In the employment law arena, the best defense is a great offense. Employers can avoid many legal issues by consulting with us before making major employment decisions. We assist our clients in developing and implementing personnel policies and procedures that are designed to avoid costly litigation. We regularly conduct employment law seminars for our clients and the West Michigan business community to provide them with the knowledge they need to minimize their exposure to lawsuits arising from the employer-employee relationship. Should litigation become necessary, our employment law attorneys have the trial skills and experience necessary to successfully protect our clients' interests.
Areas in which we assist employers include issues involving:
Employment applications can be used to: dispel contractual presumptions and clarify at-will employment; reduce the employer's exposure when investigating past employment and other information; give the employer grounds for termination if false statements contained in the application are discovered.
Employers may legally pose questions that test a candidate's motivation, maturity, willingness to accept instruction, interest in the job, ability to communicate and personality. The following are examples of the kinds of questions that may be asked: What are some of the responsibilities you had in previous jobs? What skills and traits do you have that suit the needs of our company? What attracted you about the position? What are some of your outside interests? How would you describe your relationship to those with whom you work? What are some of your short and long-term goals? Why do you want to change jobs? However, inquiries into an applicant's race, color, age, sex, religion and national origin are illegal under Title VII of The Civil Rights Act. The Michigan Department of Civil Rights has issued a publication, which illustrates many interview questions that are legal, as well as those found illegal. Follow the link to view this publication:www.michigan.gov/documents/pre-employment_inquery_guide
Federal laws state that it is illegal to be denied employment or fired from a job as a result of current participation in a drug or alcohol treatment program as long as the enrollment does not interfere with the person's ability to do the job. However, it is important to point out that drug and alcohol tests of job applicants are neither encouraged nor prohibited by the Americans with Disabilities Act, and the results of such tests may be used as a basis for disciplinary action or employment decisions. In short, an employee or applicant who is currently engaging in illegal drug use is not protected under federal ADA law. Additionally, an alcoholic who is not in treatment and who cannot perform his/her job duties or whose employment presents a threat to the safety of others is not protected under the ADA.
Under Michigan law, an 'at-will' employee can be fired for any reason or no reason at all. Even an arbitrary and capricious discharge is not actionable if the employee is terminable at-will. However, an at-will employee may have an action for wrongful discharge if the discharge was contrary to public policy. The three public policy exceptions to the at-will doctrine apply when: The employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty. In Michigan, there are at least four statutes that prohibit the discharge of employees who act in accordance with a statutory right or duty: The Elliot-Larsen Civil Rights Act The Michigan Occupational Safety and Health Act The Persons with Disabilities Civil Right Act The Whistleblowers' Protection Act The employee is discharged for the failure or refusal to violate the law in the course of employment. The employee is discharged for exercising a right conferred by a well-established legislative enactment. For example, a termination for being summoned for grand jury testimony violates the public policy expressed in the grand jury system.
Companies often violate the law by not understanding the distinction between employee and independent contractor status. This distinction has become crucial due to increased IRS investigations. The IRS generally opposes independent status because companies who employ independents don't have to withhold income or employment taxes, resulting in many dollars of compensation that go unreported. No precise legal definition of an independent contractor exists. The most significant factors that courts look at when making this distinction are: The company's right of control over the worker Whether the company carries indemnity or liability insurance for the worker Whether the individual works exclusively for the company or is permitted to work for others at the same time This list is not meant to be all-inclusive, but rather, to help you determine whether your personnel fall into either the employee or independent category. For further guidance, please consult the IRS guidelines.
Employee handbooks can be very valuable to an employer, if used appropriately. However, oftentimes the handbook is used against an employer, especially when the employer is not following its own guidelines. However, effective personnel relations and a successful plan for litigation avoidance begin with an employee manual. In addition to giving employees a clear description of their benefits, a proper manual sets the rules for on-the-job behavior (i.e., reporting absences, authorized use of telephones, handling complaints, etc.), discusses criteria used for evaluating job performance, and reduces legal suits relating to "guaranteed" job security, unfair discharge and other claims. In addition, it may boost employee morale. Despite these advantages, many companies do not use employee manuals; others fail to keep current with changing EEOC regulations and employment laws, and to incorporate such changes in their own publications. If staffing doesn't afford time to create a manual, this is one area where a company would be well advised to hire a lawyer to draft one. A few thousand dollars spent on a manual today can save you tens of thousands of dollars in a lawsuit tomorrow.
Some handbooks are necessarily more thorough than others. However, at a minimum every handbook should have provisions addressing: Welcome / Introduction Terms of Employment Hours & Overtime Employee Benefits Rules of Conduct Disability Accommodation Policy Sexual Harassment Policy Termination Procedure Non-Discrimination Policy Employee Acknowledgement Amendment - Companies with written personnel policies should always reserve the right to alter or amend promises of benefits at any time, with or without notice, for maximum protection. Such a disclaimer should appear in bold, conspicuous language in all manuals and written policy statements.
An anti-harassment policy and complaint procedure should contain, at a minimum, the following elements: A clear explanation of prohibited conduct; Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation; A clearly-described complaint process that provides accessible avenues of complaint (don't require a report to a supervisor where the supervisor may be a harasser - designate someone outside the chain of command); Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible; A complaint process that provides a prompt, thorough, and impartial investigation; and Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred. Recent United States Supreme Court decisions make clear that employers are subject to vicarious liability for unlawful harassment by its supervisors. The standard of liability is premised on two principles: An employer is responsible for the acts of its supervisors Employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.
The Wages & Fringe Benefits Act applies to all public and private employers in Michigan. It dictates how and when employers are to pay wages and fringe benefits to employees. It also prohibits certain employer actions with respect to wages and fringe benefits. Violations of the Wages & Fringe Benefits Act may be enforced in court or through the Wage & Hour Division of the Michigan Department of Consumer and Industry Services.
This act applies to all Michigan employers that have four or more employees. It provides the employee with three rights with respect to his or her personnel records: The right to review the records upon a written request; The right to a copy of the records; The right to file a written response to the records if the employee disagrees with something in the file
This act prohibits an employer from requiring prospective employee or current employees to take a polygraph examination. The act also prohibits an employer from threatening to require such an exam.
Yes, so long as they are reasonable. If a covenant not to compete is unreasonable, a court may re-write the covenant to make it reasonable. In order to be enforceable, the covenant not to compete must be reasonable with respect to its duration, its geographic area, and the type of employment or line of business sought to be protected.