Employment and Labor Law

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The employment and labor law practice at Cummings, McClorey, Davis & Acho, P.L.C. (CMDA) includes a full range of services, including employee benefits, union negotiations, wrongful discharge and discrimination claims, ADA and FMLA compliance issues, workforce reductions, litigation defense representation, alternative dispute resolution, and regulatory compliance services. Public and private organizations turn to our expert legal team for assistance with navigating and complying with this complex area of law.

EEOC and MDCR Charges
Employment Litigation
Employment Litigation: Reducing the Risk
Freedom of Information Act (FOIA) and Open Meetings Act (OMA)
Grievance Arbitrations
Unfair Labor Practice Charges before Administrative Agencies
Union Negotiations and Labor Contract Administration
Whistleblower Protection Act
Workers’ Compensation Claims
  • Cautionary Tale – Employee’s Profanity Laced Facebook Post is Protected Activity in a Recent Federal Court Decision Elizabeth Rae-O'Donnell
    On April 21, 2017, the Second Circuit Court of appeals in NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2nd Cir. 2017), upheld the National Labor Relations Board’s conclusion that a terminated employee’s profanity based comments about his supervisor on Facebook were not so egregious as to exceed protection under the National Labor Relations Act ...
  • A Few Common Reminders of the Family Medical Leave Act (FMLA) Suzanne Bartos
    The Family Medical Leave Act (FMLA) allows an eligible employee to take an unpaid, job-protected leave for a specified family and medical reason with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.  A few of the common points of FMLA that may be ...
  • Grant Obtains Dismissals on behalf of Judge and Prosecutor CMDA Law
    Greg Grant, an attorney in our Traverse City office, recently obtained dismissals on behalf of a Northern Michigan judge and prosecutor in two separate civil rights cases. In both cases, the courts awarded his clients all of their attorney fees and costs. Mr. Grant aggressively defends judges, attorneys, and municipalities as a regular part of ...
  • Municipal Immunity under the Family and Medical Leave Act Matt Cross
    The Family and Medical Leave Act (FMLA) was enacted, in part, “to balance the demands of the workplace with the needs of families…in a manner that accommodates the legitimate interests of employers…” 29 USC 2601(b). The Act entitles eligible employees to take leave: (A) Because of the birth of a son or daughter of the employee and ...
  • Occupational Safety and Health Act: New Rules for Injury and Illness Reporting Gerald C. Davis
    The 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 ...
  • Changes in Overtime Rules for Michigan Employers Christopher G. Schultz
    The Fair Labor Standards Act (FLSA) has changed the overtime rules for certain salaried workers, which will be applicable to Michigan employers.  The changes are to be implemented on December 1, 2016.  Michigan business owners need to start planning now in order to avoid scrambling in November.  Many Michigan closely held businesses classify salaried employees as ...
  • Sixth Circuit Holds Dismissal of Firefighter’s Retaliation Complaint Elizabeth Rae-O'Donnell
    On June 22, 2016, the Sixth District Court of Appeals unanimously issued a decision and order affirming the United States District Court’s dismissal of a firefighter’s two count retaliation complaint against a local municipality, four former and current Trustees, and the Fire Chief. Plaintiff, who is of Asian descent, submitted an application for the vacant Fire ...
  • U.S. Department of Labor Releases Final Overtime Rules Gerald C. Davis
    The Department of Labor recently released the final rules regarding the payment of overtime to employees, governed by the Fair Labor Standards Act (FLSA).  While the new rules were to go into effect in June of 2015, a large number of modifications changed the original draft, and the final rules are now made effective December ...
  • Attorney’s “FSLA Final Rule and its Impact on the Government Employer” Article Featured in MIPRIMA Publication CMDA Law
    The June 2016 publication of the Michigan Public Risk Management Association (MIPRIMA) features an article written by Suzanne Bartos, an attorney in our Livonia office.  The informative article outlines the recently released rules regarding the payment of overtime to employees and its impact on the government employer. To read the complete article, please click here. Suzanne P. ...
  • An Employee’s Motivation is No Longer Determinative in a Whistleblower Protection Claim Suzanne Bartos
    The Michigan Supreme Court has recently held that the employee’s motivation is no longer a determining factor in whether the Whistleblower Protection Act (WPA) protects the employee from an adverse employment action. Since the underlying purpose of the Act is to protect the public, municipalities are most vulnerable to a WPA claim. If government officials, who ...
  • Attorneys Present on Bullard-Plawecki Employee Right to Know Act Andrew J. Brege
    Attorneys Haider Kazim and Andy Brege were at Bay College in Escanaba earlier this week giving a training presentation to MMRMA members. The training addressed the maintenance and disclosure of personnel files under the Bullard-Plawecki Employee Right to Know Act and highlighted the United States Supreme Court decisions of Brady v Maryland and Giglio v United ...
  • Employee Handbooks are Essential for Small Businesses Christopher G. Schultz
    Clients frequently question the value of preparing an employee handbook.  Many small business owners do not provide employees with an updated, legally-sound handbook due to the anticipated time needed to develop it and/or the belief that it is not necessary since they have good relations with their employees.  Providing all employees with information on the ...
  • Employers Face More Compliance Challenges Gerald C. Davis
    This past January, the Michigan Unemployment Insurance Agency (MUI) mailed a new determination to employers – Form UIA 6367, Notice of Determination of Employer Charging (Notice). The MUI uses this form to notify employers that they have the potential to be charged for (unemployment) claims for which the employer does not provide timely or adequate ...
  • 2015 Year in Review: Monumental Milestone Recognized, Skilled Attorneys Hired, and Remarkable Anniversaries Celebrated Christopher G. Schultz
    As a new year is upon us, we reflect back on 2015 and the successful year we had at CMDA. We recognized a monumental milestone, hired several attorneys, and celebrated some remarkable anniversaries. CMDA was honored to have celebrated our 50th Anniversary in 2015. This monumental anniversary would not have been possible without Owen Cummings, the ...
  • Should Michigan Employers “Ban the Box” and Remove the Criminal Conviction Question from Applications? 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. ...
  • Strategies to Minimize Joint Employer Liability Gerald C. Davis
    Employers 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 Legislation Update Jennifer Sherman
    RECENTLY ENACTED CALIFORNIA LAWS 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 ...
  • New Rules Affecting Workers and Employers by the U.S. Department of Labor Gerald C. Davis
    Many 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. Is the work ...
  • Attorneys Win Case for Local Municipality: Plaintiff Sought $1,020,000 in Damages, Awarded $0 Linda Davis Friedland
    In a case recently won by Linda Davis Friedland and Elizabeth Rae O’Donnell, a firefighter sued a local municipality, five former and current Trustees, and the Fire Chief, under Title VII of the Civil Rights Act of 1964 and Michigan’s Elliott-Larsen Civil Rights Act (ELCRA).  Plaintiff sought $1,020,000.00 in damages and was awarded nothing. Plaintiff, who ...
  • Attorney Jim Acho Predicts NLRB Ruling on College Athletes’ Unions James R. Acho
    On August 17, 2015 the National Labor Relations Board (NLRB) blocked a historic bid by Northwestern University football players to form the nation’s first college athletes’ union, dealing a blow to a labor movement that could have transformed amateur sports. It cites the fact that labor law only allows the NLRB to look at private-sector ...
  • Acho Interviewed by Law360 Magazine on Deflategate Case James R. Acho
    Jim Acho, a senior attorney in our Livonia office, was interviewed by Law360 Magazine regarding the Tom Brady Deflategate issue and professional athletes’ options in federal court. The article, Even in Deflategate Pro Athletes’ Court Protection Limited, outlines how federal courts have recently played a large role in professional athletes’ employee disputes as NFL players ...
  • EEOC Bans Discrimination against Sexual Orientation in the Workplace Elizabeth Rae-O'Donnell
    On July 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) ruled that all job discrimination based on sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. This historic 3-2 decision does what Congress and most courts so far have refused to do: ban discrimination against gays ...
  • Gov. Snyder Signs Law to Bar Municipal Wage, Employment Rules Elizabeth Rae-O'Donnell
    On June 30, 2015, Governor Rick Snyder signed HB 4052 into law which stops local governments from adopting, administering or enforcing future ordinances or policies that require local businesses to pay wages, fringe benefits or leave time that exceed State or Federal requirements. The bill will take effect on September 28, 2015. Currently, Michigan’s minimum ...
  • Litigation: How to be Better Prepared Douglas Curlew
    Under the American legal system, there is no realm of human activity that fails to spawn litigation. The financial cost of a potential judgment is easily recognized. Less understood is the cost of time, energy, and resources (financial and human) of the litigation process itself. Even the defendant who avoids judgment by “winning” his case ...
  • Telecommuting May Not be a Reasonable Accommodation Under the ADA if On-Site Attendance is an Essential Function of the Position Elizabeth Rae-O'Donnell
    On April 10, 2015, a full panel of the Sixth Circuit Court of Appeals (covering Michigan, Kentucky, Ohio, and Tennessee) decided in an unpublished decision that a former Ford employee, Jane Harris, was not a qualified individual with a disability because her excessive absences prevented her from performing the essential functions of a resale buyer. ...
  • E-Verify: Understanding Responsibilities and Rights CMDA Law
    E-Verify is a federal program that employers use to verify a new employee’s employment eligibility in the United States. The use of E-Verify has grown exponentially in the last few years and its use only continues to increase. According to the United States Citizenship and Immigration Services, just over 1,000 employers were enrolled in E-Verify ...
  • Public Act 152: Caught Between a Rock and a Hard Place Patrick R. Sturdy
    In 2011, the Governor signed into law PA 152 of 2011, known as the Publicly Funded Health Insurance Contributions Act, which caps the amount of money public employers, such as colleges, cities, townships and villages can pay towards employee health care. The law provides employers with two options for cost sharing. The default option is ...
  • Recent Changes to the Freedom of Information Act may Impact Local Communities Andrew J. Brege
    On December 19, 2014, the state legislature passed HB 4001, a bill significantly amending the Freedom of Information Act’s (FOIA) charging requirements and penalty provisions. The new rules are set to take effect on July 1, 2015. These new statutory rules will require most public bodies to revisit their FOIA policies and guidelines. The following ...
  • Public and Private Employers Subject to 50 Employee Threshold Under the FMLA: Does Unconditional Language in Employee Manual Create a Jury Question? Linda Davis Friedland
    Both private and public employers are subject to the Family Medical Leave Act (FMLA), which allows eligible employees to take up to 12 weeks of unpaid leave from their employment if they meet certain statutory requirements (employed for at least 12 months, and worked 1250 hours within the preceding 12 months). The FMLA defines a ...
  • Google Glass: Use of wearable technology in the workplace creates the need for updated workplace policies CMDA Law
    Wearable technology is becoming more and more present in our technologically-based society. Google Glass is “smart eyewear” featuring a small computer built into a pair of glasses. Google Glass functions much like a smartphone, but users see a visual display in their line of vision and operate the device with voice commands. The glasses provide ...
  • EEOC Releases Guidelines for Religious Dress and Grooming in the Workplace James R. Acho
    The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that prohibit employment discrimination. On March 6, 2014, the EEOC released a “Religious Garb and Grooming in the Workplace: Rights and Responsibilities” guideline that all employers, managers, and supervisors should review.  The EEOC reports that it received 3,721 charges alleging religious discrimination in 2013, more ...
  • Employee or Independent Contractor? UIA Adopts 20-Factor Test Gerald C. Davis
    Hiring workers can involve liability for homeowners and businesses alike, even if the workers hired are only part-time or temporary.  An employer should be careful when deciding to classify a worker as an employee versus an independent contractor.  The Internal Revenue Service (IRS) imposes severe penalties upon businesses and homeowners if a worker is misclassified as an ...
  • Return to Work Issues under the Family Medical Leave Act Thomas J. Laginess
    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? ...
  • Good News for Private Sector Businesses Thomas J. Laginess
    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 ...
  • Employers Need To Be Mindful of Anti-Retaliation Policy James R. Acho
    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 ...
  • Employer’s Right to View E-Mails vs. Employee’s Right of Privacy Gerald C. Davis
    With more and more workers relying on e-mail and other forms of electronic communication, there is a natural tendency to occasionally use the company e-mail for personal matters. In earlier issues of On Law, we summarized the employer’s right to view e-mails vs. the employee’s right of privacy. The rule has been: provided the employer provides ...
  • An Employer Roadmap to Getting through the State of Michigan Unemployment Compensation Maze Gerald C. Davis
    Whether you are a small, medium or large sized business owner or human resources professional, working your way through the State of Michigan unemployment process can be daunting at best. The fact that the state recently shortened the name of its agency from the Michigan Employment Security Commission to the less unwieldy Unemployment Insurance Agency ...