Articles Discussing General Topics Under Michigan Labor & Employment Law.

On September 5, 2018, the Michigan Legislature adopted as law a proposed ballot measure that will require employers to provide their employees paid leave that can be used for “sick” and “safe” time purposes. Michigan’s Earned Sick Time Act (ESTA) is the Midwest’s first statewide paid sick and safe time (PSST) law. It follows a common theme familiar to employers subject to one or more PSST laws, but as currently written, omits some common PSST components.

The Michigan Legislature has been busy during the first six months of 2018, addressing several issues that will impact employers across the state. Perhaps most significantly, the Michigan Legislature may send the issue of mandatory paid sick time to voters on their November ballot following the submission of over 380,000 signatures in support of the measure. Also, after a contentious ballot initiative process that made its way to the state Supreme Court, the Michigan Legislature repealed the state’s prevailing wage law, ensuring that future public works projects will no longer need to comply with prevailing wage requirements. Finally, the Michigan Legislature amended the state’s Wage and Fringe Benefit Act to clarify compliance for employers that pay employees on a monthly basis. Additional details on these developments can be found below.

On March 26, 2018, Michigan Governor Rick Snyder signed a bill that prevents local governments from regulating the questions employers may ask of applicants during job interviews. The bill amends a 2015 law that prohibited local governments from banning salary history inquiries on job applications.

On March 26, 2018, Michigan Governor Rick Snyder signed a bill that prohibits local governments from regulating the information employers can request from prospective employees during the interview process. Public Act 84 amends the Local Government Labor Regulatory Limitation Act (MCL §123.1384), passed in 2015, which imposes a similar restriction on local governments regarding the information employers can request on an employment application.

The Michigan Department of Civil Rights has updated a poster that employers must post at their Michigan work sites. The poster—Michigan Law Prohibits Discrimination—is a required posting under the Michigan Elliott Larsen Civil Rights Act and the Michigan Persons with Disabilities Civil Rights Act (MPWDA). The new poster was recently released and has reinserted language addressing accommodation under the MPWDA that had been eliminated in 2011. The new poster now states that “Persons with disabilities needing accommodation for employment must notify their employers in writing within 182 days.”

On March 22, 2016, Michigan joined Wisconsin, Texas, Louisiana, and Tennessee by amending its Franchise Investment Law to make it clear that unless otherwise specifically provided for in the franchise agreement, a franchisee is considered the sole employer of workers to whom it pays wages or provides a benefit plan.1 This amendment – one of six bills signed into law by Governor Rick Snyder since December 2015 – is designed to protect franchisors in the wake of the uncertainty created by the National Labor Relations Board’s ruling in Browning-Ferris Industries of California, Inc.2 pertaining to when a company may be considered a joint employer.

In a published decision that may surprise employers, the Michigan Court of Appeals ruled that an employee terminated for testing positive for marijuana but who possesses a medical marijuana card1 is not disqualified from receiving unemployment benefits so long as the employee’s use of marijuana is in accordance with the Michigan Medical Marihuana Act (“MMMA”), MCL 333.26421, et seq. In Braska v. Challenge Manufacturing Co., No. 313932,2 the court held that when an employee is terminated as a result of a positive drug test caused by the legal use of medical marijuana, the denial of unemployment benefits constitutes a “penalty” in violation of the MMMA’s immunity clause. The court avoided the issue of whether the MMMA governs the conduct of private employers by finding that a decision made by the Michigan Compensation Appellate Commission (“MCAC”) involves only state action.3 In the absence of guidance from any Michigan appellate court, employers may continue to rely on the U.S. Court of Appeals for the Sixth Circuit’s decision in Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012), which concluded that the MMMA does not regulate the conduct of private employers.

Michigan Governor Rick Snyder has signed the Workforce Opportunity Wage Act, mandating gradual increases in the state’s minimum wage to $9.25 an hour by January 1, 2018. The Act ties increases to the rate of inflation beginning 2019.

On Tuesday, May 27, 2014, Michigan Governor Rick Snyder signed the Workplace Opportunity Wage Act (S.B. 934) into law. The Act will increase Michigan’s minimum wage from $7.40 to $9.25 per hour over the next four years – an overall increase of 25%. The increase will occur in phases beginning on September 1, 2014 as set forth below.

A new Michigan law signed by Governor Rick Snyder prohibits employers and prospective employers from requiring employees and applicants to grant access to, allow observation of, or disclose information used to access private Internet and e-mail accounts, including social media networks such as Facebook. This ban also applies to educational institutions and their students. Michigan’s Internet Privacy Protection Act, Public Act 478 of 2012, is effective as of December 28, 2012. The new law also prohibits employers from discharging, disciplining, failing to hire, or otherwise penalizing those who refuse to disclose information that allows access to such accounts.

On December 28, 2012, Michigan joined California,1 Illinois,2 and Maryland3 in enacting a social media password protection law when Governor Rick Snyder signed the “Internet Privacy Protection Act” (IPPA or the “Act”). In an accompanying statement, the governor declared that “cyber security is important to the reinvention of Michigan, and protecting the private internet accounts of residents is a part of that,” and that “potential employees and students should be judged on their skills and abilities, not private online activity.” To accomplish these objectives, the IPPA, like the other states’ social media legislation, generally prohibits employers from gaining access to applicants’ or employees’ personal social media accounts. The Act, however, also permits employers to access employees’ use of employer equipment and systems and allows for investigations, under certain circumstances, of employees’ personal social media accounts. While relatively straightforward, the Act will require businesses operating in Michigan to grapple with a range of interpretive challenges.

Despite angry protests at the state capitol, Michigan’s Governor Rick Snyder signed a right-to-work statute into law on December 11. Michigan joins 23 other states in exercising the 65-year-old option under the Taft-Hartley amendments to the National Labor Relations Act to prohibit “union security” clauses (in general, clauses that require employees to pay dues to a union as a condition of employment) in collective bargaining agreements.

Approximately 17.5 percent of Michigan workers are dues-paying union members, making it the fifth most unionized state in the nation. Michigan is one of the least likely candidates to adopt right-to-work legislation. However, on Tuesday, December 11, 2012, the Republican Governor of Michigan, Rick Snyder, signed Public Acts 348 and 349 of 2012 into law, making Michigan the twenty-forth right-to-work state. This is a stunning development in the home state of the United Auto Workers (UAW), considered to be a strong, pro-labor state.

An employee who was terminated after testing positive for marijuana (which he obtained and used pursuant to Michigan’s medical marijuana law) has stated no legal claims against his employer, the U.S. Court of Appeals for the Sixth Circuit has ruled. Casias v. Wal-Mart Stores, Inc., No. 11-1227 (6th Cir. Sept. 19, 2012). The Court affirmed dismissal of the plaintiff’s wrongful discharge case against the employer.