Tag: labor

Michigan’s Repealed “Right-to-Work” Law Takes Effect

On Tuesday, February 13, 2024, Michigan’s repeal of the prior “right-to-work” law governing private-sector workers went into effect. The result of the repeal is that private-sector unions may permissibly negotiate to impasse, and enforce, “union security” provisions requiring membership in, or financial support through “Beck Objector” fees, of those unions. See NLRB FAQ’s.

Michigan’s “Freedom to Work” law enacted under Republican Governor Rick Snyder became effective in 2013. That law prohibited public and private sector employees from being required, as a “condition of employment,” to belong to a labor union or to pay a “service fee” in lieu of membership. The 2013 law invalidated any collective bargaining provision to the contrary, and prohibited enforcement of such unlawful provisions.

In 2023, Governor Gretchen Whitmer signed into law legislation repealing the Freedom to Work law insofar as it applies to private-sector employees. Governor Whitmer also signed a separate bill that would similarly repeal this prohibition as to public sector workers in the event the U.S. Supreme Court reverses a 2018 decision that essentially adopted similar “right-to-work” principles with respect to public sector employees and unions, which reversal has not occurred.  So, the present change does not affect the current prohibition of a membership requirement in a public sector collective bargaining agreement.

Per data collected by researchers available at unionstats.com, in 2022, close to 39,000 private sector workers in Michigan were covered by a collective bargaining agreement but were not union members paying dues or service fees. Now, those individuals may permissibly be required to pay dues or fees if “union security” provisions are bargained into, or “suspended” in, applicable collective bargaining agreements. In that event, affected employers could be required to fire bargaining unit workers who refuse to pay dues or fees under the enforcement of a lawful union security clause.

Employers with unionized workforces should anticipate attempts by unions to enforce “suspended” union security clauses or negotiate such provisions into future collective bargaining agreements, and plan accordingly. If you have questions about the new law or require assistance, please contact David J. Houston or your Fraser Trebilcock attorney.

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.

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.

Governor Whitmer Reopens Manufacturing with Executive Order 2020-77

On May 7, Governor Whitmer issued Executive Order 2020-77 reopening manufacturing effective May 11. This order continues the “process of gradually resuming in-person work and activities that were temporarily suspended under … prior orders.” This latest order supersedes prior stay-at-home orders, and extends until May 28 prior restrictions and stay-at-home provisions already in effect.

Reopening Manufacturing

EO 77 permits workers “necessary to perform start-up activities at manufacturing facilities” to engage in those activities immediately. The manufacturing employer may permissibly recall all “workers necessary to perform manufacturing activities.” EO 77, section 10(k). Further, “workers at suppliers, distribution centers, or service providers whose in-person presence is necessary to enable, support, or facilitate another business’s or operation’s resumed activities, including workers at suppliers, distribution centers, or service providers along the supply chain whose in-person presence is necessary enable, support, or facilitate the necessary work of another supplier, distribution center, or service provider in enabling, supporting, or facilitating another business’s or operation’s resumed activities” are permitted to be recalled to work, subject to specific provisions identified at section 9(c) of the order.

Manufacturing facilities to be reopened must comply with the threshold social distancing and safe-work requirements of section 11 which are applicable to all businesses requiring “in-person work.” Those rules, which have been in effect in various forms since the initial stay-at-home order, include among other things:

  • preparation of a COVID-19 preparedness and response plan,
  • restriction of the number of workers to those “strictly necessary to perform the in-person work,”
  • six-foot distancing “to the maximum extent possible,”
  • the mandatory use of masks when such distancing is not be “consistently maintain[ed]”
  • face shields are to be “considered” where workers must work within three feet of each other,
  • increased cleaning and disinfection, and
  • screening policies “to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person” with a positive COVID diagnosis.

Again, there are additional “in-person” work requirements applicable to all businesses.

Additional Manufacturing-Specific Requirements

Further, “(m)anufacturing work may not commence … until the facility at which the work will be performed has been prepared to follow” strict workplace standards and protocols set forth at section 11(k) of the Order. In addition to the prior procedures, reopening manufacturing facilities must:

“1. Conduct a daily entry screening protocol for workers, contractors, suppliers, and any other individuals entering the facility, including a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with temperature screening as soon as no-touch thermometers can be obtained.

2. Create dedicated entry point(s) at every facility for daily screening as provided in subprovision (1) of this subsection, and ensure physical barriers are in place to prevent anyone from bypassing the screening.

3. Suspend all non-essential in-person visits, including tours.

4. Train workers on, at a minimum:

A. Routes by which the virus causing COVID-19 is transmitted from person to person.

B. Distance that the virus can travel in the air, as well as the time it remains viable in the air and on environmental surfaces.

C. Symptoms of COVID-19.

D. Steps the worker must take to notify the business or operation of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19.

E. Measures that the facility is taking to prevent worker exposure to the virus, as described in the COVID-19 preparedness and response plan required under section 11(a) of this order.

F. Rules that the worker must follow in order to prevent exposure to and spread of the virus.

G. The use of personal protective equipment, including the proper steps for putting it on and taking it off.

5. Reduce congestion in common spaces wherever practicable by, for example, closing salad bars and buffets within cafeterias and kitchens, requiring individuals to sit at least six feet from one another, placing markings on the floor to allow social distancing while standing in line, offering boxed food via delivery or pick-up points, and reducing cash payments.

6. Implement rotational shift schedules where possible (e.g., increasing the number of shifts, alternating days or weeks) to reduce the number of workers in the facility at the same time.

7. Stagger start times and meal times.

8. Install temporary physical barriers, where practicable, between work stations and cafeteria tables.

9. Create protocols for minimizing personal contact upon delivery of materials to the facility.

10. Adopt protocols to limit the sharing of tools and equipment to the maximum extent possible.

11. Frequently and thoroughly clean and disinfect high-touch surfaces, paying special attention to parts, products, and shared equipment (e.g., tools, machinery, vehicles).

12. Ensure there are sufficient hand-washing or hand-sanitizing stations at the worksite to enable easy access by workers, and discontinue use of hand dryers.

13. Notify plant leaders and potentially exposed individuals upon identification of a positive case of COVID-19 in the facility, as well as maintain a central log for symptomatic workers or workers who received a positive test for COVID-19.

14. Send potentially exposed individuals home upon identification of a positive case of COVID-19 in the facility.

15. Encourage workers to self-report to plant leaders as soon as possible after developing symptoms of COVID-19.

16. Shut areas of the manufacturing facility for cleaning and disinfection, as necessary, if a worker goes home because he or she is displaying symptoms of COVID-19.”

As the Governor’s Executive Orders continue to issue we anticipate that further sectors of the economy will be addressed. Please contact your Fraser Law Firm lawyer for timely assistance.

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

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Fraser 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.

Governor’s Executive Order Protecting Workers Exposed to Coronavirus From Discharge or Retaliation

Governor’s Executive Order Protecting Workers Exposed to Coronavirus From Discharge or Retaliation

Today, April 3, Governor Whitmer signed Executive Order 2020-36 (“EO-36”). Under the Governor’s prior “stay home” order, EO 2020-21. Employers were permitted to continue operations in essential industries and under other specified situations, see, Employer Actions to Comply with Michigan Stay-At-Home Order. The original stay home order did not address whether and under what situations employees permitted to work could refuse to report, and what actions employers were permitted to take to require those employees to report.

Today’s EO-36 addresses some of those questions. First, EO-36 prohibits any employer from discharging, disciplining, or retaliating against an employee who is otherwise permitted to work, but who stays home from work because the employee or a person in contact with the employee has symptoms of or tests positive for COVID-19.

The EO also expands on the Governor’s prior “stay home” order (EO 2020-21) by declaring as public policy that any person who has symptoms of the virus or tests positive, or who is exposed to someone symptomatic or positive, should remain at home. We interpret this Order to require an employee of a permissibly-continuing business performing in-person work to stay at home, and that the Employer of such persons will screen to prevent the reporting to work of such persons. Health care, first responder and other groups are exempted meaning that those employees are expected to continue to report to work.

Persons Addressed by EO-36

Key to the scope of this Order are the persons addressed. The Order identifies two groups of persons:

  1. Positive Tested or Display Symptoms. Persons who themselves “test positive for COVID-19 or who display one or more of the principal symptoms of COVID-19″ are referenced in “Section 2” of the Order. These persons are subject to the longest-duration stay-home requirements.
  2. Close Contact. Persons who “have had close contact with an individual who tests positive for COVID-19 or with an individual who displays one or more of the principal symptoms of COVID-19″ also are subject to specific stay home conditions.

For the purpose of this article, persons in these groups are here referred to as “Presumed Infectious.” Different and specific “stay home” periods are established for each Presumed Infectious group identified. Note that all key terms used in the Executive Order are defined there.

No Adverse Employment Action Against Presumed Infectious Employees

Presumed Infectious employees otherwise permitted to work who absent themselves to stay home are protected where their health status falls into either of the categories described in the immediately prior section of this article.

A Presumed Infectious protected employee must be treated by the Employer “as if he or she were taking medical leave under the Paid Medical Leave Act” (“PMLA”). Leave used may be debited and may be unpaid if the worker has exhausted paid leave entitlement. Significantly, we conservatively interpret EO-36 to mean that the length of such leave is unlimited by the amount of leave that a protected employee has accrued under the PMLA or any leave provision of the employer’s policy. EO-36 expressly states that the leave right extended to the employee under that Emergency Order “must extend, whether paid or unpaid, as long as the employee remains away from work within the time periods” specifically set forth in the two situations identified above.

Employers are prohibited from discharging, disciplining, or otherwise retaliating against a protected employee during the period of their protected status. The details of the duration of protected status are set out in Sections 2 and 3 of the Executive Order.

Workers Who are Not Protected Who Fail to Report

EO-36 does not expressly sanction discipline or discharge for employees who are permitted and expected by their Employer to work, but who fail or refuse to report. However, the Executive Order does so indirectly. The EO states:

“Nothing in this [EO-36] shall be taken to prevent an employer from discharging or disciplining an employee (1) Who is allowed to return to work … but declines to do so … or (3) [f]or any other reason that is not unlawful.”

Workers Exempted from Protections of EO-36

The following are expressly exempted from EO-36, with the result that they cannot refuse to report to work even if they meet the criteria set out in the Order:

“(a) Health care professionals.

(b) Workers at a health care facility…

(c) First responders (e.g., police officers, fire fighters, paramedics).

(d) Child protective service employees.

(e) Workers at child caring institutions…

(f) Workers at correctional facilities.”

Specification of Further Stay-at-Home Provisions For Those Possibly or Actually Infected, Including Employer Screening of In-Person Workers

EO-36 expands non-employment provisions of the prior stay home order. Under EO-36, no person who meet the criteria as “Presumed Infectious Persons” (test positive, display symptoms, or were exposed to someone meeting these criteria) should leave their home except to “the extent absolutely necessary to obtain food, medicine, medical care, or supplies that are needed to sustain or protect life” or for permitted recreational purposes. Further, Presumed Infectious persons who elect to leave home “should wear some form of covering over their nose and mouth, such as a homemade mask, scarf, bandana, or handkerchief.”

There is no qualification limiting the scope of this section of EO-36 other than the exempt industry groups identified above. Thus, we conservatively interpret this enhanced stay home directive to mean that Presumed Infectious employees providing in-person services to Employers whose businesses are otherwise permissibly continuing to operate must not report to work. Similarly, while EO-36 does not expressly so provide, we conservatively conclude that Employers who continue to operate must take reasonable measures to screen employees continuing to provide in-person services and bar them from entering the Employer’s premises for any reason.

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

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Fraser 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.

Lesson for Employers, as Tech Workers Sue Over Silicon Valley Anti-Poaching Pacts

Employers are sometimes tempted to enter into agreements with each other under the terms of which they agree not to recruit or hire each other’s employees. The U.S. Department of Justice takes the position that such agreements can be per se violations of the antitrust laws.

Continue reading Lesson for Employers, as Tech Workers Sue Over Silicon Valley Anti-Poaching Pacts

Do Your Employees Have the Right Stuff?

Using Competency Models in Strategic Human Resource Management
By: Michael P. James, J.D., M.B.A.

Human Resource Management Professionals:

Have you been asked to complete a skill or competency analysis for employees in your organization? Are you in charge of evaluating or designing a talent/knowledge-based compensation system? Would you like to create training and certification programs to ensure that employees possess the skills required for the positions they hold in your company? These responsibilities can be overwhelming, yet they are also critical to the success of your organization. Where should you start?

Continue reading Do Your Employees Have the Right Stuff?