Post on 15-Aug-2020
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Welcome
The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer.
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616.831.1704
baumanm@millerjohnson.com
Mary V. Bauman
ACA Update
News Flash: The ACA hasn’t gone away
Yes, the individual mandate penalty is going away after the end of this year
However, the employer pay or play mandate is still in effect for large employers
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Last year the IRS began issuing proposed pay or play penalty assessments (also known as “ESRP,” employer shared responsibility payments) with respect to calendar year 2015 2015 was the first year that the pay or play was in
effect
The IRS compared an employer’s filed 1094-C and 1095-Cs with the information from the exchanges as to which individuals were enrolled and received a premium tax credit
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To date, Miller Johnson has represented over 30 employers in responding to these alleged assessments
Nearly $50 million has been at issue
Our clients have been able to successfully defend these assessments
The IRS plans to begin issuing assessments this fall with respect to calendar year 2016
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Another misunderstanding:Congress has not repealed the ACA prohibition on
pre-existing condition exclusions or limitations under employer group health plans
Employers continue to be prohibited in imposing pre-existing exclusions or limitations under their group health plans
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The big unanswered question is what changes to the ACA can we expect going forward?
Several bills are pending in Congress. Whether the bills will pass, particularly in an election year, is uncertain.
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The changes can be grouped into the following general areas: Repeal employer pay or play penalty for 2015
through 2018
Further delay Cadillac tax from 2022 to 2023
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Changes to preserve HSA eligibility:Allow HDHP to cover first $250 single/$500 family
of specified services such as telemedicine expenses before deductible is satisfied
Permit employees to receive certain items and services through onsite or retail clinics before reaching HDHP deductible
Employees would be eligible for an HSA even if the employee’s spouse was enrolled in a general purpose medical FSA as long as the FSA did not reimburse any of the employee’s expenses
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Any bronze or catastrophic plan purchased on the exchange would be considered a qualified HDHP for HSA eligibility purposes
All employees enrolled in Medicare Part A only (and not Part B or D or a Medicare Advantage Plan) would still be HSA eligible
The employee could receive certain qualified concierge services before reaching the HDHP deductible and still be HSA eligible
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Changes to increase HSA contributions Increase HSA annual contributions limits to align
with the HDHP maximum out-of-pocket limits ($6,750 single / $13,500 family for 2019)
Allow both spouses to make age 55 catch-up contributions to the same HSA
Restore FSA / HRA transfers to an HSA
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Changes to expand tax-free distributions from an HSADrugs could be reimbursed even if not prescribed
by a physician (also would apply to medical FSAs)
Expenses incurred up to 60 days before HDHP / HSA established
Gym memberships and exercise classes (also would apply to medical FSAs and potentially, employer group health plans)
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269.226.2979
korytoj@millerjohnson.com
John F. Koryto
Legal Trends Impacting The Workplace
Immigration Policies And Procedures Affecting Employers
NLRB Developments
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Congressional gridlock at federal level There have been no major changes in employment
law through legislation at the federal level
State law makers pushing aheadMany important employment law changes have
come at the state or municipal level
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Medicinally available:Michigan and 30 more States and the District of
Colombia have either approved or enacted legislation
legalizing marijuana for medicinal purposes
Recreationally available:Alaska, California, Colorado, Maine, Massachusetts,
Oregon, Nevada, Vermont, Washington
What does it all mean?While it is still illegal under federal law, Michigan and
other state laws will create issues in the workplace
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Michigan and other states are expanding paid sick leave benefits Michigan Earned Sick Time: Accrual of 1 hour for every
30 hours worked
Nevada: Protected time off for domestic violence (while not sick leave per se, a growing number of states are granting leave for this reason)
New York: Expanded paid sick leave law to cover situations where an employee or family member is a victim of a family or sexual offense, or stalking
Other: California, Maryland, New Jersey, Oregon, Rhode Island, and Washington expanded paid leave policies
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Several states and cities have passed laws forbidding questions about salary history in interviews to push for pay equity among men, women, and minoritiesCurrently enacted or approved: Connecticut,
California, Delaware, Massachusetts, Oregon, New York City, Philadelphia, Puerto Rico, and San Francisco
Pending Legislation: Idaho, Maryland, New York, Rhode Island, Texas, and Virginia
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Workplace sexual harassment has taken center stage With the prominence of the #MeToo movement, there has
been a renewed focus on sexual harassment in the workplace and a push by many state legislatures to address the problem with new laws
Prevention policies and training Required written anti-harassment policy – California, Maine,
Massachusetts, New York, Rhode Island, and Vermont. Some states also require a certain amount of training hours for certain groups of employees (e.g., supervisors)
Mandatory training - passed in California, Connecticut, New York and Maine. With bills also introduced in Delaware, Pennsylvania, Rhode Island, and Virginia
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Predictive schedulingNew York City (No. 1395 & 1396), Oregon (SB 828),
& Emeryville, CA Resolution (No.17-013 & 17-160)
Social Media Policy - Vermont (HB 462) Prohibits employers from requiring or requesting
that employees or applicant disclose a social media account, access in employer’s presence, change account privacy settings, etc.
Immigration - California (AB 450) Unless otherwise required by federal law, employers
are prohibited from consenting to ICE access to worksite and records
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Employer sponsored immigration petitions facing extensive processing delays, record levels of request for additional evidence, and record levels of visa petition denials – Plan Ahead!
Department of Labor audits of employer immigration filings, and required record keeping are increasing – make sure records are in order!
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ICE enforcement activity and I-9 audits dramatically increased – conduct self-audits and fix problems now!
Social Security mismatch letters to again be issued Spring 2019 – new enforcement proposal threatens employers with increased fines!
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Many pro-immigration groups and growing numbers of U.S. employers, have complained an “invisible wall" has been built to effectively reduce immigration to the U.S., this barrier is blocking many highly skilled employer sponsored immigrants
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The bricks in this “invisible wall” include:New no deference rule, meaning no deference is
afforded to previous approved petition for employment based immigration benefits
Restrictive interpretation of who qualifies as a “specialized knowledge” worker
Returning workers counted toward the annual H-2B visa program quota
Canceling new regulations to update/expand investor and entrepreneur visa requirements
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Proposed rulemaking for joint employer test Possess and exercise substantial, direct and
immediate control over the essential terms and conditions of employment
In a manner that is not limited and routine
Looking for public comment on Purple Communications –employee use of employer email
Already announced a much more employer-friendly standard for handbook policies
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The Board overruled Lutheran Heritage
“Mere maintenance” of neutral employment policies, work rules, and handbook provisions will no longer turn on a single inquiry
Instead, the Board will take into account two things:1. The nature and extent of the potential impact on
NLRA rights
2. The employer’s “legitimate justifications” associated with the rule
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In June, the Board’s GC issued a Memo offering guidance on handbook rules
Analyzes common rules and categorizes as: lawful, unlawful, and requiring individual scrutiny
Among the lawful rules: Civility rules
No photography or recording rules
Insubordination rules
Confidentiality rules
Disloyalty rules
Disruptive behavior rules
Rules against misrepresentation
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269.226.2957
willeys@millerjohnson.com
Sarah K. Willey
Marijuana – Holy Smokes
Criminal History
Michigan Minimum Wage And Paid Sick Leave
Sexual Orientation And Gender Identity
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1930s
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Nov. 22, 2010 cover of TIMECover Credit: Photographs by Jeff Redel
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MMMA permits the possession, cultivation, manufacture and use of marijuana (and paraphernalia) to treat or alleviate a registered patient’s debilitating medical condition or symptoms The MMMA does not: Regulate private employment Protect Michigan employees from disciplinary action
for otherwise lawful use of medical marijuanaCreate any obligation by employers to accommodate
medical marijuana
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Marijuana use, possession and sale still illegal under federal law
To date, the USDOJ has not prosecuted for legitimate medical marijuana use
Attorney General Jeff Sessions is not a marijuana fan: “Slightly less awful than heroin”
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On November 6, Michigan voters will have the opportunity to legalize recreational marijuana Specifically, the possession, use, and cultivation of
marijuana by people who are at least 21 years old
Buy 2.5 / Keep 10 / Cultivate 12
If approved, Michigan would be the ninth state to legalize marijuana (AK, CA, CO, ME, MA, NV, OR and WA)
Highly likely to pass
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What this does NOT mean for Michigan employers The proposal does not require an employer to
permit employees to possess or use marijuana in the workplace
The proposal does not prohibit an employer from disciplining an employee for violating a workplace drug policy or for showing up for work with marijuana in his or her system
Whole point is to regulate like alcohol
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One huge difference Employers can test for impairment with alcohol
One huge problemMarijuana stays in the system for a looong time
Urine tests can detect THC for up to 13 days
Hair tests can detect more than 30 days after use
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What this DOES mean for Michigan employers More employees will have marijuana in their system
while at work
More employees will talk about using marijuana
Reasonable suspicion of marijuana in the system vs. reasonable suspicion of impairment
Positive test results will increase
CO: 20% / WA: 23% / NV: 43%
Employers will have difficulty enforcing their policies without casting a wide net
Safety v. staffing
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We have talked in years past about whether employers must consider applicants with a criminal background
Now many employers are considering the flip side: we’d like to hire applicants with criminal backgrounds—what are the risks?
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Negligent hiring / retentionA common law claim that you, the employer,
breached a duty you owed to keep an employee or third party safe (or safeguard their property)
A recognized cause of action in Michigan
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Negligent hiring / retention1. The employer knew or should have known that
the employee had committed similar acts before (on or off the job)
2. The employer had reason to believe that the employee had the propensity to commit the same or a similar act again
Bottom Line: The harm must be foreseeable
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Negligent hiring / retention The connection must be a close one
Brown v Brown
Foreman raped a security guard
No prior criminal record / No history of violent behavior
But: repeated crude, sexually explicit comments to the security guard, which she reported
Michigan Court of Appeals: employer is liable
Michigan Supreme Court: employer is not liable—no knowledge of employee’s propensity to rape
Very tough burden for plaintiffs
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Certificate of employability Issued to prisoners upon release if they: Successfully complete a career and technical education
course Had no major misconducts in the 2 years prior to release Had no more than 3 minor misconducts in the same
period Achieved a sufficient score on a job skills assessment
test
Proof that the employer met its duty of care Full defense against negligence claimObviously additional considerations . . .
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The One Fair Wage proposal
Minimum wage hike $10 – 1/1/19
$10.65 – 1/1/20
$11.25 – 1/1/21
$12 – 1/2/2022
2023 – adjusted annual basis on consumer price index
Notable provision: eliminated tipped workers minimum wage
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Earned Sick Time proposal Effective January 1, 2019
Can satisfy requirements with existing PTO, vacation, sick time policies
Accrual of 1 hour for every 30 hours worked
Must be available for use immediately after accrual
Can be used in the smallest increment that the payroll system uses to count time (likely .25/hr)
Mandatory carryover from one year to the next
Allowed maximum usage of 40 hours per year
No obligation to pay upon termination of employment
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The Republican-led Senate and House passed the proposals into law in a move described by critics as an “attack on democracy”
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If passed as a ballot initiative, changes require ¾ majority in House and Senate
If passed by legislature, simple majority required for amendments
Republicans are not giving away details, but one thing seems certain….
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Senate Majority Leader Arlan Meekhof “We’ll consider different options and a
whole suite of things we think are more friendly to Michigan, to make sure that workers are indeed cared for, and that still provide for economic development moving forward.”
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According to a 2016 survey by Greenberg Quinlan Rosner Research, 35 percent of likely voters in the United States “personally know or work with someone who is transgender.”
That's more than double the 17 percent who answered yes when asked the same question in 2014
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35%
The written law has not changed….
But interpretation of the law has Federal courts
EEOC
Local ordinances
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Title VII protected characteristics – race, color, religion, sex and national origin
Michigan’s Elliott-Larsen Civil Rights Act protected characteristics – religion, race, color, national origin, age, sex, height, weight, familial status and marital status
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Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) U.S. Supreme Court upheld a violation of Title VII based on sex stereotyping – at the time a novel legal theory
Evaluators voting on her partnership eligibility described female employee Hopkins as “macho” and complained that she “overcompensated for being a woman” by not dressing / acting feminine enough
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Supreme Court found that discrimination based on failure to conform to gender stereotypes(non-conformance with gender social norms regarding behavior, dress or grooming) is discrimination “based on sex” prohibited by Title VII
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March 7, 2018– 6th Circuit reverses the dismissal of a gender identity discrimination lawsuit filed by the EEOC against a Michigan funeral home
Funeral home argued that it was protected by its religious beliefs and should be allowed to enforce its dress code
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Court – decision to fire employee because she intended to dress as a woman was sex-based discrimination and unlawful under Title VII
Both transgender and transiting status are protected by Title VII
Rejected funeral home’s religious exercise argument because they were based on “presumed biases” and were not supported by evidence. Cannot rely on customers’ presumed biases to establish a religious freedom.
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EEOC accepts gender identity and sexual orientation discrimination charges
EEOC has filed (and is looking for) lawsuits to sue private employers under Title VII for discrimination based on gender identity / sexual orientation
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Over 25 local municipalities have Local ordinances in Michigan prohibiting LGBT discrimination by private employers. Examples-- Ann Arbor Oshtemo
East Lansing Saugatuck
Lansing Douglas
Kalamazoo Wayland
Battle Creek Detroit
Adrian Mount Pleasant
Muskegon Albion
Portage E. Grand Rapids
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Michigan AG Bill Schuette: Michigan’s civil rights law does not protect gay and transgender people
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Schuette, Currently Attorney GeneralCandidate for Michigan gubernatorial race in
November
MDCR had voted to expand the Commission’s interpretation of Elliott-Larsen to include sexual orientation and gender identity
Republican leaders in House and Senate requested AG opinion
Schuette – law does not specifically mention sexual orientation or sexual identity
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