Appointed to Michigan Court of Appeals

Congratulations to former CMDA attorney Judge Colleen O’Brien who was appointed by Gov. Rick Snyder to fill a vacancy on the Michigan Court of Appeals bench. She will serve the remainder of retired Judge Pat Donofrio’s term, which ends Jan. 1, 2017.

Judge O’Brien was an attorney at our Firm until 1998 when she was elected to serve on the Oakland Circuit bench. She is the presiding judge of the court’s civil-criminal division and president of the Michigan Judges Association. We wish Judge O’Brien all the best as she embarks on this new and challenging journey.