Recent NLRB Memorandum Argues that Certain College and University Student-Athletes Qualify as Employees and Should be Afforded Statutory Protections

The debate on whether college or university athletes should be considered as employees isn’t a new one, especially in light of coaches like Alabama’s Nick Saban receiving almost a $10 million salary. In fact, college coaches dominate lists of highest paid public employees in most states.

The conversation on the disparity between coach pay, revenue generated by the NCAA and higher education institutions from sports, and student-athletes seeking compensation for their participation is evolving. In July 2021, the NCAA adopted a new name, image and likeness (NIL) policy, by which student-athletes can be compensated for the use of their NIL. In addition, a recent memorandum by the National Labor Relations Board (NLRB) general counsel redefined the term “employee” as it applies to student-athletes. In the September 2021 nine-page memorandum, general counsel Jennifer A. Abruzzo takes the position that student-athletes are misclassified. The memorandum opens the door for students to be considered employees of a private university or college and have the option to unionize and participate in collective bargaining under the NLRB.

The purpose of the memorandum is to put private universities and colleges on notice of  NLRB’s pro-labor policy. NLRB doesn’t have jurisdiction over wages and compensation and cannot compel colleges and universities to pay student-athletes. The memorandum is not considered binding precedent, but Abruzzo’s reasoning indicates NLRB’s position should the right case appear before the board.

The Reasoning Behind the Memorandum

Abruzzo’s reasoning focuses on several key points, including misclassifying the term “student-athlete,” redefining the term “employee” in the context of an athlete, and the increasing social and racial justice activism occurring on campuses.

First, the memo argues colleges’ and universities’ use of the term “student-athlete” is an inherent  misclassification. This label prevents the athlete at a college or university from pursuing protection under federal law. Instead, Abruzzo calls on institutions to classify athletes as “players at academic institutions.”

In her second point, Abruzzo defines the term employee in the context of an athlete playing a sport at a college or university. “Players at Academic Institutions perform services for institutions in return for compensation and are subject to their control. Thus, the broad language of Section 2(3) of the Act, the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment,” Abruzza asserts in her memorandum.

For example, a basketball player who plays on behalf of his or her private university and the NCAA performs a service by playing on the team and receives compensation in the form of a scholarship. The coach and staff dictate practices and general working conditions for the athlete.

Lastly, the memorandum also addresses the recent activism by students on campus. In the last few years, there has been an increase in participation in advocating for social and racial justice issues. She specifically highlights the Black Lives Matter movement and states that athletes who participate in such activism to improve working conditions should be protected from retaliation.

Precedent that supports NLRB’s recent memorandum

Abruzzo’s current memorandum essentially picks up where a 2017 memorandum left off. The NLRB, in GC 17-01, stated that Division 1 scholarship football players who competed in the NCAA at private colleges are employees, but declined to intervene. The memo was rescinded by the Trump administration, and the current Abruzzo memorandum reinstates the point that the football players at issue satisfy the definition of employee under Section 2(3) and the common-law agency test, in which an employee is “a person who performs services for another and is subject to the other’s control or right to control.”

In the June 2021 Supreme Court decision in NCAA vs. Alston, the Court unanimously upheld that a cap on education-related benefits for athletes violated antitrust laws. In his concurring opinion, Justice Brett Kavanaugh stated that college athletes “collectively generate billions of dollars in revenues for colleges every year. Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.” Given this context, Kavanaugh suggests collective bargaining could be a solution to provide college athletes a fairer share of the revenue their institutions generate. This decision also indicates that the court is moving toward legislation that benefits the athlete playing for a private institution or college.

In addition, Abruzzo notes that players at academic institutions can now be compensated for the use of their NIL, similar to professional athletes.

What are the practical implications of the memorandum for public universities and colleges?

As it stands, the NLRB memorandum impacts only private universities and doesn’t apply to athletes in public universities. For example, in Michigan, where there isn’t a Division 1 private school, the public universities are subject to the jurisdiction of the MIchigan Employment Relations Commission rather than the NLRB.

There is a potential caveat since Abruzzo indicated that she might pursue a joint employer theory of liability to apply to public universities as well. She concedes that the current memorandum puts athletes at public universities out of reach, but if (potentially) an NLRB-covered entity is involved in the conditions or terms of employment, the joint employer liability theory might extend to these institutions. The current memorandum certainly opens the door to that possibility. Abruzzo explicitly states, “I will consider pursuing charges against an athletic conference or association even if some member schools are state institutions.”

For those institutions that fall within the scope of the memorandum, there will be more of an impetus to form unions. It is unlikely this development will occur immediately, but Abruzzo’s memorandum clearly sets up the possibility.

The underpinnings of the memorandum certainly challenge the current model employed by private universities and colleges as well as NCAA policy on compensation. If one college or basketball program started paying their athletes, what impact would this have on competition overall? Would the public universities feel the need to follow suit?

The NLRB position seems to embrace a pro-labor stance. The landscape of the student-athlete appears to be evolving, and clearly the colleges and universities – both private and public – need to be attuned to these changes.

If you have any questions, please contact Ryan Kauffman.

Fraser Trebilcock Attorney Ryan Kauffman

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters and representing higher education institutions. You can contact him at rkauffman@fraserlawfirm.com or 517.377.0881.

Corporate Transparency Act Imposes Significant New Reporting Requirements on Businesses

Congress recently passed the Corporate Transparency Act (“CTA”), which requires certain business entities to report the “beneficial ownership” of an entity to the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FINCEN”).

The CTA is intended to deter activity such as money laundering, financing terrorism, and tax fraud, among other things. Failure to disclose the necessary information may subject businesses to significant civil and criminal penalties.

FINCEN is charged with developing regulations to implement the CTA by January 1, 2022. It released an advance notice of proposed rulemaking on April 5, 2021.

What Businesses Does the CTA Apply to?

The CTA applies to a “reporting company,” which under the statute includes a corporation, limited liability company, or other “similar entity” formed by filing with a secretary of state (or similar office under the law of a state) or formed under the law of a foreign country and registered to do business in the United States. We anticipate that the regulations developed by FINCEN will further clarify what “similar entity” means.

Several types of entities are exempt from reporting requirements, including government entities, as well as certain financial institutions, certain nonprofits, and publicly traded companies. Entities that (i) employ 20 or more full-time employees in the United States; (ii) filed a federal income tax return showing more than $5 million in gross receipts or sales; and (iii) have an operating presence at a physical office within the United States are also exempt.

An “exempt grandfathered entity” is one that: (i) was formed over one year prior to January 1, 2021; (ii) has not engaged in active business; (iii) is not owned, directly or indirectly, by a foreign person; (iv) has not, in the preceding 12-month period, experienced a change in ownership or sent or received funds in an amount greater than $1,000; and (v) does not otherwise hold any type of assets.

Who is a Beneficial Owner or Applicant?

Under the CTA, a “beneficial owner” is an individual who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise, (i) exercises substantial control over a corporation or limited liability company; (ii) owns 25% or more of the equity interests of a corporation or limited liability company; or (iii) receives substantial economic benefits from the assets of a corporation or limited liability company.

A reporting company must submit a report to FINCEN that discloses the full legal name, date of birth, address, and a unique identifying number from an acceptable identification document or a FINCEN identifier of any beneficial owner.

Reporting companies must also disclose similar information for any “applicant.” An “applicant” includes an individual who: (i) files an application to form a corporation, LLC, or other similar entity under state or Indian Tribe law; or (ii) registers or files an application to register a corporation, LLC, or other similar entity formed under the laws of a foreign country to do business in the United States by filing a document with the secretary of state or similar office under state or Indian Tribe law.

When Must Reporting Occur?

A reporting company that is formed or registered after the effective date of the regulations must submit a report to FINCEN with the beneficial ownership information related to the reporting company at the time it is formed or registered. A reporting company that was formed or registered before the effective date of the regulations must submit a report to FinCEN no later than two years after the effective date of the regulations. To the extent that there are changes in reported beneficial ownership information, a reporting company must submit an updated report to FINCEN by no later than one year after the date of the change.

What are the Penalties for Failing to Comply?

It is unlawful for any person to willfully provide, or attempt to provide, false or fraudulent beneficial ownership information to FINCEN, or willfully fail to report complete or updated beneficial ownership information to FINCEN. Violations are subject to civil penalties of not more than $500 for each day that the violation continues, and criminal penalties of imprisonment of up to two years and fines of up to $10,000.

There is a safe harbor rule that protects individuals from liability if they voluntarily follow procedures and submit a report with correct information within 90 days. The safe harbor is inapplicable to individuals who submit a report with knowledge that it contains incorrect information in an effort to evade reporting requirements.

We Can Help

The foregoing is a summary of some of the important provisions of the CTA. The statute is lengthy and complex and there is much more to know. Businesses should consult with their attorney to understand their obligations under the CTA. For assistance, please contact Ed Castellani or your Fraser Trebilcock attorney.

Fraser Trebilcock Business Tax Attorney Edward J. CastellaniEdward J. Castellani is an attorney and CPA who represents clients involved with alcohol beverages as a manufacturer, wholesaler, or retailer. He leads the firm’s Business & Tax practice group, and may be contacted at ecast@fraserlawfirm.com or 517-377-0845.

Michigan Lawyers Weekly Feature: How to Run a Well-Documented, Defensible eDiscovery Process

This article by Fraser Trebilcock attorney Jean E. Kordenbrock first appeared on Michigan Lawyers Weekly‘s website. You can view the article by clicking here.

It is commonplace in almost every litigation matter today, but it still strikes fear in the minds of many lawyers: electronic discovery.

From collecting data to protecting it in a secure environment, the federal and Michigan rules require lawyers to competently gather the relevant information and defend the process used to collect it.

The reasons many lawyers distress over eDiscovery are twofold: (1) the process can be complex and (2) a flawed process can lead to serious, negative consequences — including adverse rulings and sanctions.

The good news is that, with greater understanding and careful planning, every litigator can handle eDiscovery.

Michigan eDiscovery rules

In 2015, the Federal Rules of Civil Procedure were updated to create a modern framework for addressing eDiscovery. In 2020, Michigan followed suit, with significant updates to its Michigan Court Rules.

Michigan Court Rule 2.401 sets forth, among other things, a number of processes and protocols related to eDiscovery that lawyers — and their clients — must adhere to.

For example, Rule 2.401(B) provides that one of the issues that should be addressed at an early scheduling conference is the “disclosure, discovery, preservation, and claims of privilege” of electronically stored information, or “ESI,” which Rule 2.310 defines as “electronically stored information, regardless of format, system, or properties.” ESI is included in the definition of “documents,” which attorneys have a duty to preserve.

Pursuant to Rule 2.401(J)(1), “where a case is reasonably like to include the discovery of ESI,” the parties may agree to, the court may order, or a party may file a motion requesting an “ESI Conference,” at which the parties must consider a host of ESI-related issues. These include but are not limited to:

  • Issues relating to the preservation of discoverable information, including adoption of a preservation plan for potentially relevant ESI
  • Identification of potentially relevant types, categories, and time frames of ESI
  • Identification of potentially relevant sources of ESI and whether the ESI is reasonably accessible
  • Disclosure of the manner in which ESI is maintained

The parties’ ESI discovery plan must be presented to the court within 14 days of the conference.

Failure to abide by these and other rules may result in sanctions.

Practical tips

Once a lawyer learns of an imminent or actual legal claim against a client, it is critical that eDiscovery becomes an immediate area of focus. The process of determining whether the appropriate steps were taken to identify ESI in litigation is evaluated using a standard of reasonableness.

The first step in the eDiscovery process involves the legal duty to preserve potentially relevant ESI. This includes the identification, preservation and collection of relevant information.

The identification of ESI begins with gaining an understanding of what current information policies and procedures the client currently has in place. To the extent the client has an information technology department in place, meeting with the relevant IT professionals can be a good way to gain a holistic understanding of the client’s past and current information governance practices.

Some of the questions that should be immediately addressed include:

  • What are the client’s document management systems?
  • What hardware and software applications are in use?
  • What is the current data management strategy?
  • How do employees save, retrieve and share documents?
  • What backup procedures are in place?

During the process of identifying ESI, it’s important to keep in mind the scope and breadth of the ways clients create, store and share information in 2021. Email, text messaging, instant message software such as Slack, chat functions in Zoom and Teams, social media applications, file servers, cloud-based applications, mobile devices … the list goes on. While not every source of ESI will contain relevant information, it is nonetheless incumbent upon the lawyer to identify all sources in order to make that determination.

Once sources are identified, a data map should be created, which is a comprehensive inventory of an organization’s data which could be potentially relevant to a legal investigation. A data map typically includes what types of data the company generates, uses and stores; where the data is stored; who is in charge of the data; and whether and when it should be archived or deleted.

Another important aspect of creating a defensible process is determining the key people involved in events giving rise to the dispute who may be custodians of information. This requires analysis of who the custodians are, what the reporting structure is within an organization, who has access to what data, and what systems and applications custodians use.

As you can see from this merely cursory review of the many steps involved in the identification, preservation and collection of ESI, there is a lot to take into account. And the risks of failing to take the appropriate action are real and significant. At worst, lawyers can expose themselves and their clients to sanctions or adverse rulings in litigation. At best — and this is still bad — the eDiscovery process may have to be redone, leading to substantial additional costs for clients.

A lawyer who is handling a case involving eDiscovery has a few different options. First is trying to go it alone, which is risky if they don’t have the requisite experience and expertise. Second is hiring an outside eDiscovery vendor, which can be helpful but still poses risks because the lawyer may have no way to evaluate the appropriateness of the process. A third option is to team up with another outside lawyer who specializes in eDiscovery who can help ensure that the process is defensible.

Regardless of the approach, one thing is certain: in our increasingly digital and remote-working world, eDiscovery will continue to gain more significance — and become more complex — in litigation.

Knowing the court rules is an important first step. Creating and running a defensible eDiscovery process requires a deeper understanding and expertise born of experience. If you have any questions, please contact Jean Kordenbrock.

Jean E. Kordenbrock is an experienced legal professional and entrepreneur across a broad range of legal areas, business, and a diverse clientele. She has the unique quality of being a skilled attorney while also leading her own teams where outcomes combine legal, political, and business expertise. Jean can be reached at (517) 377-0824 or jkordenbrock@fraserlawfirm.com.

New Congressional Bill Would “Encourage” Higher Education Institutions to Remove Criminal History Questions from Admissions Processes

In August, Senator Brian Schatz introduced the Beyond the Box for Higher Education Act (Senate Bill 2634) in the U.S. Senate. If enacted, the legislation would encourage (not require) colleges and universities to remove criminal and juvenile justice questions from their admissions applications by providing guidance and training schools to change their policies. The U.S. Department of Education would be responsible for issuing ​​guidance and recommendations.

Companion legislation (HR 4950) was introduced in the U.S. House of Representatives.

As of 2019, roughly 72 percent of colleges and universities in the U.S. included criminal history questions in their admissions processes. Advocates for the legislation argue that admissions professionals often reject otherwise-qualified applicants with criminal records without giving sufficient consideration to their skills, interests, demographic or sociological backgrounds.

Background of the Beyond the Box movement

The Beyond the Box (or “Banning the Box”) movement was established in 2004 as a national civil rights movement of formerly incarcerated people and their families. Its goal is to help these individuals achieve personal and professional success through a range of resources and policies. A major focus of the movement is to change policies that create barriers for individuals with a criminal record by working with federal and state agencies.

Recent, Additional “Beyond the Box” Legislation

This legislation comes on the heels of other federal efforts, affecting higher education and businesses more broadly, to open up access to resources to incarcerated individuals and destigmatize criminal history. For example:

  • At the end of 2020, Congress reinstated Pell Grant access to incarcerated students through the passage of the FAFSA (Free Application for Federal Student Aid) Simplification Act, lifting a 26-year ban. Questions about past drug convictions will also be eliminated from the Pell Grant application process, effective for the 2023-2024 award year.
  • The Fair Chance to Compete for Jobs Act of 2019 will go into effect as of December 17, 2021. It bans federal agencies and contractors from asking job applicants about their criminal history.

It is important to note that the Beyond the Box for Higher Education Act is merely pending legislation. It is uncertain as to whether it will actually be enacted into law. And even if it is, the legislation seeks to “encourage,” not mandate, higher education institutions to remove criminal history questions from their admissions processes. However, as judged by other recent legislation enacted related to Pell Grants and federal government employment practices, there appears to be a growing trend toward eliminating the consideration of criminal history in financial aid, admissions and employment through the legislative process.

In light of this, higher education institutions may want to examine their admissions policies and do contingency planning to the extent their policies require disclosure of criminal history.

We will keep you updated on further developments relating to this issue.

If you have any questions, please contact Ryan Kauffman.

Fraser Trebilcock Attorney Ryan Kauffman

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at rkauffman@fraserlawfirm.com or 517.377.0881.

Lawmakers Introduce the Michigan Cannabis Safety Act Which Would Impose More Stringent Regulations on Medical Marijuana Caregivers

An ongoing debate between medical marijuana caregivers and large commercial marijuana producers in Michigan over the role and rights of caregivers is now the subject of legislation introduced September 14 by Michigan legislators.

Introduced as the Michigan Cannabis Safety Act, and reflected in Michigan House Bills 5300-5302, the legislation would limit the amount of marijuana that caregivers could grow and distribute.

  • The legislation would reduce the number of patients allowed per caregiver from five to one, beginning March 21, 2022. This would limit the amount of plants a caregiver could grow at one time from 60 to 12 plants, with an additional 12 plants allowed for personal use.
  • The amount of harvested marijuana that a caregiver could keep on hand would be reduced from 15 ounces to 5 ounces.
  • Caregivers would have to register for a Specialty Medical Grower license, pursuant to which growers would be required to pay $500 application fees and have marijuana undergo safety testing.
  • Marijuana plants would also have to be grown in an indoor, secure facility.

As we addressed in a recent post, proponents of the bill argue that having unlicensed caregivers leads to public health and safety risks, and contributes greatly to billions in black market sales of marijuana in Michigan.

Activists who oppose the new licensing proposal argue that the Michigan Cannabis Safety Act would make Michigan marijuana users more dependent on large cannabis companies, which in turn would result in higher prices. Around 100 people rallied in support of individual caregivers at the State Capitol on September 15, a day after the new legislation was introduced.

We will continue to keep you apprised of further developments in this debate. In the meantime, if you have any questions or require assistance, please contact Paul Mallon or your Fraser Trebilcock attorney.

mallon-paulPaul C. Mallon, Jr.  is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at pmallon@fraserlawfirm.com or (313) 965-9043. 

Interactive Long-Term Care Planning Decision Tree: Workshop Breakdown

When evaluating long-term care strategies for clients, the lawyer must ask a series of questions to understand the issues and variables to consider in planning. Every client has their own unique needs, requiring valuable insight from an experienced attorney. Fraser Trebilcock attorney Melisa M. W. Mysliwiec will be sharing key information with other attorneys in Michigan to help them better serve their own clients in long-term care planning. The presentation, titled “Interactive Long-Term Care Planning Decision Tree,” will be delivered to members of the Institute of Continuing Legal Education’s Elder Law Certificate Program on Friday, September 17, 2021.

 The seminar will assist attorneys in identifying the critical information they can collect at the initial client meeting, and explore the issues and variables to consider in Medicaid-focused strategies and how they can impact the options available to their clients. Attorneys will learn using real-world scenarios and going through the decision tree step by step from start to finish.

Melisa, along with Rosemary Howley Buhl, Arthur L. Malisow, Charles S. Ofstein, and Amy Rombyer Tripp, will answer questions and provide advice on each step of the decision tree to have attendees walk away with a completed decision tree that they’ll be able to use as a model in their practice.

Attorney Melisa Mysliwiec

If you would like to talk with an attorney about putting legal plans in place, contact attorney Melisa M. W. Mysliwiec. Melisa focuses her work in the areas of Elder Law and Medicaid planning, estate planning, and trust and estate administration. She can be reached at mmysliwiec@fraserlawfirm.com or 616-301-0800.

[Client Reminder] October 14 Deadline: Medicare Part D Notice of Creditable (or Non-Creditable) Coverage

Medicare Part D notices (of either creditable or non-creditable coverage)
are due for distribution prior to October 15th.

The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 requires entities who offer prescription drug coverage to notify Medicare Part D eligible individuals whether their prescription coverage is creditable coverage. With respect to group health plans including prescription coverage offered by an employer to any Medicare Part D eligible employees (whether or not retired) or to Medicare Part D Medicare-eligible spouses or dependents, the employer must provide those individuals with a Notice of Creditable or Non-Creditable Coverage to advise them whether the drug plan’s total gross value is at least as valuable as the standard Part D coverage (i.e., creditable). Medicare Part D notices must be provided to Medicare-eligible individuals prior to October 15th of each year (i.e., by October 14th).

The initial notices were due by November 15, 2005 and have been modified numerous times. The newest model notices and guidance were issued for use after April 1, 2011. Therefore, any notices you send from this point forward must conform to the new guidelines. Use of the former model notices will not suffice.

Downloads to the updated guidance and various notices can be found on the CMS website HERE and HERE.

As a reminder, there are five instances in which such notice must be provided:

  1. Prior to an individual’s initial enrollment period for Part D;
  2. Prior to the effective date of enrollment in your company’s prescription drug coverage;
  3. Upon any change in your plan’s creditable status;
  4. Prior to the annual election period for Part D (which begins each October 15); and
  5. Upon the individual’s request.

Providing the notice above is important as a late enrollment penalty will be assessed to those persons who go 63 days or longer without creditable coverage (for example, if they enroll in an employer’s prescription plan which is not as valuable as the Part D coverage instead of enrolling directly in the Medicare Part D coverage).

If your plan does not offer creditable prescription drug coverage and if the Part D eligible person enrolls in your plan instead of the Part D plan for at least 63 days, a permanent late enrollment penalty of 1% of the premium is added to the Medicare premium for each month the person does not enroll in Part D.

Please contact us if you need assistance with your Notice of Creditable (or Non-Creditable) Coverage.

Reminder: Submit Medicare Part D Notice to CMS

As discussed above, employers offering group health plans with prescription drug coverage are required to disclose to all Part D-eligible individuals who are enrolled in or were seeking to enroll in the group health plan coverage whether such coverage was “actuarially equivalent,” i.e., creditable. (Coverage is creditable if its actuarial value equals or exceeds the actuarial value of standard prescription drug coverage under Part D.) This notice is required to be provided to all Part D eligible persons, including active employees over age 65.

The regulations also require group health plan sponsors with Part D eligible individuals to submit a similar notice to the Centers for Medicare and Medicaid Services (“CMS”). Specifically, employers must electronically file these notices each year through the form supplied on the CMS website.

The filing deadline is 60 days following the first day of the plan year.

At a minimum, the Disclosure to CMS Form must be provided to CMS annually and upon the occurrence of certain other events including:

  1. Within 60 days after the beginning date of the plan year for which disclosure is provided;
  2. Within 30 days after termination of the prescription drug plan; and
  3. Within 30 days after any change in creditable status of the prescription drug plan.

The Disclosure to CMS Form must be completed online at the CMS Creditable Coverage Disclosure to CMS Form web page HERE.

The online process is composed of the following three step process:

  1. Enter the Disclosure Information;
  2. Verify and Submit Disclosure Information; and
  3. Receive Submission Confirmation.

The Disclosure to CMS Form requires employers to provide detailed information to CMS including but not limited to, the name of the entity offering coverage, whether the entity has any subsidiaries, the number of benefit options offered, the creditable coverage status of the options offered, the period covered by the Disclosure to CMS Form, the number of Part D eligible individuals, the date of the notice of creditable coverage, and any change in creditable coverage status.

For more information about this disclosure requirement (instructions for submitting the notice), please see the CMS website for updated guidance HERE.

As with the Part D Notices to Part D Medicare-eligible individuals, while nothing in the regulations prevents a third-party from submitting the notices (such as a TPA or insurer), the ultimate responsibility falls on the plan sponsor.

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

Elizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Brian T. Gallagher is an attorney at Fraser Trebilcock specializing in ERISA, Employee Benefits, and Deferred and Executive Compensation. He can be reached at (517) 377-0886 or bgallagher@fraserlawfirm.com.

Video Surveillance Rules for Marijuana Licensees in Michigan

Marijuana licensees in Michigan must adhere to statutory mandates established by the Michigan Regulation and Taxation of Marihuana Act and regulations promulgated by the Michigan Marijuana Regulatory Agency (“MRA”). One such requirement, as discussed in a recent MRA bulletin, is having a properly functioning surveillance system in place 24 hours a day, seven days a week, at all licensee locations.

Surveillance systems must be able to record the following areas:

  • Where marijuana products are weighed, packed, stored, loaded, and unloaded for transportation, prepared, or moved.
  • Entrances and exits.
  • Point of sale or retail areas.
  • Security and back offices including rooms where the surveillance system itself is stored.
  • Anywhere marijuana or marijuana products are destroyed.

Failure to comply with the following requirements may result in disciplinary action.

Immediate response with recording is required

According to the MRA, a functioning, compliant surveillance allows for proper oversight of regulated products and businesses, and helps to ensure the safety of licensees, the licensee’s employees, and the general public. The MRA may request that a licensee provide a video surveillance recording, and if it does the licensee must provide it immediately, or at a later time approved by the agency.

Video surveillance must be maintained and stored for designated periods of time

Licensees must maintain surveillance recordings for 30 days, but the MRA may request that licensees maintain them for a longer period of time. Licensees should have the proper storage devices to provide to the agency on hand and should maintain backup copies of requested surveillance footage. Failure to comply with requests for video recordings may subject licensees to disciplinary proceedings.

Equipment must be working properly and staff training is advisable

Video surveillance equipment must be working properly at all times with a minimum resolution of 720p. In addition, surveillance logs must be updated and accurate. The name of the employee or business owner responsible for monitoring the system must also be made available. The MRA recommends that a licensee designate at least one employee to be trained in using the video surveillance system so that licensees can comply with all requests for the preservation and production of video surveillance.

Suspending operations if surveillance system isn’t working

The MRA recommends that a licensee discontinue operations if its surveillance system isn’t working due to a power loss or otherwise. Any surveillance system must be equipped with a failure notification system that provides notification to the licensee of any interruption or failure of the video surveillance system or video surveillance system storage device. Again, operating without the required video surveillance coverage in place may subject the licensee to disciplinary action.

Final thoughts for licensees

Obtaining and maintaining a license to legally operate a business under the Michigan Regulation and Taxation of Marihuana Act requires a clear understanding of the rules and regulations, and continual operational vigilance by entrepreneurs and their employees. The detailed rules concerning video surveillance are just one example of the types of issues that must be addressed and adhered to. If you have any questions or require assistance as a licensee in Michigan, please contact Paul Mallon or your Fraser Trebilcock attorney.

mallon-paulPaul C. Mallon, Jr.  is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at pmallon@fraserlawfirm.com or (313) 965-9043. 

Sixth Circuit Limits the Scope of Personal Jurisdiction in FLSA Litigation

On August 17, 2021, in Canaday vs. The Anthem Companies, Inc., the United States Court of Appeals for the Sixth Circuit became the first appellate court to hold that individuals with a connection to the forum state may only join a collective action under the Fair Labor Standards Act (FLSA). This ruling protects employers by limiting their liability and expense in litigating claims of nonresident opt-in employees who join an FLSA collective action. It also prevents an employee from engaging in forum shopping of federal courts for the most favorable outcomes.

What is the background of this case and the resulting analysis by the Sixth Circuit?

In this case, The Anthem Companies, with corporate offices in Indiana, employed nurses to review medical insurance claims to determine if claimant payments are authorized under a medical necessity. Nurses who were contracted from all across the country were paid a salary and classified as exempt. As a result, they weren’t entitled to overtime pay.

Laura Canaday, a nurse based in Tennessee, reviewed The Anthem Companies medical insurance claims. She argued that Anthem misclassified her as “exempt” and she was entitled to overtime pay under the FLSA. Canaday moved to certify a nationwide collective action claim of review nurses who worked in several different states. The Anthem Companies moved to dismiss the suit from all out-of-state nurses since they lacked personal jurisdiction. The District Court and the Sixth Circuit agreed.

In its reasoning, the SIxth Circuit relied on the Supreme Court decision in Bristol-Myers, 137 S.Ct. 1773 (2017). This case involved Bristol-Myers, a California-based company, and its manufacture of a blood thinner, Plavix. California residents and nonresidents alleged defects of Plavix and related injuries. The Court ruled that the nonresident plaintiffs did not claim a relationship with the forum state (California). These nonresident plaintiffs did not purchase Plavix in California or suffer any harm from the drug in the state. The Supreme Court ruled “that any similarity between the resident and nonresident plaintiffs’ claim offered an insufficient basis for exercising specific jurisdiction.”

The Sixth Circuit in Canaday relied on Bristol’s reasoning, stating: “Anthem did not employ the nonresident plaintiffs in Tennessee. Anthem did not pay the nonresidents in Tennessee. Nor did Anthem shortchange them overtime compensation in Tennessee. . . a court may not exercise specific personal jurisdiction over claims unrelated to the defendant’s conduct in the forum state.”

Canaday contended that she must only show that their claims arose out of Anthem’s contacts within the United States, not specifically Tennessee. The Sixth Circuit disagreed: “Many federal laws provide for nationwide service on defendants and personal jurisdiction over them in any federal district court in the country. . . The FLSA, however, does not offer nationwide service of process.”

The court disagreed with Canaday’s claim that as the named plaintiff she must comply with the Fourteenth Amendment, but the nonresident plaintiffs aren’t required to do the same.

“Whether a court has personal jurisdiction over a defendant depends on the defendant’s contacts with the state in which the plaintiff filed the lawsuit. Two types of personal jurisdiction exist for corporations. A court may assert ‘general’ … jurisdiction over a defendant in its home state, where the defendant is incorporated or headquartered. Or a court may exercise ‘specific’ … jurisdiction over a defendant if the plaintiff’s claims ‘arise out of or relate to’ the defendant’s forum state activities.”

The Anthem Companies, which is incorporated and headquartered in Indiana has no “at home” status in Tennessee.

How does this ruling impact employers?

The scope of litigation under FLSA—at least in states within the Sixth Circuit—is limited in terms of size and geography, and as a result employers will likely enjoy reduced expense and liabilities of “out of state” employees who lack personal jurisdiction where the company is headquartered. It prevents employees from forum shopping to provide the “ideal” federal court to hear their claims.

If you have any questions about this case, or questions about the FLSA more generally, please contact Aaron Davis or your Fraser Trebilcock attorney.

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

CDC Eviction Moratorium Struck Down – How Are Michigan Courts Responding

On August 26, 2021, the U.S. Supreme Court struck down the CDC’s section eviction moratorium. That opinion can be found here.

At the time it was uncertain what this meant for Michigan courts handling evictions in light of the July 2 amendments to Michigan Supreme Court Administrative Order No. 2020-17 (“Order 17”), found here.

As of Friday August 27, 2021, when the author personally filed landlord-side eviction actions at a district court near you, the district courts were still requiring use of SCAO form DC 511 – a form modeled after the CDC moratorium and allowing tenant declarations consistent with it. Thus, with various administratively-ordered procedural changes to eviction cases, it was unclear what changes, if any, would follow from the striking of the CDC moratorium. Since that time the State Court Administrator’s Office has removed links to form DC 511 and are verbally advising that the office pulled the form. It is not a mistake or a dead link. At the time of publication of this update however, there does not appear to be a Michigan Supreme Court order so directing. Specifics have been requested from the SCAO office on this.

Please check back for updates on this issue. We will update this blog if further procedural changes are ordered. In the meantime, form DC 511 should not be necessary for filing new eviction cases.

Jared Roberts is a shareholder at Fraser Trebilcock who works in real estate litigation and transactions, among other areas of the law. Jared is Chair of the firm’s Real Estate department, and also “walks the walk” as a landlord and owner of residential rental properties and apartments in Downtown Lansing. He may be reached at jroberts@fraserlawfirm.com and (517) 482-0887.