Five Stories That Matter in Michigan This Week – April 14, 2023

  1. Michigan’s “Clean Slate” Law Takes Effect

Michigan’s Clean Slate law took effect on April 11, 2023, up to 1 million Michigan residents will see criminal convictions automatically expunged. Under the law, up to four misdemeanor convictions that were punishable by 93 days or more will be automatically expunged after seven years, while all misdemeanors that were punishable by 92 days or less will be automatically expunged after seven years. Up to two felony convictions can be automatically expunged after 10 years, subject to certain conditions.

Why it Matters: Having a criminal conviction on one’s record can be a barrier to employment, housing and other opportunities.

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  1. Income Tax Reduced for Tax Year 2023

For tax year 2023, the state income tax will be reduced to 4.05%, but will go back up to 4.25% the following year due to a 2015 statute that requires a reduction in the income tax when revenues to the General Fund exceed inflation plus economic growth.

Why it Matters: Individuals should see a slight increase to their take-home pay, but it will not last for long as the income tax rate will go back to 4.25% starting in tax year 2024.

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  1. Governor Whitmer Signs New Laws for Universal Background Checks and Safe Storage

This week, Governor Whitmer signed into law new legislation that will require individuals who purchase a firearm to undergo a background check. Additionally, anyone who owns a firearm, is required to lock it up.

Why it Matters: These laws will take effect 90 days following the end of the current legislative session.

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  1. Fraser Trebilcock Attorney Secures Principal Residency Exemption for Client

Fraser Trebilcock Shareholder Paul McCord won a principal residence exemption for an elderly Michigan snowbird couple. Without careful planning, a hard-earned retirement with the means to travel can cost many Michiganders who fly South to escape Michigan’s harsh winters dearly.

Why it Matters: As is generally the case, property owners that own more than one residence must take care to appropriately establish which home is their “principal residence.” The problem is often more complicated in cases of retired homeowners as they typically are not tethered to a fixed location for work or socially and travel often. Learn more.

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  1. Michigan Legislature Passes Amendment to Elliott-Larsen Civil Rights Act to Protect LGBTQ Rights

The Michigan Legislature recently passed an amendment to the state’s Elliot-Larsen Civil Rights Act (ELCRA) that explicitly includes protections against discrimination on the basis of sexual orientation, gender identity, or expression.

Why it Matters: Michigan entities covered by the ELCRA should ensure that their policies and practices protect against discrimination based on these amended protected categories.

Related Practice Groups and Professionals

Business & Tax | Paul McCord
Labor, Employment & Civil Rights | David Houston
Business & Tax | Ed Castellani

Five Stories That Matter in Michigan This Week – April 7, 2023

  1. Michigan Legislature Passes Amendment to Elliott-Larsen Civil Rights Act to Protect LGBTQ Rights

The Michigan Legislature recently passed an amendment to the state’s Elliot-Larsen Civil Rights Act (ELCRA) that explicitly includes protections against discrimination on the basis of sexual orientation, gender identity, or expression.

Why it Matters: Michigan entities covered by the ELCRA should ensure that their policies and practices protect against discrimination based on these amended protected categories.

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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. Prominent Cannabis Brand Regains Control of Multiple Cannabis Stores Following Court Order

A recent court order has placed control of several cannabis stores back under Skymint’s leadership. In 2021, Skymint acquired competitor 3Fifteen Cannabis and its cannabis stores located across the state. Following reports of Skymint Brands being placed under receivership, 3Fifteen Cannabis challenged the company’s leadership and took back control of several of the stores that were acquired. However, a judge ruled that 3Fifteen Cannabis violated the receivership’s order and must relinquish control back to Skymint.

Why it Matters: The fact that Skymint’s assets were put into receivership is noteworthy, as state court receivership has become an alternative to bankruptcy for distressed cannabis companies. Because cannabis is still illegal at the federal level, companies can’t access federal bankruptcy to reorganize or liquidate.

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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. Name, Image, Likeness Law for Student-Athletes in Michigan

The new law, which took effect December 31, 2022, set standards for how student-athletes can earn compensation for the use of their name, image, and likeness (“NIL”) in Michigan. The NCAA also has its own NIL policy, which took effect on July 1, 2021.

Why it Matters: It’s important that Michigan student-athletes, covered higher education institutions, and businesses ensure that NIL deals comply not only with NCAA rules and regulations, but also with the new standards that will apply in the State of Michigan. Learn more on the subject from your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

Business & Tax | Ed Castellani
Cannabis Law | Sean Gallagher
Intellectual Property | Jared Roberts
Higher Education | Ryan Kauffman

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 17, 2023

  1. Business Education Series – Teaching Leadership

Hosted at the Lansing Regional Chamber on Wednesday, March 22 at 10:00 to 11:30 a.m., 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. How Patents Protect Your Business

A patent is a legal monopoly for protecting a utilitarian device, system, machine, composition or process. A patent owner has the right to prevent others from making, using, selling or importing a protected invention for a limited time.

Why it Matters: The U.S. is a “first-to-file” system, so it is imperative that an inventor keep the details of their invention confidential until a patent application has been filed. Also, timing is of the essence to prevent a competitor from winning the race to the Patent Office. Learn more.

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  1. Noteworthy Michigan Cannabis Brand Put into Receivership

Skymint Brands, a high-profile Michigan consumer cannabis brand, was placed into receivership on March 7. According to a lawsuit filed by Tropics, LP against Skymint’s parent company, Green Peak Industries, Inc., Tropics is owed more than $127 million in loans that are in default.

Why it Matters: While Michigan has experienced strong sales of recreational marijuana as a whole, prices per ounce have fallen significantly, making it difficult for many dispensaries to generate profits. The fact that Skymint’s assets were put into receivership is also noteworthy, as state court receivership has become an alternative to bankruptcy for distressed cannabis companies. Because cannabis is still illegal at the federal level, companies can’t access federal bankruptcy to reorganize or liquidate.

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  1. CRA Publishes February 2023 Data, Average Price Hovers Near All-Time Low

The Cannabis Regulatory Agency recently published its latest monthly data, showing that the average price for an ounce of cannabis is $86.00, an increase from the all-time low of $80.16 in January of this 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.

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  1. Ten Reasons You May Want to Consider a Family Cottage Succession Plan

The goal of cottage succession planning is to set up legal ground rules that provide the best chance to keep a cottage in the family for future generations.

Why it Matters: Here are a few reasons why you and/or your family may want to consider a family cottage succession plan. Prevents a joint owner from forcing the sale of the cottage through an action for partition, prevents transfer of an interest in the cottage outside the family, protects owners from creditor claims, and establishes a framework for making decisions affecting the cottage. See the complete list from your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

Intellectual Property | Jared Roberts
Cannabis Law | Sean Gallagher
Cottage Law | Mark Kellogg

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