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By Karen Gentry | MiBiz
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WEST MICHIGAN — It’s a time of new regulations under some federal laws, as a result of agencies reviewing existing rules and considering updates, and because of more vigorous enforcement by the Department of Labor and the Equal Employment Opportunity Commission.

It’s important for employers to pay attention to what these agencies are doing, according to Rob Dubault, partner with Warner Norcross & Judd in the employment practice group in Muskegon. Dubault was a presenter at the firm’s recent HR seminar in Grand Rapids and spoke on labor and employment legal issues in a session meant to be a survey of state and federal employment laws employers deal with on a day-to-day basis.

“(Companies need to) make sure policies are up-to-date and that supervisors and managers understand and comply with the policies. We consistently emphasize that to our clients,” Dubault told MiBiz. “It’s a first step in avoiding a lot of these lawsuits and investigations.”

Increased activities by the National Labor Relations Board have generally been pro-labor, as the pendulum has swung with the change from a Republican to a Democratic administration. Dubault said recently published NLRB rules include changes to the election process when a union seeks to organize employees. This could result in elections being held more quickly and a posting requirement that would inform employees of their rights under NLRB.

Dubault said the postings include information on employees’ right to form, join and assist unions as well as their right to refrain from those activities. Dubault believes NLRB aims to educate all workers so they understand that the NLRB protects them and not just unionized workers.

Retaliation is another area where recent Supreme Court decisions have tended to favor employees. Dubault outlined a case where verbal complaints triggered protection from retaliation. The courts ruled that an employer violated the National Labor Relations Act when an employee was terminated for complaining of favoritism toward certain employees who were rehired by the employer. That employee suggested that she and her other coworkers should quit so they could be rehired and get raises.

The NLRB found that the employer launched a preemptive strike in order to prevent the employee from discussing the issue with her co-workers. Employees have the right under the NLRA to determine what wages the employer is paying and cannot be terminated because of wage discussions.

The Americans with Disabilities Act amendments that went into effect in 2009 expands ADA coverage and broadens who has a disability under that law. Dubault said the first decision interpreting the new amendments took place in Indiana. In that case, a company terminated an individual whose cancer was in remission, prompting an ADA lawsuit. The courts ruled that this individual is a person with a disability under the act. Under the amended act, impairment does not need to prevent or severely or significantly restrict a major life activity to be “substantially limiting.” The court denied the employer’s motion to dismiss.

Dubault said there has been a lot of litigation under the Fair Labor Standards Act particularly involving clothing changes. In one case, the court ruled that putting on and taking off protective clothing were principal activities and time spent should be compensated. Other FLSA litigation has involved time spent booting up computers, where the courts ruled that a group of employees could band together and take part in a class action lawsuit. Dubault said if a group of people has something in common, they may proceed with their claim as a group rather than go ahead with many individual claims.

“Make sure you’re complying with FLSA because there’s a lot out there,” Dubault said.

On the topic of medical marijuana, Dubault noted that a Michigan plaintiff’s case was thrown out. Although the employee had a medical marijuana card, he was terminated for testing positive for marijuana at a Wal-Mart in Battle Creek. Wal-Mart has a zero tolerance drug policy.

“The Michigan law protects from certain types of criminal prosecution, but it doesn’t give you any rights in an employment setting,” Dubault said.

Don’t expect any significant changes in federal labor and employment law until after the next election in 2012, Dubault said. However, he does expect coming changes in Michigan law, particularly laws impacting the public sector. Changes coming may include public employees paying 20 percent of their health insurance premiums and a proposed change to the prevailing wage. Dubault said legislators want to do away with the prevailing wage that has typically been a union-scale wage.

“It’s an attempt by the current administration and legislature to try and make Michigan a more business-friendly environment,” Dubault said.