Acho Attends Ohio State Legends Dinner for UM-OSU Week

jim-acho-osu-1Jim Acho, a partner in our Livonia office represents more than former Detroit Lions and ex-UM players. In fact, he represents more ex-Ohio State players than any other school and has handled matters for six former OSU All-Americans, ranging from contracts, employment agreements, to litigation.

Tom Skladany, 3 time All American at OSU (1974-76) and a former President of the NFL Alumni Association as well as Ohio State Football Alumni Association, invited Jim as his guest for the John Hicks Unlimited Love/Unverferth House dinner which is held annually in Columbus the week of UM-Ohio State game, and jim-acho-osu-2raises funds for cancer research through the Ohio State Medical School.

For three hours every year, Jim admittedly hates Ohio State, but the other 364 days and 21 hours, he has a great fondness for both OSU and the great legends he has represented and continues to represent. CMDA and Jim both enjoy and appreciate the relationship with Tom Skladany and look forward to many more years representing former Ohio State players and coaches.  

The Unverferth House, the umbrella for which the John Hicks Unlimited Love dinner is held, is a noble charity named for two great men of deep character and is a worthy cause. For more information, please visit: http://unverferthhouse.org/ 

Jim Acho focuses his practice on sports and entertainment law, labor and employment law, law enforcement defense, and plaintiff’s personal injury.  He may be reached at (734) 261-2400 or jacho@cmda-law.com.

 

 

Legal Update: Implications of the Recently Enacted Medical Marihuana Facilities Licensing Act on Municipalities

marijuana-legalizationWith the recent legalization of recreational marihuana in Massachusetts, Maine, Nevada and California, the total number of states in which recreational marihuana use is legal stands at eight. Twenty states have legalized marihuana for medicinal use. While nationwide legalization is far from a foregone conclusion, with over half of the country legalizing marihuana use in some form the marihuana industry is poised to be the next big growth industry. However, in Michigan, prospective marihuana entrepreneurs are in a holding pattern as the state comes to terms with a statutory scheme plagued by gray areas.

In September 2016, in an effort aimed at resolving some of the ambiguities in the Michigan Medical Marihuana Act, Governor Rick Snyder signed three bills into law (House Bills 4209, 4827 and 4210). These bills are aimed at creating a licensing and regulatory framework for medical marihuana, which must be implemented by December 15, 2017. Currently, the Department of Licensing and Regulatory Affairs is in the beginning stages of establishing the new regulatory framework and it is no longer accepting applications or issuing licenses for marihuana facilities. In the meantime, prospective marihuana facilities must work with their local governments to procure the licenses and permits necessary to operate a marihuana facility.

Section 205 of House Bill 4209, now known as the Medical Marihuana Facilities Licensing Act, imposes a licensing mandate on municipalities (defined as a city, township or village).  Specifically, Section 205 requires municipalities to adopt an ordinance authorizing any marihuana facility. Municipalities may also, through ordinances or zoning regulations, limit the type of marihuana facilities and/or the number of facilities operating within its borders. However, municipalities are prohibited from imposing regulations regarding the purity or pricing of marihuana or conflicting with statutory regulations for licensing marihuana facilities. Municipalities may also impose on marihuana facilities an annual, nonrefundable fee of up to $5,000 to help defray administrative and enforcement costs.

Within 90 days of receipt of notification that a person or entity has applied for a license to open a marihuana facility, municipalities must provide the following information to the newly created Medical Marihuana Licensing Board:

  • A copy of the local ordinance authorizing the facility;
  • A copy of any zoning regulations that apply to the proposed facility; and
  • A description of any violation of the local ordinance or zoning regulations committed by the application if those violations relate to activities licensed under the act.

This information is exempt from disclosure under the freedom of information act.

Licenses to operate a marihuana facility are exclusive to the licensee and may only be transferred upon approval from the municipality and the Licensing Board. Failure to obtain approval is grounds for suspension or revocation of the license.

Municipalities in which marihuana facilities operate receive 25% of the funds in the newly created Medical Marihuana Excise Fund, based on the number of facilities operating in the municipality. Counties receive a greater portion. Licensees are required to submit annual financial statements to the municipality.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.

Attorney Joins Traverse City Office

We are pleased to announce that Matt Cross has joined our Firm as an attorney in our Traverse City office.

He focuses his practice in the areas of insurance defense, law enforcement defense and litigation, and municipal law. Mr. Cross has experience handling employment law, personal injury defense, business transaction and municipal issues and has earned dismissals in each of these areas.

He received a Juris Doctor degree from Wayne State University Law School and a Bachelor of Science degree, magna cum laude, from Ferris State University.

He may be reached at (231) 922-1888 or mcross@cmda-law.com.

An Overview for Termination Decision Making

Patrick R. Patrick Sturdy 2016Sturdy is a partner in our Livonia office where he concentrates his practice on education law, intellectual property, business law, and employment and labor law. He may be reached at (734) 261-2400 or psturdy@cmda-law.com.

An Overview for Termination Decision Making

employee-termination-photoThe following overview should be considered in making the decision to terminate an employee legally defensible. The overview is limited to the information which should be considered during the decision making process for terminating an employee. Each employment decisions rests upon its own facts and may require independent analysis. Reliance upon this overview is not a substitute for legal advice from qualified counsel familiar with the specific facts and circumstances.

With that said, the decision making process should include review of the following documents prior to making any decision:

  • The employment contract;
  • The employee’s personnel file;
  • Relevant policies and procedures, including employment policies;
  • The discipline history of other employees for similar conduct; and
  • Any documentation surrounding the current issue, including performance issues.

Decision makers should personally review the above documents as opposed to relying upon a summary provided by another employee or legal counsel.

In reviewing the above documents, the decision maker should also ascertain what type of employment relationship exists between the College and the employee. If the employee has no written contract, they are generally considered an at-will employee who can be terminated with or without cause so long as the employment decision is not based upon an illegal reason, such as: discrimination, whistleblowers protection activity or exercising other legal rights such as Family Medical Leave. See Note 1 below.
If the employee has a satisfaction contract, then the employee can be terminated if the employee is dissatisfied with the employee’s performance. A jury is not permitted to concern itself with whether the employer’s dissatisfaction is reasonable, but it may decide whether the dissatisfaction is insincere, in bad faith, dishonest, or not the real reason.

If the employee has a just cause employment contract, then the employee can be terminated if the decision maker can answer yes to all of the following questions:

1.    Was the employee aware of the College’s expectation and forewarned of the consequence for not meeting those expectations?

2.    Was the rule or policy at issue reasonably related to the orderly, efficient and safe operation of the College?

3.    Was the matter investigated fairly and objectively before discipline was issued?

4.    Was the employer given the opportunity to tell his/her side of the story?

5.    Has the College obtained substantial evidence of the employee’s violations or inappropriate conduct?

6.    Has the College applied its policies/procedures consistently and fairly?

7.    Is the degree of discipline imposed reasonably related to the offense, taking into account the employee’s work record and length of service.

After review the relevant documents and speaking with the employees involved, decision makers should be able to clearly articulate the rational for their decision. Answering the following questions will assist decisions makers in accomplishing this:

1.    State every act or omission of the employee that shows why an employment decision is necessary. This would include stating:

  • What did the employee do or not do that constitutes a failure to perform their job;
  • Is there a history of performance issues/behavior for this employee;
  • Is there a history of similar performance issues/behavior by other employees, and if so, how were they disciplined;
  • What Policy/Procedure did the employee violate and how did they violate it.

2.    Identify each and every document relied upon to make the decision, along with the information contained within each document which would support the employment decision. At a minimum, this should include:

  • The Employment Contract;
  • Employee’s Job Description;
  • Employees Personnel File;
  • Each College Policy or Procedure which applies;
  • Any other documents evidencing the acts or omissions of the employee; and

3.    Articulate the specific statements from each witness which the decision maker relies upon to make the employment decision.

4.    Identifying the notice the employee had regarding the rule or requirement that was violated.

5.    Explain the investigation that was conducted and why no further investigation was necessary.

6.    Is a Performance Improvement Plan possible? In other words, could the employee, given the chance, correct the employment problems?

7.    Verify that the decision is not based on, nor motivated by, race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, age (40 or older) or genetic information (including family medical history).

8.    Ensure that the decision is not based upon an employee’s reporting or threatening to report discrimination or some other suspected improper activity by the College, or participation in an investigation or lawsuit.

9.    Ensure that the employment decision is consistent with the College’s past employment decisions to make sure that all employees are treated the same;

10.    Finally, Determine that the College has complied with all requirements and procedure that might be imposed by the employment contract or the College’s policies.

Taking the time to answer these question during the decision making process will go a long way toward helping the College develop a legally defensible position should the termination decision be challenged in Court or before a federal or state Agency.  Please feel free to contact me should you have any further questions regarding this overview.

NOTE 1: The above analysis should include review of the following statutory schemes protecting employees:

Americans with Disabilities Act
•    Is the employee physically or mentally disabled?
•    If so, were attempts made to reasonably accommodate the employee’s disability?
•    Were reasonable accommodation measures well documented?

Title VII / California’s Fair Employment and Housing Act
•    Is the employee being treated in the same manner as other employees in similar situations?
•    Have other employees been given more chances before being terminated for the same or similar reasons as this employee?
•    If so, are there legitimate, non-discriminatory reasons for treating this employee differently than other employees?

Pregnancy
•    Is the employee pregnant? Employees are entitled to four months off for pregnancy related disabilities.
Workers’ Compensation
•    Has the employee filed a workers’ compensation claim? Terminating an employee who has filed a claim, intends to file a claim, or has testified in a worker’s compensation hearing could be considered workers’ compensation discrimination.

Retaliation
•    Has the employee reported any illegal activity of the company to a state or federal agency? Even if the company is not in fact acting illegally, the termination could be seen as retaliation for “whistle-blowing.”
•    Has the employee participated in any official investigation of the employer (i.e., wage or safety violation) or testified against the employer in an unemployment insurance or other hearing?
•    Is the termination in retaliation for the employee’s exercise of protected personal rights, such as freedom of speech or political activity?

 

Occupational Safety and Health Act: New Rules for Injury and Illness Reporting

Gerry Davis 2016The workplace environment is governed by the Occupational Safety and Health Act (OSHA).  The United States Department of Labor’s Occupational Safety and Health Administration recently issued a final order that will require employers and many high-hazard industries to electronically submit injury and illness data to OSHA.  Such reporting is already required to be tracked, but the reporting aspect of such injury or illness is what is new.

The new rule prohibits, “employers from using drug testing or the threat of drug testing as a form of retaliation against employees who report injuries or illnesses.”  The new rule also “clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting,” additional to incorporating the existing prohibition on retaliation for reporting.  OSHA will then share the injury and illness data on its website as the organization believes such posting of injury and illness data will provide valuable information to employers, employees, employee representatives (unions) and researchers.

Accordingly, employers must be aware of the new rule and comply with the reporting requirements.  Employers must review “post-accident drug and alcohol testing policies,” since they will be more strictly scrutinized by OSHA going forward.  Some employers administer a drug and alcohol test to anyone that may have been involved in an incident or event resulting in injury or illness to an employee.

Accordingly, any policy that automatically tests employees who suffered work-related injuries will be targeted by OSHA because such policies may be viewed as deterring employees from workplace injury reporting.  The testing must be limited to circumstances where the employee likely contributed to the reported injury or illness.  If, for example, a hi-lo driver in a plant injured a co-worker, it is appropriate that the driver of the hi-lo be examined for drug and alcohol while the co-worker that was injured by the hi-lo driver probably should not be similarly examined.  The policy for alcohol and drug testing must be designed to accurately identify the impairment caused by the drug or alcohol use.

The employers must also consider tests that only measure very recent drug use to determine if an employee was impaired by alcohol or drugs at the time of the accident by use of tests which visually show how much drugs or alcohol caused impairment at the time of the accident, rather than merely be designed to show how much drugs or alcohol are in the employee’s system.

Employers should consider avoidance of post-accident drug and alcohol testing in favor of implementing reasonable suspicion testing instead, or using random drug and alcohol testing programs to deter drug use before an accident actually occurs.  Employers will be required to file state and federal reports for drug testing, but may continue to test for drugs and alcohol.  However, the employer is reminded not to retaliate in any way against an employee who reports workplace injury or illness.  Retaliation can include change in workplace duties, status, compensation, hours of work and other conditions of employment.  Consequently, an employer should avoid a mandatory drug testing policy after report of injury, unless justified by the circumstances, behavior of the workers, and other facts.

The motivating reason for this change of policy is to provide employees with the ability to truthfully and completely report workplace injuries and illnesses without fear of retaliation.

Attorneys from CMDA are available to evaluate workplace policies to help assure compliance with this and other laws.  OSHA provides fines of up to $12,471 for serious violations of these rules.

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.

Hallaq Sworn In as Attorney

brandan-hallaq-swearing-in-ceremonyCongratulations to Brandan A. Hallaq who was sworn in as an attorney on November 1, 2016 during a ceremony in Presiding Judge Hala Jarbou’s courtroom in Oakland County Circuit Court. The swearing-in ceremony is a significant event in the life of a lawyer and signifies the day when years of hard work and determination reach fruition.

Mr. Hallaq joined CMDA in 2015 as a law clerk.  Attorneys and support staff immediately took to his thoroughness, dependability and kind personality.  When he passed Michigan’s bar exam last month, we were delighted he accepted the Firm’s offer to continue his legal career at CMDA.

Mr. Hallaq focuses his practice in the areas of business and real estate law.  He received a Juris Doctor degree from Wayne State University Law School and a Bachelor of Arts degree from Wayne State University.

He may be reached at (734) 261-2400 or bhallaq@cmda-law.com.