Hirzel Honored at Up & Coming Lawyer Luncheon

Kevin Hirzel_8x10@300Congratulations to our colleague and friend Kevin Hirzel who was selected as one of the top 30 Up & Coming attorneys in the state by Michigan Lawyers Weekly. The Up & Coming Lawyers Class of 2015 was recently recognized at a luncheon at the Detroit Marriott Troy. Several of Mr. Hirzel’s family members, along with CMDA attorneys and clients attended the luncheon to celebrate his accomplishments with him. Mr. Hirzel was profiled in the Dec. 21 issue of Michigan Lawyers Weekly.

According to Michigan Lawyers Weekly, the 30 honorees that were 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.’” Mr. Hirzel founded the Firm’s fast-growing Community Association practice group, which has brought in more than 100 new clients in less than a year.

Kevin 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.

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Public Act 134: Incompatible Office Exceptions

daleyGovernor Rick Snyder recently signed several bills into law affecting local municipalities. The bills are aimed at clarifying the operations of local municipalities and should make it easier for counties, cities, townships, and villages to file documents and save money at the local government level.

Karen Daley, an attorney in our Livonia office and head of the Firm’s appellate law practice group, explains Public Act 134 of 2015.

Incompatible Office Exceptions
Currently, a public officer is prohibited from holding incompatible offices. House Bill 4070 modifies this rule by allowing employees of municipalities with less than 40,000 residents to serve in dual roles, so long as they are not in charge of negotiating collective bargaining agreements. Specifically, the new law allows a public officer or public employee of a city, village, township or county with a population under 40,000 to serve as a firefighter, police chief, fire chief, police officer or public safety officer, with or without compensation, as long as he or she was not a person who negotiated a collective bargaining agreement on behalf of firefighters, police chiefs, fire chiefs, police officers or public safety officers. This form of consolidation has the potential to save smaller municipalities several unnecessary costs.

Karen M. Daley is an attorney in our Livonia office and is the head of the Firm’s appellate practice group. She concentrates her practice on appellate law, municipal law, and probate law. She may be reached at (734) 261-2400 or kdaley@cmda-law.com.

Public Act 135: Electronic Proof of Insurance

daleyGovernor Rick Snyder recently signed several bills into law affecting local municipalities. The bills are aimed at clarifying the operations of local municipalities and should make it easier for counties, cities, townships, and villages to file documents and save money at the local government level.

Karen Daley, an attorney in our Livonia office and head of the Firm’s appellate law practice group, explains Public Act 135 of 2015.

Electronic Proof of Insurance
Under the Insurance Code, auto insurance coverage is mandatory for the operation of a motor vehicle. Under the Vehicle Code, drivers must show proof of insurance at the request of a police officer. House Bill 4193 amends the Vehicle Code by allowing a driver to show an electronic copy of their certificate of insurance to a police officer by using a cell phone or tablet. In order to address concerns of officers regarding handling cell phones during traffic stops, the new law allows a police officer to require a driver to e-mail the information from the electronic device to a site designated by the officer (such as a computer in the police car), where the officer could view and verify it. It is now Public Act 135.

Karen M. Daley is an attorney in our Livonia office and is the head of the Firm’s appellate practice group. She concentrates her practice on appellate law, municipal law, and probate law. She may be reached at (734) 261-2400 or kdaley@cmda-law.com.

Public Act 133: Pharmacy Technician Licensure

daleyGovernor Rick Snyder recently signed several bills into law affecting local municipalities. The bills are aimed at clarifying the operations of local municipalities and should make it easier for counties, cities, townships, and villages to file documents and save money at the local government level.

Karen Daley, an attorney in our Livonia office and head of the Firm’s appellate law practice group, explains Public Act 133.

Pharmacy Technician Licensure
After tainted drugs led to a nationwide outbreak of meningitis that resulted in 64 documented deaths, including 19 in Michigan, the Michigan legislature enacted a law that requires compounding pharmacies to be accredited through a national accrediting organization approved by the Michigan Board of Pharmacy. In addition, the legislature enacted a law to license pharmacy technicians, because Michigan was then one of only six states that failed to require licensure or certification. The new law set minimum educational requirements at a high school degree or GED equivalent.

The Governor recently signed Senate Bill 468, which adjusts these pharmacy technician licensure requirements. The new law 1) makes an exception to the requirement that a pharmacy tech have graduated from high school; 2) increases from 210 days to one-year the duration of a temporary license; 3) allows a pharmacy technician employed at a multi-site pharmacy to work at any of the pharmacy’s in-state locations; and 4) delays for one-year the deadline for a licensed compounding pharmacy to be accredited. It is now Public Act 133.

Karen M. Daley is an attorney in our Livonia office and is the head of the Firm’s appellate practice group. She concentrates her practice on appellate law, municipal law, and probate law. She may be reached at (734) 261-2400 or kdaley@cmda-law.com.

Public Act 131: E-Signatures Accepted at Register of Deeds

daleyMichigan Governor Rick Snyder recently signed several bills into law affecting local municipalities. The bills are aimed at clarifying the operations of local municipalities and should make it easier for counties, cities, townships, and villages to file documents and save money at the local government level.
 
Karen Daley, an attorney in our Livonia office and head of the Firm’s appellate law practice group, explains Public Act 131 of 2015.
 
E-Signatures Accepted at Register of Deeds:
Generally, an instrument conveying real property must meet certain requirements to be recorded, including a requirement that it contain the original signature of each person executing the instrument. Senate Bill 62 updates the statute to recognize the modern use of electronically affixed signatures by allowing county deed offices to accept electronic signatures for property documents being filed. The bill also provides that a “certified copy” of a death certificate is the same as an original.
Karen M. Daley is an attorney in our Livonia office and is the head of the Firm’s appellate practice group. She concentrates her practice on appellate law, municipal law, and probate law. She may be reached at (734) 261-2400 or kdaley@cmda-law.com.

Should Michigan Employers “Ban the Box” and Remove the Criminal Conviction Question from Applications?

Elizabeth Rae-O'Donnell

Elizabeth Rae-O’Donnell

On November 2, 2015, President Barack Obama announced a new executive order to “Ban the Box,” which is a check off on federal job applications that requires job applicants to disclose their criminal conviction history on the face of the application. This initial disclosure often causes employers to eliminate applicants before ever considering their qualifications. Background investigations will still occur, but at the federal level, agencies will delay inquiries into criminal histories until later in the hiring process, perhaps after a conditional offer of employment has been made.

The National Employment Law Project (NELP) reports that 19 states have adopted “ban the box” policies. Seven of those same states have also removed the conviction history question on job applications for private employers.  In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) endorsed removing the conviction question from job applications as a best practice indicating that federal civil rights laws regulate employment decisions based on arrests and convictions and that an automatic exclusion of an applicant based upon a prior criminal conviction may introduce discriminatory bias for workplace hiring decisions.  Additionally, more than 100 Michigan counties and cities, including Genesee County, Saginaw County, Muskegon County, Detroit, Kalamazoo, Ann Arbor, and East Lansing have adopted “ban the box” policies. Private companies such as Target and Home Depot have also instituted ban the box policies for their organizations.

All of the 2016 Democratic presidential candidates have endorsed banning the box on applications and Republican presidential candidate Chris Christie signed a “ban the box” bill into law in 2014.  In 2013, Michigan Representative Fred Durhal, Jr. (D-Detroit) proposed legislation (HB4366) to remove the criminal conviction request on employment applications, but this bill was not enacted into legislation.

Given what appears to be a growing national movement, the question remains as to what are the best employment practices for Michigan employers?  Michigan employers must understand that both the Michigan Elliott-Larsen Civil Rights Act and Title VII of the Civil Rights Act of 1964 govern their employment practices. Although potential applicants with criminal convictions do not fit within a protected category, they could still claim unlawful discrimination based upon a negative disparate impact. Disparate impact is a theory of liability regarding a facially neutral employment practice (reporting criminal convictions upfront) that does not appear to be discriminatory on its face, but is discriminatory in its application or effect.  Advocates for the removal of the conviction check on the face of the application argue that minority candidates are disproportionately excluded from consideration for employment. The 2012 EEOC Enforcement Guidance recommends that employers, after learning of criminal convictions, should assess whether an exclusion from employment consideration is consistent with business necessity by looking at the following factors:  (1) nature and gravity of the offense or conviction; (2) how much time has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought.  The EEOC also suggests that if an application has been initially screened out because of a criminal conviction, an “individualized assessment” should be performed that would include re-notice to the applicant, an opportunity for the individual to demonstrate that the exclusion should not be applied due to his/her particular circumstances, and consideration by the employer as to whether additional information provided by the applicant warrants an exception to the exclusion. The EEOC also recommends that employers develop narrowly tailored written policies and procedures for examining applicants and employees for criminal conduct which could include identifying essential job requirements, determining specific instances that may demonstrate unfitness for performing certain jobs, and recording justifications for the policy and procedures utilized.

While states and local jurisdictions may have laws and/or regulations restricting or prohibiting the employment of individuals with records of certain conduct, for example daycare providers, school teachers, nonteaching school employees, and caregivers in residential facilities, if the exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation may not shield an employer from Title VII liability.  CMDA will continue to monitor this issue to see if there is any forthcoming legislation that will impact Michigan employers.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.

Michigan Legislation Update: Recently Enacted Michigan Laws

daleyGovernor Rick Snyder recently signed several bills into law affecting local municipalities. The bills are aimed at clarifying the operations of local municipalities and should make it easier for counties, cities, townships, and villages to file documents and save money at the local government level.

E-Signatures Accepted at Register of Deeds
Generally, an instrument conveying real property must meet certain requirements to be recorded, including a requirement that it contain the original signature of each person executing the instrument. Senate Bill 62 updates the statute to recognize the modern use of electronically affixed signatures by allowing county deed offices to accept electronic signatures for property documents being filed. The bill also provides that a “certified copy” of a death certificate is the same as an original. It is now Public Act 131 of 2015.

Pharmacy Technician Licensure
After tainted drugs led to a nationwide outbreak of meningitis that resulted in 64 documented deaths, including 19 in Michigan, the Michigan legislature enacted a law that requires compounding pharmacies to be accredited through a national accrediting organization approved by the Michigan Board of Pharmacy. In addition, the legislature enacted a law to license pharmacy technicians, because Michigan was then one of only six states that failed to require licensure or certification. The new law set minimum educational requirements at a high school degree or GED equivalent.

The Governor recently signed Senate Bill 468, which adjusts these pharmacy technician licensure requirements. The new law 1) makes an exception to the requirement that a pharmacy tech have graduated from high school; 2) increases from 210 days to one-year the duration of a temporary license; 3) allows a pharmacy technician employed at a multi-site pharmacy to work at any of the pharmacy’s in-state locations; and 4) delays for one-year the deadline for a licensed compounding pharmacy to be accredited. It is now Public Act 133.

Incompatible Office Exceptions
Currently, a public officer is prohibited from holding incompatible offices. House Bill 4070 modifies this rule by allowing employees of municipalities with less than 40,000 residents to serve in dual roles, so long as they are not in charge of negotiating collective bargaining agreements. Specifically, the new law allows a public officer or public employee of a city, village, township or county with a population under 40,000 to serve as a firefighter, police chief, fire chief, police officer or public safety officer, with or without compensation, as long as he or she was not a person who negotiated a collective bargaining agreement on behalf of firefighters, police chiefs, fire chiefs, police officers or public safety officers. This form of consolidation has the potential to save smaller municipalities several unnecessary costs. It is now Public Act 134 of 2015.

Electronic Proof of Insurance
Under the Insurance Code, auto insurance coverage is mandatory for the operation of a motor vehicle. Under the Vehicle Code, drivers must show proof of insurance at the request of a police officer. House Bill 4193 amends the Vehicle Code by allowing a driver to show an electronic copy of their certificate of insurance to a police officer by using a cell phone or tablet. In order to address concerns of officers regarding handling cell phones during traffic stops, the new law allows a police officer to require a driver to e-mail the information from the electronic device to a site designated by the officer (such as a computer in the police car), where the officer could view and verify it. It is now Public Act 135.

Karen M. Daley is an attorney in our Livonia office and is the head of the Firm’s appellate practice group. She concentrates her practice on appellate law, municipal law, and probate law. She may be reached at (734) 261-2400 or kdaley@cmda-law.com.

Strategies to Minimize Joint Employer Liability

Gerald DavisEmployers should re-evaluate the creation of indemnity with clients where workers are placed at client work sites and also analyze any existing indemnity provisions of contracts with others where either has agreed to provide indemnity.

The National Labor Relations Board (NLRB) reversed more than 30 years of precedent in the recent case of Browning-Ferris Industries of California, Inc., which effectively changed the rules regarding protection for previously protected employers.
Most employers found comfort that the NLRB would not likely consider them to be joint employers with other entities, such as franchisees, staffing agencies, and contractors/sub-contractors, unless they exercised “control” over those entities’ employees.  This case, however, reaches beyond the NLRB and, if upheld through the appellate system, constitutes precedent for the proposition that more than one employer may be considered an employer, and hence responsible for whatever the other does, such as an improper firing, racial discrimination, sexual harassment, and so forth.

In the Browning-Ferris case, it was argued that both Browning-Ferris and Lead Point were joint employers because both entities could exercise “immediate and direct control over the terms and conditions of workers’ employment,” with the NLRB coming down on the side of the new test.  In reaching its decision, the NLRB did not accept the contention that an entity should only be considered a joint employer if “industrial realities” made the entity “essential to meaningful bargaining.”  Therefore, two entities may be considered joint employers of a single work force if they are both employers within the meaning of the common law and if they share or co-determine those matters governing the essential terms and conditions of employment. In evaluating the allocation and exercise of control in the workplace, consideration is given to the various ways in which joint employers may “share” control over terms and conditions of employment or “co-determine” decisions.  The decision notes that a joint employer relationship will not be found based on a company’s “bare rights to dictate the results of a contracted service or to control or protect its own property.”  Instead, the NLRB stated they will evaluate the evidence to determine whether a user employer affects the means or manner of an employee’s work and terms of employment whether directly or through an intermediary.   In other words, the NLRB will no longer require that a joint employer not only possess the authority to control an employees’ terms and conditions of employment, but also exercises that authority.  Therefore, reserved authority to control the terms and conditions of employment, even if not exercised, is clearly relevant to the joint employment inquiry.  In this case, the client supervisor’s detailed directives concerning employee performance, set conditions of hiring that the client was contractually bound to follow and had the authority to discontinue the use of any given employee, control the speed at which the workers were to perform their service, and other productivity standards. The contract between the entities gave the employer the right to control other terms and conditions, such as the right to enforce its safety policies against the employees supplied by the other entity.

This decision leaves employers guessing as to how much indirect control they must have over another entity’s employees to be deemed a joint employer. It is unclear what one must do to “affect the means and manner” of the employee’s work and terms of employment and what it means to “share or co-determine those matters governing the essential terms and conditions of employment.” Therefore, to avoid joint employer status under the new test, an entity must take a more hands-off approach than ever before to the employees of the sourcing entity.

Some general rules can be established.  All contracts must be reviewed with staffing agencies and other contractors to ensure that both entities are not performing management function. The new test takes into consideration whether the potential to control employees exists so all contracts should include language making clear that all such control tests and control rests with one entity. While a bulletproof contract can be helpful evidence, what ultimately matters is whether the parties conducted themselves in accordance with the language of the contract.

When communicating expectations, allow the client to set the goal and to define the means of achieving that goal. Once management is delegated to another entity, a joint employer relationship will evolve. Alternatively, if one entity is to be the sole employer, all decisions regarding firing, hiring, and the way work is done has to be left to that entity. The contractual language must decide whether the employer indemnifies the client or the client indemnifies the employer and the resulting pricing and profit margin have to be calculated to accommodate this dedicated risk. If the client understands there is a transference of risk included in the cost of doing business, a meaningful arrangement can be created, with the division of risks and resulting exposure to the various wage and hour laws, employment laws, civil rights laws, and unemployment compensation laws being dedicated to a single entity rather than two entities. The result would be to make the employer an integral part of the client management team. The client could avoid the secondary exposure by having the employer make these decisions. This effort requires confidence, a substantial expenditure of time, and careful contract draftsmanship, but can result in long-term relationships where the employer is not simply another vendor to the client, but an integral part of the management and decision process.

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.

Case Law Update: Stolle v. Kent State University

Stolle v. Kent State University

stack-of-papers610 Fed. Appx. 476, United States Court of Appeals, 6th Circuit, May 1, 2015

Dr. Ronald Stolle, a non-tenure track faculty instructor in the Department of Finance for Kent State University (KSU) sued the College and several administrators alleging retaliation for exercising his First Amendment Rights. The facts of the case show that on January 8, 2011, Dr. Stolle wrote a three page letter to the Speaker of the Ohio House of Representatives and other legislators on KSU Department of Finance letterhead. The letters addressed reform measures on higher education. Dr. Stolle said that these letters constituted his personal opinions. Dr. Stolle’s use of the College’s letterhead was actually a violation of University policy as any and all dealings with government had to be approved under the direction of the president of the University. The Dean of the College of Business requested that the Chair of the Finance Department have a meeting with Dr. Stolle to advise him of the breach of University policy by use of the KSU letterhead. The meeting took place. Dr. Stolle maintains that he was advised to cease and desist all communications with legislators. The Finance Dean disagreed that this was stated and indicated Dr. Stolle was told to no longer use KSU letterhead for such communications. Dr. Stolle wrote additional letters to the Columbus Dispatcher and Cleveland Plain Dealer advocating the abolition of tenure at state universities. Dr. Stolle’s appointment was still renewed for the 2011-12 academic year.

In January of 2012, the University, citing budget deficits, did not renew Dr. Stolle’s academic appointment in 2012. The University denied that Dr. Stolle’s letters to legislators or letters to the editor had anything to do with the non-renewal of his position.

The Court granted the College and several administrators Motion for Summary Judgment but did not dismiss the case against the Chair of the Department which went to trial. The trial against the Chair of the Department was confined to the issue of whether the Chair retaliated against Dr. Stolle in the exercise of his First Amendment rights. After a four day trial, a unanimous jury found that Dr. Stolle failed to prove the Department Chair’s decision not to renew his employment contract was retaliatory for exercising his First Amendment rights.

On appeal, the United States Court of Appeals for the Sixth Circuit found that Dr. Stolle failed to prove that he suffered an adverse action and that he did not make out a prima facie case of First Amendment retaliation. The Court found that the primary focus of the meeting where Dr. Stolle was notified of policy violations concerned his use of the College’s letterhead to communicate with legislators. Dr. Stolle also admitted that no one ever told him his job was in jeopardy.

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.

Attorney Joins Livonia Office

Jennifer RichardsWe are pleased to announce that Jennifer A. Richards has joined our Firm as an attorney in our Livonia office.

She focuses her practice on municipal law, insurance defense, law enforcement defense, and litigation and appeals. Ms. Richards writes briefs for submission to all levels of state and federal courts, arguing cases in all levels of state and federal courts of appeals, and performing research for all areas of law handled by the Firm.

Prior to joining CMDA, Ms. Richards served as a research extern at the Michigan Court of Appeals drafting research reports and proposed opinions for Michigan Court of Appeals’ judges in criminal cases.  Additionally, she worked as a student intern in the University of Detroit Mercy School of Law Veterans Clinic assisting military veterans with their benefit requests before the Veterans Administration.

Ms. Richards may be reached at (734) 261-2400 or jrichards@cmda-law.com.