Examine Both State and Federal Law

The State of Michigan, as well as the federal government, have passed various regulations designed to prohibit discrimination and encourage diversity in the workplace. Following Title VII of the Civil Rights Act of 1964, the concept of what diversity means in the workplace has changed substantially. In the 1960s, diversity referred to differences like skin color, national origin, race, religion, and sex. Title VII of the Civil Rights Act prohibits discrimination based on these factors. In recent years, the concept of diversity expanded to include people with disabilities, the elderly (i.e. age), and veterans. The Civil Rights Act of 1964 applies to employers with 15 or more workers.

Some other regulations address diversity in the workplace, which include (but may not be limited to) the Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Pregnancy Discrimination Act. If you have a business located in Michigan, you must remain up to date with Michigan legislation. For example, Michigan’s Elliott-Larsen Civil Rights Act prohibits employment practices that discriminate against an individual based on a variety of factors.

Adequately Train Managers and Workers

The United States Equal Employment Opportunity Commission has the task of enforcing federal laws that prohibit discrimination against job applicants or employees due to their race, color, religion, sex, age, national orientation, or disability. This agency recommends that managers at a company, as well all employees, are sufficiently trained on equal employment opportunity laws. Successful implementation of training programs can provide all people at a company with the information necessary to perform legally and ethically, free from improper behavior. As part of a training program, it is critical to remind all employees of the various policies that are in place. All employees must be held responsible and accountable for their behavior, and face swift corrective action if they violate any laws, policies or rules designed to prevent discrimination. 

Contact a Knowledgeable Corporate Attorney Today

Businesses must navigate critical issues of diversity all the time, and those may have become even more critical during the past year of pandemic. Contact Resnick Law PC today to schedule a free case evaluation. 

There is a substantial amount of paperwork involved in the on-boarding process for a new employee. One of the documents that a new employee may be asked to sign is a

The Nature of Non-Compete Agreements

In Michigan, a non-compete agreement is only enforceable in a court of law if it is reasonable. This requirement has been upheld in numerous court cases including Innovation Ventures LLC v. Liquid Manufacturing LLC, in which the Michigan Supreme Court held that a noncompete provision must be evaluated for reasonableness.

To determine whether a statement is reasonable, there are several elements that a court will consider:

• The type of business, industry, or position involved. This category involves the type of activity that the worker is prohibited from doing. A reasonable noncompete agreement might limit a former worker from working in a small niche within a company. A noncompete agreement that prohibits a worker from functioning in an industry in any degree, however, would likely be found unreasonable.
• The duration of the non-compete term the worker must follow. An agreement will be found unreasonable if it prohibits a worker from being employed for too long a period of time. For example, a noncompete agreement that restrict a worker from being employed for 10 years would likely be found unreasonable, but a one-year restriction is often found to be reasonable.
• The geographic location mentioned in the agreement. Noncompete agreements are often found to be unreasonable if they prohibit a worker from being employed in too large an area. While a noncompete agreement that prohibits a person from working in the United States would likely be found unreasonable, an agreement that prohibited a worker from being employed in a several mile radius would likely be found reasonable.
• The business interest that the agreement seeks to protect. This factor refers to a specific advantage that the worker might be able to use in competition against a former employer. Noncompete agreements must specify about what exact unfair advantage is involved. For example, an unfair advantage might include awareness of confidential information, knowledge of a customer base, and unique training.

It should be noted that this reasonableness standard only applies to employee noncompete agreements. Commercial non compete agreements follow a different standard. In either case, to make sure that a non-compete agreement is reasonable, it is often a wise idea to speak with a knowledgeable lawyer.

Speak with an Experienced Bankruptcy Law Attorney

If you are a worker who is attempting to challenging a non-compete agreement or a business founder seeking to craft an enforceable non-compete, an experienced corporate law attorney can help. Contact the Resnick Law, PC today to schedule an initial free case evaluation.

(image courtesy of Marten Bjork)

Employer protection of proprietary information, trade secrets, and potential liability can often lead some employers to take steps to monitor the electronic communications of their employees. How an employer chooses to do this may sometimes run afoul of the law, and therefore, employers who want to monitor employee communications have to be careful about how they do so.

Michigan is one of several states that limits the kind of information an employer may require an employee to provide regarding his or her private email or social media communication. Specifically, Michigan law prohibits employers from asking employees to provide usernames and passwords for private social media accounts or private email accounts. Employers are also prohibited from retaliating against employees who refuse to give this information, and from failing to hire someone because he or she refuses to provide this information.

Employers are prohibited from gathering and storing information relating to an employee’s associations, political activities, publications, or communications of non-employment activities without the employee’s written consent. The only exception to this prohibition is for activity that the employee engages in at work, on the employer’s premises, and that interferes with the duties of the employee or of other employees. When such records are kept conforming to the exception, the employer is required to keep the information gathered in the employee’s personnel file.

The employer cannot keep a secret file that the employee is not allowed to access. The employer is allowed to keep a separate file if the employee is suspected of being engaged in a criminal activity relating to his or her employment, for example, if the employee is providing the employer’s protected information to a competitor. In that situation, the employer can keep a separate file and only disclose it to the employee after the investigation is concluded or after two years, whichever comes first.

Employers may also generally be required to reveal employee information that may otherwise be protected if the employers are compelled to do so under state or federal law. This can happen if the employee is under investigation by state or federal law enforcement agencies that are seeking the information pursuant to a warrant, subpoena, or other court order.

In many cases, the kind of access an employer has depends on the circumstances and the employee’s expectation of privacy. For example, if an employer informs all employees that it has access to and regularly monitors employee internet history on work computers, the employees arguably have no expectation of privacy on work devices. Employee use of personal devices to conduct work duties may be more difficult for the employer to monitor, although not impossible.

Contact an Experienced Attorney

Striking a balance between security and employee privacy can sometimes be difficult and can lead to legal problems for you as an employer, as can instituting the wrong policies. If you are an employer contemplating employee privacy rules to protect proprietary information or the company image, you need to discuss your approach with an experienced electronic transactions dispute attorney. Contact us at Resnick Law, P.C., in Bloomfield Hills and Detroit, Michigan, to schedule a consultation.

When a business makes the decision to increase its workforce, it must also make a decision on how the added workers are to be hired and classified. Generally, a business can choose to hire people as employees or as independent contractors. How the person is classified makes a difference in how the person is paid and treated by the business.

Classifying a person as an independent contractor or as an employee is not simply a matter of the employer’s preference under Michigan law. There are rules and tests that are used to determine whether a person is properly classified. If an employer improperly classifies an employee as an independent contractor in order to avoid paying him or her more or providing certain benefits, it could end up costing the employer more in back taxes and penalties.

What makes a person an independent contractor instead of an employee is usually determined by analyzing the particular employment relationship. For example, if the worker has autonomy and works independently, producing work for set projects, using his or her own tools, and subcontracting some of the work to others, the worker is likely to be considered an independent contractor. In some cases, however, this may not be enough to prove that a person is an independent contractor, and the court may have to look more closely at the circumstances of the employment.

Some of the factors that indicate a person is an employee instead of an independent contractor include: close supervision or monitoring of the worker, the worker works exclusively for the employer during set hours, the worker has no discretion as to work hours and schedules, and generally, the worker has no control over how his or her work is performed. This is not an exhaustive list of the necessary factors, and a court can look more closely at the individual person’s situation.

The classification of a person as an employee also has serious implications for the business in terms of liability. For example, if a person is classified as an employee, the business may become liable for any injuries caused to others through the negligent acts committed by the employee in the course of his or her employment. Businesses are not liable in a similar fashion for the acts of independent contractors. In addition, the business has to have different agreements in order to own or control work product created by either an employee or an independent contractor.

There are additional employment issues to look out for even after determining the appropriate classification for a worker. For example, if a person is classified as an employee, the employer then has to determine whether the employee qualifies for overtime pay under state and federal law, as well as other benefits, and ensure that these are properly afforded to the employee.

Contact Us for Legal Guidance

It is important to discuss the possible implications of hiring employees or independent contractors with an experienced attorney before hiring anyone. Taking some time to go over the laws and regulations beforehand may save time and avoid legal challenges later on. For more information on employment issues that may affect your business, contact an experienced employment contract attorneys today at Resnick Law, P.C., in Bloomfield Hills and Detroit, Michigan to schedule a consultation.

(image courtesy of Stefan Stefancik)

Bankruptcy can impact many areas of a person’s life. After the bankruptcy is concluded, the person filing for bankruptcy has to recover financially and build up his or her credit again. This can make buying a home, renting an apartment, and even getting a job in some cases more difficult.

Not all jobs require candidates to reveal whether or not they have previously filed for bankruptcy. However, many jobs in the government that require security clearance, or in the financial sector where an employee may be required to handle money, are difficult to obtain if a person has previously filed for bankruptcy. In other fields of work, a prior bankruptcy filing will have no effect on a person’s employment prospects because it has nothing to do with the work the person will be doing.

In some cases, even when a person’s bankruptcy history is not requested on the initial employment application, it can be revealed through a mandatory background check. Bankruptcy information is also publicly available and reported on people’s credit report. Therefore, the bankruptcy information can still be seen on the credit report if the employer requests one on a prospective employee. Job seekers do not have to consent to the employer accessing their credit reports, but in most cases failing to give consent could be a reason for the employer to deny them a job.

For some employers, a past bankruptcy may signify irresponsibility. This is an arbitrary conclusion, especially for people who file bankruptcy due to unexpected expenses such as medical debt. If a candidate has a chance to explain the decision to file for bankruptcy, he or she may try to do so to mitigate the negative effects. The explanation is not legally required, but it may help because it may show the employer that the bankruptcy had nothing to do with the person’s ability to be responsible.

Employees who already have jobs cannot be fired solely for filing bankruptcy. Employees should be careful when handling issues related to their bankruptcy on company time, arriving to work late, or missing work because of the bankruptcy filing process. If an employee breaks employer rules, even if the breaking of the rules is related to the bankruptcy filing, the employer can fire the employee.

People who choose to be self-employed may not have the same concerns as those seeking formal employment from a business or organization. A self-employed person who has a history of bankruptcy may be affected by this history when seeking capital funding. In some cases, the person may have to provide collateral in order to get loans that other entrepreneurs may secure without collateral. In addition, the person may also be restricted from qualifying for some grants. Nevertheless, it is possible to start and flourish in a business after filing for bankruptcy.

Contact Us for Legal Assistance

Bankruptcy in some cases is unavoidable and necessary, but in some cases, people should consider other alternatives in order to avoid the consequences of filing for bankruptcy. If you are considering filing for bankruptcy, schedule a consultation to discuss bankruptcy, debt settlement, and other ways you can manage your debt. Call us at Resnick Law, P.C., in Bloomfield Hills and Detroit, Michigan.

(image courtesy of Joshua Ness)

There are some contracts by which the employer and employee enter into a relationship for a set period of time with a clear agreement of the relationship contract. These are known as express employment contracts. Most employment contracts are not express contracts. Most employment contracts in Michigan are for an indefinite period of time and are presumed to be at-will contracts that can be terminated by either the employer or employee for any reason, although notice may be required.

Employers can create what are known as implied contracts by including certain terms in the employee handbooks and manuals that they distribute to employees, such as those that govern employee discipline and termination. If an employer of at-will employees includes language in the handbook that employees can only be fired after progressive discipline, that employer may be required to abide by these terms, and may not be able to terminate an employee after only one disciplinary action.

Statements of general company policy within the employee handbook can also create this kind of implied contract. If the employer states that it is the company’s policy to encourage employees to work hard by offering incentives, or security from termination without good cause, these terms may be taken as implied terms creating a contract between the employer and employee.

Even with these concerns, employee handbooks and manuals are still beneficial and can be helpful in managing employee conduct. Employers have to be careful when drafting manuals and handbooks and include disclaimers in order to limit any misinterpretations and the possibility that an implied contract is formed. Disclaimers should warn employees that the handbook does not create an employment contract.

Additionally, the handbook should not include policies or general statements that the employer does not intend to follow. Even with a disclaimer, the employer’s inclusion of terms that go against the general understanding of an at-will contract can cause problems down the road. Even if the employee does not win in court, the cost of defending the lawsuit can be expensive. It is better to take steps to ensure that there are no misunderstandings before lawsuits are filed.

Contact Us for More Information

If you are an employer wondering if you need to have an employee handbook or manual and how distributing such a manual will affect the contractual relationship between you and your employees, you should discuss your concerns with an experienced employment contract attorney. Before distributing an employee handbook to your employees, call us at Resnick Law, P.C., in Bloomfield Hills and Detroit, Michigan, to schedule a consultation.

(image courtesy of John-Mark Kuznietsov)