December, 2022 | Fraser Blog

Five Stories that Matter in Michigan This Week – December 30, 2022

NIL Legislation Takes Effect December 31, 2022

Michigan House Bill 5217 which was passed into law in 2020, takes effect December 31, 2022 and sets new standards for how student-athletes can earn compensation for the use of their name, image, and likeness (“NIL”) in Michigan.

Why it Matters: Student-athletes, covered higher education institutions, and businesses must ensure that NIL deal comply not only with NCAA rules and regulations, but also with the new standards that will apply in the State of Michigan starting in 2023. For example, higher education institutions are prohibited from paying a student-athlete compensation directly for the use of their NIL rights, or revoking or reducing a student-athlete’s athletic scholarship because they earned compensation from an NIL deal.

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CRA Unveils Cannabis Market Taxation and Regulatory Compliance Analysis Grant Program

Stemming from the state’s 2022-2023 budget, the Michigan Cannabis Regulatory Agency must award a grant to a selected party to start a program that is intended to analyze tax reporting, collection, and regulatory compliance within the Michigan cannabis market and provides up to $500,000 for performing the required work.

Why it Matters: Illegal cannabis flooding the market is still a major issue that is troubling Michigan’s cannabis market. This new program will identify relevant areas with information gathered from tax reporting to investigate for possible misconduct and other regulatory noncompliance.

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Michigan Department of Technology, Management and Budget Prevailing Wage Policy Upheld by Court of Claims

The Michigan Court of Claims sided with the state and ruled that DTMB did not violate the law when it implemented its prevailing wage policy on March 1, 2022.

Why it Matters: In July, 2021, the Associated Builders and Contractors of Michigan (“ABC”) filed a lawsuit against the State of Michigan with a motion for preliminary injunction asking the Court to enjoin DTMB from requiring prevailing wages for state contracts. ABC argued that Michigan cannot require the wage rate of its contractors because of the repeal of Michigan’s prevailing wage law in 2018. In October, the Michigan Court of Claims sided with the state. ABC has appealed the ruling. For the time being, pending the outcome of the appeal, DTMB’s prevailing wage policy remains in effect for construction projects financed in whole or in part by State of Michigan funds. Learn more on the subject.

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Bills Seeking to Expand Affordable Housing in Michigan Are Passed

Governor Whitmer signed a package of bills (Senate Bills 362, 364, 422 and 432) intended to support the development of more affordable housing units in communities across Michigan, with a particular focus on creating new housing units in cities.

Why it Matters: Lack of affordable housing is a big problem in Michigan and throughout the country. From an economic standpoint, when there is a lack of affordable housing, it makes it difficult for employers to attract and retain workers. Data from the Resilient Homes Michigan coalition says that Michigan is short about 203,000 affordable rental homes for the 320,000 renting households in the state that have incomes at or below 30% of the median income for their area.

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Officials Unveil $2 Million Grant to Support High-Tech Talent Workforce in Michigan

Earlier this month, Governor Whitmer along with officials from the Department of Labor and Economic Opportunity, Michigan Office of Future Mobility and Electrification, and the Detroit Regional Chamber, unveiled a two million dollar grant program to MichAuto to support and build up the high-tech talent workforce in Michigan.

Why it Matters: Investing in Michigan’s workforce and talent pipeline is key for the state to keep workers from leaving and relocating to other states. It builds on the state’s MI Future Mobility Plan to continue attracting businesses and workers to work in the state related to the future of transportation.

Related Practice Groups and Professionals

Higher Education | Ryan Kauffman
Business & Tax | Ed Castellani
Real Estate | Jared Roberts
Labor, Employment & Civil Rights | Aaron Davis

Michigan Department of Technology, Management and Budget Prevailing Wage Policy Upheld by Court of Claims

The directive established the following guidelines for when the payment of a prevailing wage is required:

“With the exception of lease build-outs, if a project greater than $50,000 involves employing construction mechanics (e.g., asbestos, hazardous material handling, boilermaker, carpenter, cement mason, electrician, office reconstruction and installation, laborer including cleaning debris, scraping floors, or sweeping floors in construction areas, etc.) and is sponsored or financed in whole or in part by State funds, state contractors must pay prevailing wage.”

According to the State of Michigan, prevailing wage rates are established for each County in Michigan through a process of submission and review of established wages, benefits, and training investments from bona fide employee and employer organizations.

In July, 2021, the Associated Builders and Contractors of Michigan (“ABC”) filed a lawsuit against the State of Michigan with a motion for preliminary injunction asking the Court to enjoin DTMB from requiring prevailing wages for state contracts.

ABC argued that Michigan cannot require the wage rate of its contractors because of the repeal of Michigan’s prevailing wage law in 2018.

In October, the Michigan Court of Claims sided with the state and ruled that DTMB did not violate the law when it implemented its prevailing wage policy. The court granted DTMB’s motion for summary disposition, resulting in the dismissal of the case.

ABC has appealed the ruling. For the time being, pending the outcome of the appeal, DTMB’s prevailing wage policy remains in effect for construction projects financed in whole or in part by State of Michigan funds. We will continue to keep you informed about new developments in this case.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.

Aaron L. Davis is Vice President and Treasurer, and Chair of Fraser Trebilcock’s labor law practice. He has litigation experience in a diverse range of employment matters, including Title VII, the Age Discrimination Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. You can reach him at adavis@fraserlawfirm.com or (517) 377-0822.

Five Stories that Matter in Michigan This Week – December 23, 2022

New Bills Passed to Expand Affordable Housing in Michigan

Governor Whitmer recently signed a package of bills (Senate Bills 362, 364, 422 and 432) intended to support the development of more affordable housing units in communities across Michigan, with a particular focus on creating new housing units in cities.

Why it Matters: Lack of affordable housing is a big problem in Michigan and throughout the country. From an economic standpoint, when there is a lack of affordable housing, it makes it difficult for employers to attract and retain workers. According to the Resilient Homes Michigan coalition, Michigan is short about 203,000 affordable rental homes for the 320,000 renting households in the state that have incomes at or below 30% of the median income for their area.

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Michigan Slips Slightly in Economic Benchmarking Report

Michigan dropped two spots, to 31st nationally, in the Business Leaders for Michigan’s annual benchmarking report that ranks states’ economic performance. While Michigan improved over last year in some key metrics, other states did as well, leading to Michigan falling slightly in the rankings.

Why it Matters: As the national economy softens, it’s more important than ever for Michigan business and government leaders to focus on sound economic policy to help maintain—and improve—the state’s competitiveness. The report highlighted, for example, how Ohio jumped from 33rd in the rankings last year to 23rd this year.

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New NIL Legislation Takes Effect December 31, 2022

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Cabinet Changes Announced for Governor Whitmer’s Second-Term

Governor Whitmer recently announced changes in leadership for several state departments. Some of the changes include Dan Eichinger taking over as acting director of the Department of Environmental, Great Lakes and Energy, Shannon Lott will become the acting director of the Department of Natural Resources, Michelle Lange chosen as the acting director of the Department of Technology, Management and Budget, and Brian Hanna will become director of the Cannabis Regulatory Agency.

Why it Matters: Further changes may be in the future as the new directors in their respective departments take over and implement their policies. Fraser Trebilcock attorneys will monitor and report on any important situations.

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Officials Unveil $2 Million Grant to Support High-Tech Talent Workforce in Michigan

Related Practice Groups and Professionals

Real Estate | Jared Roberts
Higher Education | Ryan Kauffman
Business & Tax | Paul McCord
Election Law | Garett Koger

Five Stories that Matter in Michigan This Week – December 16, 2022

Cabinet Changes Announced for Governor Whitmer’s Second-Term

Last week, Governor Whitmer announced changes in leadership for several state departments. Some of the changes include Dan Eichinger taking over as acting director of the Department of Environmental, Great Lakes and Energy, Shannon Lott will become the acting director of the Department of Natural Resources, Michelle Lange chosen as the acting director of the Department of Technology, Management and Budget, and Brian Hanna will become director of the Cannabis Regulatory Agency.

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Michigan Slips Slightly in Economic Benchmarking Report

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Tax Changes Incoming for Research & Experimental Expenditures

For tax years beginning in 2022, research and experimental (R&E) expenditures are no longer immediately expensed but rather must be amortized over five years (15 years for foreign expenditures). This change to the tax treatment of R&E expenditures was included as a revenue raiser for the federal government to help pay for other tax breaks in the Tax Cuts and Jobs Act passed at the end of 2017.

Why it Matters: Guidance is needed immediately for the 2022 tax year, especially for corporations that must prepare financial statements. The post-2021 tax treatment of R&E expenditures is inconsistent with financial accounting principles that requires most research and development costs to be expensed immediately. Learn more on the subject.

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Parties Ask Court to Decide on Paid Sick Leave / Minimum Wage Increase by February 1

Earlier this week, a 3-judge appellate panel heard arguments from both parties on whether to overturn the July 2022 ruling to adopt and amend two 2018 ballot initiatives that would increase the minimum wage to $12 per hour, increased tipped wages, and would significantly alter paid sick leave laws in the state forcing businesses to have to change their policies.

Why it Matters: Both parties have requested a decision by February 1 from the Court of Appeals, as the July 2022 ruling had a stay enforced until February 19. Depending on the court’s decision, businesses in the state may have to alter their paid sick leave policies and increase their minimum wage and tipped wage levels. We will continue to monitor the situation and report on any new developments.

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CRA Publishes New Monthly Data, Average Price Lowest Ever Been

According to recent monthly data published by the Cannabis Regulatory Agency, the average retail flower price of an ounce of cannabis is $95.12, an all-time low and a 50% decrease compared to last year.

Why it Matters: While the prices of cannabis and cannabis-related products continue to decrease and make consumers happy, growers on the other hand are seeing profits decrease resulting in them seeking ways to halt new licenses to be granted in an effort to steady prices. Contact our cannabis law attorneys if you have any questions.

Related Practice Groups and Professionals

Election Law | Garett Koger
Business & Tax | Paul McCord
Labor, Employment & Civil Rights | Aaron Davis
Cannabis Law | Sean Gallagher

State of Michigan Paid Administrative Leave – Detroit Free Press Feature

Aaron L. Davis, Fraser Trebilcock Shareholder, and Vice President and Treasurer, was interviewed recently by Paul Egan of the Detroit Free Press on the actions of the state of Michigan to place employees on paid administrative leave alleging misconduct to avoid civil service rules and to force out high-ranking employees that normally officials would have no authority to dismiss.

“Paid administrative leave has ‘been weaponized’ to try to force employees, particularly high-ranking ones who still have civil service protections, to leave on their own when there are no proper grounds for dismissal,” Davis said.

You can read the full story by following this link.

You can contact Aaron Davis at (517) 377-0822, or adavis@fraserlawfirm.com.

Tax Changes Incoming for Research and Experimental Expenditures

Update (12/23/22): In the omnibus spending bill passed by Congress, no changes to the Section 174 rules requiring capitalization and amortization of research and experimentation expenses were included in the final bill of 2022. So, required capitalization will be fully applicable to the 2022 tax year.

For tax years beginning in 2022, research and experimental (R&E) expenditures are no longer immediately expensed but rather must be amortized over five years (15 years for foreign expenditures).

To illustrate, if a business spent $1,000 on domestic research activities in 2021, it could deduct the full $1,000 on its 2021 tax return. But, starting in 2022, $1,000 spent on research will be deducted incrementally over a five-year period; approximately $200. The reduction of currently allowable deductions ($800 in our example) could lead to a possible unexpected increase in taxable income, especially in the first few years that these rules apply.

How did we get here? This change to the tax treatment of R&E expenditures was included as a revenue raiser for the federal government to help pay for other tax breaks in the Tax Cuts and Jobs Act passed at the end of 2017.

Congress sometimes uses a special legislative process called “reconciliation” to quickly advance high-priority tax, spending, and debt limit legislation. This was the case with the Tax Cuts and Jobs Act passed at the end of 2017. This special legislative process of “reconciliation” comes with its own set of operating rules, one such rule being that the final legislative package must either increase or decrease revenue by a specified amount over a specified time.

So, for example, in 2017, to enact large tax cuts, the fiscal year 2018 budget resolution included instructions to the House and Senate tax-writing committees directing them to report legislation increasing the deficit by not more than $1.5 trillion over ten years. In other words, to pay for tax provisions that decreased federal revenues, there had to be tax provisions that off-set these decreases to achieve the targeted result; hence, the changes to the tax treatment of R&E expenditures.

The conventional wisdom back at the end of 2017 and the beginning of 2018, was that because the tax changes to R&E expenditures was not set to take place for 5 years in the future, Congress would act in the intervening years (we have seen this many times before, most notably with the Estate and Gift Tax Exclusion due to sunset at the end of 2025). Thus, far, Congress has not (but not without lack of trying).

There have been discussions in Congress to postpone the TJCA changes to R&E expenditures or repeal them entirely and restore the rules allowing immediate expensing of R&E expenditures. Unfortunately, these discussions seem to have stalled so far. Without any legislative relief, guidance from the IRS on implementation of the mandatory amortization post-2021 changes isneeded. To be perfectly blunt, this guidance is needed immediately for the 2022 tax year, especially for corporations that must prepare financial statements. The post-2021 tax treatment of R&E expenditures is inconsistent with financial accounting principles that requires most research and development costs to be expensed immediately.

To learn more about how the changes to R&E expenses could affect your business and for updates on the status of attempts to change the law, please contact us.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.

Fraser Trebilcock attorney Paul V. McCord has more than 20 years of tax litigation experience, including serving as a clerk on the U.S. Tax Court and as a judge of the Michigan Tax Tribunal. Paul has represented clients before the IRS, Michigan Department of Treasury, other state revenue departments and local units of government. He can be contacted at 517.377.0861 or pmccord@fraserlawfirm.com.

Five Stories that Matter in Michigan This Week – December 9, 2022

Probate Court May Appoint Guardian Even Though Patient Advocate Already in Place

In the case In re Guardianship of Tyler J. Newland, the Michigan Court of Appeals held in an unpublished decision that a probate court may appoint a guardian for an individual who already has a patient advocate in place. The case involved a hospital that petitioned the probate court for the appointment of a guardian, alleging that a guardian was needed because the advocate for one of the hospital’s patients was not acting consistent with the patient’s best interests.

Why it Matters: This case highlights the need for experienced and effective estate planning legal counsel. For help with your estate planning needs, please contact a member of Fraser Trebilcock’s Trusts & Estates team.

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Minimum Wage Set to Increase, With or Without Court Action

On Monday, December 5, 2022, the Michigan Department of Labor and Economic Opportunity announced the effective minimum wages for 2023, setting the standard minimum wage at $10.10 per hour.

Why it Matters: The Department’s notice cautioned that the announced rates were subject to change, pending a decision by the Michigan Supreme Court regarding the Michigan Legislature’s amendment to a successful 2018 ballot initiative. In any event, workers and employers can expect higher wage rates in the new year, just how much higher will be determined in the coming weeks and months. Learn more on the subject.

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The Demise of the Open and Obvious Defense? (Michigan’s Evolution of Premises Liability Law)

Premises liability cases are often litigated in Michigan with considerable difficulty. In a premises liability claim, a possessor of land owes a duty to an invitee to exercise reasonable care to protect them from an unreasonable risk of harm caused by a dangerous condition on the land. However, plaintiffs frequently find difficulty in successfully making claims under a premises liability theory due to the “open and obvious” defense.

Why it Matters: Michigan courts have traditionally held that the hazards presented by snow, snow-covered ice, and observable ice are open and obvious and do not impose a duty on the premises possessor to warn of or remove the hazard. However, the courts appear to be slowly eroding this traditional approach. Learn more on the subject.

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Tax Changes Coming for Research & Experimental Expenditures

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Judge Upholds CRA’s Decision to Suspend Licenses for Flint Marijuana Business

As we covered in a previous newsletter, the Michigan Cannabis Regulatory Agency suspended Green Culture’s medical and recreational licenses after they were found to have sold unregulated products that may have contained several contaminants, such as mold and/or bacteria. Following a two-day hearing, a judge sided with the state agency and upheld the suspension.

Why it Matters: Marijuana businesses should heed this as a warning, the CRA are cracking down on businesses that do not follow the strict guidelines and rules laid out by the state agency. Contact our cannabis law attorneys if you have any questions.

Minimum Wage Set to Increase, With or Without Court Action

On Monday, December 5, 2022, the Michigan Department of Labor and Economic Opportunity announced the effective minimum wages for 2023, setting the standard minimum wage at $10.10 per hour. The Department’s notice cautioned that the announced rates were subject to change, pending a decision by the Michigan Supreme Court regarding the Michigan Legislature’s amendment to a successful 2018 ballot initiative. There is also work ongoing in the Legislature’s lame-duck session that might affect the 2023 minimum wage. In any event, workers and employers can expect higher wage rates in the new year, just how much higher will be determined in the coming weeks and months.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.

Robert D. Burgee is an attorney at Fraser Trebilcock with over a decade of experience counseling clients with a focus on corporate structures and compliance, licensing, contracts, regulatory compliance, mergers and acquisitions, and a host of other matters related to the operation of small and medium-sized businesses and non-profits. You can reach him at 517.377.0848 or at bburgee@fraserlawfirm.com.

Five Stories that Matter in Michigan This Week – December 2, 2022

New Michigan NIL Legislation Takes Effect December 31, 2022

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FTC Safeguards Rule Deadline Extended, But Don’t Wait to Implement Data Security Compliance Protocols

The Federal Trade Commission recently extended the deadline, from December 9, 2022, to June 9, 2023, for compliance with the most stringent requirements of its latest rulemaking, revisions to the Safeguards Rule under the Gramm Leach Bliley Act (“the GLBA”).

Why it Matters: The GLBA, which was implemented over 20 years ago, defines how businesses gather, use, and share certain financial information about their customers. The Safeguards Rule establishes certain data security requirements for how a business stores that information. Learn more from our Fraser Trebilcock attorneys on the matter.

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The Demise of the Open and Obvious Defense? (Michigan’s Evolution of Premises Liability Law

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Michigan Department of Technology, Management and Budget Prevailing Wage Policy Upheld by Court of Claims

On March 1, 2022, the State of Michigan began to require state contractors and subcontractors to pay prevailing wage on construction-based contracts issued by the Department of Technology, Management & Budget (“DTMB”). The directive established the following guidelines for when the payment of a prevailing wage is required.

Why it Matters: In October, the Michigan Court of Claims sided with the state and ruled that DTMB did not violate the law when it implemented its prevailing wage policy. The court granted DTMB’s motion for summary disposition, resulting in the dismissal of the case.

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EEOC Issues New Workplace “Know Your Rights” Poster

The Equal Employment Opportunity Commission has issued an updated “Know Your Rights” workplace poster. Employers with more than 15 workers are required to display the poster, which can be found here, in their workplace. The updated poster identifies and summarizes laws that protect workers from discrimination and retaliation, and explains how employees or applicants can file a complaint if they believe that they have experienced discrimination.

Why it Matters: Employment law is a constantly evolving area, so it’s important for employers to stay abreast of new developments, such as this updated poster requirement from the EEOC. Contact a member of our Labor, Employment & Civil Rights team with any questions.

Related Practice Groups and Professionals

Higher Education | Ryan Kauffman
Business & Tax | Robert Burgee
Insurance Law | Laura DeMarco
Labor, Employment & Civil Rights | Aaron Davis