Five Stories That Matter in Michigan This Week – March 31, 2023

  1. Recent NLRB Decision Makes Unlawful the Proffer of a Severance Agreement with Standard “Confidentiality” and “Non-Disparagement” Provisions

The National Labor Relations Board overruled two prior decisions and held that an employer violates the National Labor Relations Act “when it proffers a severance agreement with provisions that would restrict employees’ exercise of their NLRA rights,” including agreements containing reasonably standard confidentiality-of-agreement and non-disparagement provisions.

Why it Matters: The typical “remedy” for a violation of this nature, and the remedy awarded in McLaren, is to “cease and desist” from proffering unlawful language in future severance agreements and post a notice of the immediate violation in prominent places in the employer’s facility.  Now that the new “rule” is announced, however, future remedies could include (a) rescission of the offending agreements; (b) notification of other employees who signed unlawful agreements (subject to the statutory 6-month limitations period) and other remedial orders. Learn more on the topic.

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  1. 2023 April Business Education Series

During the April Business Education Series, Emmie Musser, senior portfolio marketing manager, ​TechSmith, will share what we learned and best practices to positively impact employee satisfaction, job attitude, productivity, and innovation.

Why it Matters: Not all meetings can or should be replaced, but identifying which ones can and how to replace them will offer your organization greater flexibility and productivity and more dedicated “think” time. Hosted at the Lansing Regional Chamber on Tuesday, April 11. Full details and to register.

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  1. Michigan Right-to-Work Law Repealed

On March 24, 2023, Governor Whitmer signed into law a bill that repeals the state’s right to work law. The Michigan Senate approved a bill on March 14 to repeal the state’s right-to-work law that currently allows employees in unionized jobs to opt out of membership and paying dues. The Michigan House previously passed its own version of the bill.

Why it Matters: It’s time to review current collective bargaining agreements with labor law counsel to prepare for a post-right-to-work environment in Michigan. Employers should also be thinking about their approach to upcoming collective bargaining agreement negotiations in light of these developments.

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  1. How Copyrights Protect Your Business

Copyright is the exclusive legal protection that covers an original work of authorship. Copyrights vest upon creation of the work, which means placing the work onto a tangible medium (e.g., applying paint to a canvas or words to a screenplay).

Why it Matters: As noted above, copyrights vest upon creation of the work, even if it isn’t published. Similar to trademark law, it can be difficult to enforce your copyright if the work is not registered with the U.S. Copyright Office. Learn more.

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  1. $10 Million Microbusiness Loan Program Launched for Michigan Women, Entrepreneurs of Color

Michigan Women Forward recently announced the launch of a $10 million loan program for women and entrepreneurs of color. The Michigan Economic Opportunity Fund program offers funds to small business owners who may not qualify for more traditional loans.

Why it Matters: Small business startup and expansion is key to Michigan’s economic vitality. This program will help women entrepreneurs who identify as socially and economically disadvantaged due to a lack of access to capital and credit.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | David Houston
Business & Tax | Ed Castellani
Intellectual Property | Jared Roberts

Recent NLRB Decision Makes Unlawful the Proffer of a Severance Agreement with Standard “Confidentiality” and “Non-Disparagement” Provisions

Background

In McLaren Macomb, 372 NLRB No. 58 (2023), the National Labor Relations Board (“Board”) overruled two prior decisions and held that an employer violates the National Labor Relations Act (NLRA) “when it proffers a severance agreement with provisions that would restrict employees’ exercise of their NLRA rights,” including agreements containing reasonably standard confidentiality-of-agreement and non-disparagement provisions.

First, understand that the NLRA, and this caselaw, basically applies to all non-supervisory private-sector employees. See, NLRB FAQs.  More specifically, the NLRA is not limited in application to employees who are in or seeking to establish a “labor organization.”

Second, understand that “overruling precedent” is somewhat a misnomer. Since the Board is comprised 3-2 of the appointees of the political party holding the presidency, Board law flops back and forth with great regularity.

The Case Decision

McLaren invalidated the language shown in bold, below:

Confidentiality Agreement. The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse, or as necessary to professional advisors for the purposes of obtaining legal counsel or tax advice, or unless legally compelled to do so by a court or administrative agency of competent jurisdiction.

Non-Disclosure. At all times hereafter, the Employee promises and agrees not to disclose information, knowledge or materials of a confidential, privileged, or proprietary nature of which the Employee has or had knowledge of, or involvement with, by reason of the Employee’s employment. At all times hereafter, the Employee agrees not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer, its parent and affiliated entities and their officers, directors, employees, agents and representatives.

You’ve used that language in plenty of agreements, right?

What to do? What Won’t Work:

The most direct “accommodation” of this Board decision would of course be to revise the offending language. This is unlikely to be successful. Specifically, a core principle of the NLRA is to protect worker rights to communicate freely about “employment-related” issues, broadly defined, and without explicit or implicit limitation by any policy or act of the employer. This protection is exactly contrary to the purpose of both “confidentiality” and “non-disclosure” (or more usefully, “non-disparagement”) provisions in severance agreements, or for that matter, elsewhere in the employer’s policy statements.

Historically employers have attempted to insulate possibly violative language in employment documents (including handbooks) by including a “No-NLRA Inclusion” disclaimer. Such as, “Nothing in this Handbook in any way restricts, limits, or infringes upon any right of any employee under the National Labor Relations Act.” The problem here is, the Board has rigorous standards for what might be a sufficient disclaimer, and the foregoing isn’t close.

Prior Board caselaw has commented on what type of non-disparagement language might pass muster. Here’s what the Board has had to say about that: The employer may permissibly impose a prior restraint rule on worker statements that demonstrate “sharp, public, disparaging attacks upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” Such a rule is not likely to be satisfactory in most cases – if anything, it informs angry workers where the line of permissible misconduct is drawn and suggests disparagement of employer and product.

These principles do highlight one important provision: a “severability” clause. McLaren does not discuss the possibility that inclusion of unlawful provisions could be the basis of an invalidation of an entire severance agreement. But it’s not an unrealistic concern. Include a satisfactory severance provision that protects the overall purpose of the agreement.

What Else to do?

The informed employer is faced with a dilemma: implement severance language that risks running afoul of Board precedent or do without reasonably typical restrictions on disclosure or discussion of severance agreement terms. Unfortunately, the “safe harbor” likely requires seriously limited or unhelpful confidentiality and non-disparagement provisions.

The typical “remedy” for a violation of this nature, and the remedy awarded in McLaren, is to “cease and desist” from proffering unlawful language in future severance agreements and post a notice of the immediate violation in prominent places in the employer’s facility. Now that the new “rule” is announced, however, future remedies could include (a) rescission of the offending agreements; (b) notification of other employees who signed unlawful agreements (subject to the statutory 6-month limitations period) and other remedial orders.

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


Attorney David J. HoustonFraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

Five Stories that Matter in Michigan This Week – March 24, 2023

  1. $10 Million Microbusiness Loan Program Launched for Michigan Women, Entrepreneurs of Color

Michigan Women Forward recently announced the launch of a $10 million loan program for women and entrepreneurs of color. The Michigan Economic Opportunity Fund program offers funds to small business owners who may not qualify for more traditional loans.

Why it Matters: Small business startup and expansion is key to Michigan’s economic vitality. This program will help women entrepreneurs who identify as socially and economically disadvantaged due to a lack of access to capital and credit.

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  1. Recent NLRB Decision Makes Unlawful the Proffer of a Severance Agreement With Standard “Confidentiality” and “Non-Disparagement” Provisions

In McLaren Macomb, 372 NLRB No. 58 (2023), the National Labor Relations Board overruled two prior decisions and held that an employer violates the National Labor Relations Act “when it proffers a severance agreement with provisions that would restrict employees’ exercise of their NLRA rights,” including agreements containing reasonably standard confidentiality-of-agreement and non-disparagement provisions.

Why it Matters: The typical “remedy” for a violation of this nature, and the remedy awarded in McLaren, is to “cease and desist” from proffering unlawful language in future severance agreements and post a notice of the immediate violation in prominent places in the employer’s facility.  Now that the new “rule” is announced, however, future remedies could include (a) rescission of the offending agreements; (b) notification of other employees who signed unlawful agreements (subject to the statutory 6-month limitations period) and other remedial orders. Contact your Fraser Trebilcock attorney.

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  1. Michigan Right-to-Work Law Likely to be Repealed Soon

The Michigan Senate approved a bill on March 14 to repeal the state’s right-to-work law that currently allows employees in unionized jobs to opt out of membership and paying dues. The Michigan House previously passed its own version of the bill. Governor Whitmer has indicated she will sign the final bill into law once it reaches her desk.

Why it Matters: It’s time to review current collective bargaining agreements with labor law counsel to prepare for a post-right-to-work environment in Michigan. Employers should also be thinking about their approach to upcoming collective bargaining agreement negotiations in light of these developments.

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  1. Michigan Cannabis Sales Hit $216 Million in February

Michigan cannabis sales surpassed $200 million in February, per recent data published by the Michigan Cannabis Regulatory Agency. Michigan adult-use sales came in at $206,378,444.08, which medical sales came in at $10,010,601.91.

Why it Matters: Marijuana sales remain strong in Michigan, particularly for recreational use. However, there still are significant concerns about profitability and market over-saturation that the industry is contending with.

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  1. How Trademarks Protect Your Business

Trademarks operate to distinguish your business, build consumer goodwill and solidify your reputation as a source for the goods or services. In most cases, a trademark is a distinctive word, phrase, logo or design that is associated with or applied to a category of goods or services.

Why it Matters: If you are in the business of providing goods or services, then it is strongly recommended that you consult with an intellectual property lawyer to get the best protection in a timely manner. Learn more.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | David Houston
Cannabis Law | Sean Gallagher
Intellectual Property | Jared Roberts

Five Stories that Matter in Michigan This Week – March 10, 2023

  1. US Supreme Court Makes Clear that Highly Compensated Employees can be Eligible for Overtime Pay

In Helix Energy Solutions Group v. Helix, the U.S. Supreme Court ruled that highly compensated employees—in this case the employee at issue earned more than $200,000 per year—can be eligible for overtime pay if they are paid on a daily basis as opposed to a salary basis.

Why it Matters: Many employers mistakenly assume that highly compensated employees are not eligible for overtime pay. However, under the Fair Labor Standards Act, employees are exempt from overtime if they earn at least $107,432 per year on a salary basis (and perform executive, administrative, professional or outside sales work. Because the penalties for noncompliance can be steep, employers should consult with legal counsel to help ensure that their workers are classified and paid in accordance with state and federal guidelines.

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  1. How Copyrights Protect Your Business

Copyright is the exclusive legal protection that covers an original work of authorship. Copyrights vest upon creation of the work, which means placing the work onto a tangible medium (e.g., applying paint to a canvas or words to a screenplay).

Why it Matters: As noted above, copyrights vest upon creation of the work, even if it isn’t published. Similar to trademark law, it can be difficult to enforce your copyright if the work is not registered with the U.S. Copyright Office. Learn more.

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  1. Department of Labor Issues Guidance to Employers on Telework

On February 9, 2023, the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (Bulletin) addressing several questions related to compliance with the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) when a business employs teleworkers.

Why it Matters: The Bulletin provides that the protections under the FLSA apply equally to employees who telework as to employees working at an office, factory, construction site, retail outlet, or any other worksite location. Learn more.

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  1. Business Education Series – Teaching Leadership

Hosted at the Lansing Regional Chamber, the March Business Education Series will have Brain Town, founder and CEO of Michigan Creative, who will discuss how to inspire your staff to be the leaders they all have inside of them.

Why it Matters: Brian will also show you how to write core values that can guide your business and help form an unstoppable team. Attendees will learn how to write and use core values, leadership tips, and ways to inspire greatness. Business owners and leaders are encouraged to attend! Learn more.

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  1. The Ins and Outs of Cottage Succession Planning in Michigan (Part Two)

A cottage plan is an agreement that describes how a cottage will be shared, managed and passed on to future generations of family members. Cottage plans typically cover a range of issues that can impede the succession of a cottage if left unaddressed.

Why it Matters: There are significant advantages to having a cottage plan that utilizes an LLC or trust structure. There is no single option that is best for all families, so it’s important to consult with an experienced cottage law attorney to determine what option is right for you. Learn more from your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | Aaron Davis

Intellectual Property | Jared Roberts

Cottage Law | Mark Kellogg

Five Stories that Matter in Michigan This Week – March 3, 2023

  1. DOL Issues Telework Guidance to Employers

On February 9, 2023, the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (Bulletin) addressing several questions related to compliance with the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) when a business employs teleworkers.

Why it Matters: The Bulletin provides that the protections under the FLSA apply equally to employees who telework as to employees working at an office, factory, construction site, retail outlet, or any other worksite location. Learn more.

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  1. How Trademarks Protect Your Business

Trademarks operate to distinguish your business, build consumer goodwill and solidify your reputation as a source for the goods or services. In most cases, a trademark is a distinctive word, phrase, logo or design that is associated with or applied to a category of goods or services.

Why it Matters: If you are in the business of providing goods or services, then it is strongly recommended that you consult with an intellectual property lawyer to get the best protection in a timely manner. Learn more.

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  1. $35 Million in Grants Available for Small Nonprofits

The State of Michigan, Department of Labor and Economic Opportunity (LEO) and Michigan Nonprofit Association (MNA) have teamed up to help Michigan charities whose operations were impacted by the COVID-19 pandemic.

Why it Matters: Under this initiative, called the MI Nonprofit Relief Fund, grants in amounts between $5,000 and $25,000 will be awarded to selected entities with annual revenues total under $1 million. In addition, eligible entities must be based in Michigan and recognized by the IRS under Section 501(c)(3). Learn more.

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  1. Michigan Cannabis Sales Over $200 Million in January

Marijuana sales surpassed $200 million in January, via the monthly report from the Michigan Cannabis Regulatory Agency. Michigan adult-use sales came in at $196,008,634, while medical sales came in at $11,295,443.

Why it Matters: Marijuana sales remain strong in Michigan, particularly for recreational use. However, there still are significant concerns about profitability and market over-saturation that the industry is contending with.

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  1. The Ins and Outs of Cottage Succession Planning in Michigan (Part One)

When purchasing a cottage, it’s often the intent of the owner to pass the cottage on to future generations to enjoy. Unfortunately, that vision may not become a reality due to challenges such as high property taxes, differing objectives among heirs and resulting family disputes that result in the cottage being sold upon the owner’s death.

Why it Matters: Common issues that prevent the passing of a cottage to future generations in Michigan can be addressed through careful cottage succession planning. Learn more from your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | Aaron Davis
Intellectual Property | Jared Roberts
Business & Tax | Robert Burgee
Cannabis Law | Sean Gallagher
Cottage Law | Mark Kellogg

DOL Issues Telework Guidance to Employers

As the modern workforce evolves, more and more employees are enjoying the flexibility of working from home, teleworking, or working away from the employer’s premises. These arrangements allow for greater work-life balance, increased productivity, and cost savings. However, as these teleworking arrangements become more common, it is important for both employers and employees to understand the protections and rights available under the law.

On February 9, 2023, the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (Bulletin) addressing several questions related to compliance with the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) when a business employs teleworkers. While Field Assistance Bulletins do not have the effect of law, they are nonetheless important statements of DOL policy and statutory interpretation.

The Bulletin explains that under the FLSA, employees who telework are entitled to compensation for all hours worked, including short rest breaks. In qualifying circumstances, employees are also entitled to take breaks to express breast milk free from intrusion and shielded from view. The Bulletin provides that the protections under the FLSA apply equally to employees who telework as to employees working at an office, factory, construction site, retail outlet, or any other worksite location. This means that teleworking employees are entitled to the same compensation and protection as employees working at a traditional worksite.

Similarly, under the FMLA, all hours worked are counted for purposes of determining an employee’s eligibility for leave. The Bulletin provides that when an employee teleworks from home consistently or in combination with working at another or various worksites, all of those hours count towards determining eligibility for FMLA leave. However, the determination of the worksite for an employee who teleworks is fact-specific and will be based on factors such as where the employee reports to work or the location where the employee’s assignments are made.

In conclusion, teleworking arrangements provide numerous benefits to both employees and employers. However, it is important to remember that these arrangements do not exempt employees from the protections and rights afforded to them by the FLSA and FMLA. While the Bulletin doesn’t have the force of law, it’s an important indicator of DOL policy regarding FLSA and FMLA enforcement. Employers and employees must be mindful of the protections and rights the DOL describes are due to telework employees to ensure that teleworking arrangements are fair and equitable for all parties involved.

For questions or assistance, please contact your Fraser Trebilcock attorney.

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


Aaron L. Davis is Firm Vice President and Treasurer, and Chair of Fraser Trebilcock’s labor law practice. You can reach him at adavis@fraserlawfirm.com or (517) 377-0822. 

Five Stories that Matter in Michigan This Week – February 24, 2023

  1. $35 Million in Grants Available for Small Nonprofits

The State of Michigan, Department of Labor and Economic Opportunity (LEO) and Michigan Nonprofit Association (MNA) have teamed up to help Michigan charities whose operations were impacted by the COVID-19 pandemic.

Why it Matters: Under this initiative, called the MI Nonprofit Relief Fund, grants in amounts between $5,000 and $25,000 will be awarded to selected entities with annual revenues total under $1 million. In addition, eligible entities must be based in Michigan and recognized by the IRS under Section 501(c)(3). Learn more.

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  1. Michigan Cannabis Regulatory Agency Suspends Licenses, Issues Advisory

The Michigan Cannabis Regulatory Agency (CRA) recently suspended the licenses of a marijuana processor and issued a safety advisory for items manufactured with “illicit product.”

Why it Matters: This action is an important reminder to marijuana businesses in Michigan that the CRA is active in regulating businesses and taking enforcement action when appropriate. TAS Asset Holdings is the second processor to have its license suspended by the CRA this month. The CRA also announced disciplinary action against 10 marijuana businesses on February 10.

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  1. CRA Publishes January 2023 Data, Average Price Drops

Per recent monthly data published by the Cannabis Regulatory Agency, the average retail flower price of an ounce of cannabis is $80.16, an all-time low, and almost a 50% decrease compared to last year’s average price of $152.74.

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.

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  1. DOL Issues Telework Guidance to Employers

On February 9, 2023, the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (Bulletin) addressing several questions related to compliance with the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) when a business employs teleworkers.

Why it Matters: The Bulletin provides that the protections under the FLSA apply equally to employees who telework as to employees working at an office, factory, construction site, retail outlet, or any other worksite location.

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  1. ERISA Health and Welfare Plan Voluntary Audit Service

Fraser Trebilcock is excited to introduce our Health and Welfare Plan Voluntary Audit Service to help businesses ensure their health and welfare plans are compliant with the Employee Retirement Income Security Act (ERISA).

Why it Matters: ERISA is a complex set of regulations that governs employee benefit plans, including health and welfare plans. Failure to comply with ERISA can result in costly fines and penalties, not to mention damage to your company’s reputation. Learn more from your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

Business & Tax | Robert Burgee
Cannabis Law | Sean Gallagher
Labor, Employment & Civil Rights | Aaron Davis
Employee Benefits | Robert Burgee

FTC Proposes Rules Banning Non-Compete Agreements for Workers

On January 5, 2023, the Federal Trade Commission (FTC) published a proposed rule that would effectively ban the use of non-compete clauses in most employment agreements. The FTC’s guidance in proposing the rule says that 1-in-5 American workers are bound by some form of non-compete clause or agreement.

While the rulemaking may be a new step for the FTC, its purpose is in step with the Agency’s recent decisions; an example of which is included in the press release announcing the rulemaking, “This [rulemaking] aligns with the FTC’s recent statement to reinvigorate Section 5 of the FTC Act, which bans unfair methods of competition. The FTC recently used its Section 5 authority to ban companies from imposing onerous noncompetes on their workers. In one complaint, the FTC took action against a Michigan-based security guard company and its key executives for using coercive noncompetes on low-wage employees.”

These regulations (if adopted) will have wide-ranging impacts across many sectors of the economy. Employers should keep a close eye on these rules and be prepared to amend or revise their employment agreements accordingly. The attorneys at Fraser Trebilcock will continue to monitor this situation and provide updates as the rulemaking process unfolds.

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


Attorney Robert D. BurgeeRobert 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 – January 6, 2023

  1. The Federal “Speak Out Act” Takes Effect

The Speak Out Act took effect on December 7, 2022, which prohibits employers from requiring employees to sign pre-dispute agreements that contain nondisclosure clauses or non-disparagement clauses that would have the effect of silencing employees concerning claims of sexual harassment or sexual assault.

Why it Matters: Requiring employees to sign such agreements is now a violation of federal law. Employers should review their current employee confidentiality agreements and revise them as necessary, keeping in mind that many state laws also limit what terms can be included in an NDA or similar agreements.

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  1. IRS Announces 2023 Standard Mileage Rates

The IRS announced the 2023 standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes. Beginning on January 1, 2023, the rate for business use is 65.5 cents per mile, an increase of 3 cents from the 2022 midyear rate.

Why it Matters: Self-employed individuals who operate an automobile for business use, as well as employers who reimburse employees who use their own vehicles to conduct business, should take note of these changes.

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  1. FTC Proposes Rules Banning Noncompete Agreements for Workers

On January 5, 2023, the Federal Trade Commission (FTC) published a proposed rule that would effectively ban the use of non-compete clauses in most employment agreements. The FTC’s guidance in proposing the rule says that 1-in-5 American workers are bound by some form of non-compete clause or agreement.

Why it Matters: These regulations (if adopted) will have wide-ranging impacts across many sectors of the economy. Employers should keep a close eye on these rules and be prepared to amend or revise their employment agreements accordingly.

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  1. Fed Issues Final LIBOR Replacement Rule

The United Kingdom’s Financial Conduct Authority (FCA), announced that the U.S. dollar LIBOR will cease after June 30, 2023. On December 16, 2022, the Federal Reserve Board issued its final rule governing the replacement of LIBOR as an interest rate benchmark.

Why it Matters: The final rule is complex. Businesses using LIBOR as a benchmark or index should make note of this upcoming change. Fraser Trebilcock attorneys will continue to monitor the situation and provide updates. Contact your Fraser Trebilcock attorneys if you have any questions.

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  1. Estate and Lifetime Gift Tax Exemption Update

Per the IRS, the 2023 Estate and Lifetime Gift Tax Exemption has increased from $12.06 million to $12.92 million. Additionally, the use of electronic signatures for Estate and Gift Tax forms has been extended to October 31, 2023.

Why it Matters: Individuals should take note of the increase in 2023 and plan accordingly. If you have any questions, please contact your Fraser Trebilcock estate planning attorney.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | Aaron Davis
Business & Tax | Mark Kellogg
Business & Tax | Robert Burgee
Business & Tax | Norb Madison
Trusts & Estates | Marlaine Teahan

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

  1. 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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  1. 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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  1. 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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  1. Bills Seeking to Expand Affordable Housing in Michigan Are Passed

Governor Whitmer signed a package of bills (Senate Bills 362364422 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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  1. 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