Legal Updates

January 2008

Recent Developments in Labor and Employment Law (cont...)

MICHIGAN COURT OF APPEALS
1. Same-sex Domestic Partner Benefits
  
  National Pride at Work, Inc. v. Governor of Michigan, 274 Mich App 147 (2007). On November 2, 2004, Michigan voters approved a proposal, which amended the state constitution by adding article 1, section 25 (marriage amendment or amendment). That section provides: "To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose." The amendment took effect on December 18, 2004. Subsequently, National Pride at Work, Inc., and employees of seven different public employers filed a lawsuit against the Governor, the Attorney General and the City of Kalamazoo, asking the court to hold that the constitutional amendment does not prohibit public employers from providing health benefits to employees' same-sex domestic partners. The trial court granted Plaintiffs summary judgment holding that the amendment does not prohibit public employers from entering into contractual agreements with their employees to provide domestic partner benefits or voluntarily providing domestic partner benefits as a matter of policy." The Attorney General appealed to the Court of Appeals.
  
  The Court of Appeals held that by officially recognizing a same-sex union through the vehicle of a domestic partnership agreement, public employers give same-sex domestic couples similar status to that of married couples. By recognizing a domestic partnership agreement for the purpose of providing benefits, the state plan and the plans of the University of Michigan, Michigan State University and the City of Kalamazoo, run directly afoul of the plain language of the amendment. The court also rejected arguments that that amendment violates the equal protection clause of the Michigan Constitution.
  
  Importantly, this case did not address benefits that private employers provide, and no one has even suggested stretching the marriage amendment to reach private employers. So, if you are a private employer this case should not affect your policies or benefit plans. In addition, the Michigan Supreme Court has granted the plaintiffs leave to appeal. Thus, this is not the final decision on this matter.
2. Disability
  
  Buck v Thomas M Cooley Law School, 272 Mich App 93 (2006). The lower court erred in refusing to grant summary disposition to the defendant law school on a student’s claim that the school violated the PWDCRA by 1) not recognizing or diagnosing her disability, and 2) failing to fully grant the plaintiff’s requested accommodation. "[T]here is nothing in the PWDCRA that requires an educational institution to provide an opinion on why a student is having academic difficulties, or to diagnose any conditions a student may have." Moreover, "[b]ecause the PWDCRA does not impose a duty on defendant to properly diagnose an alleged learning disability..." the district court erred in concluding that the law school should have referred the plaintiff to a psychologist after she complained that she was "slow" and nervous. "Before plaintiff provided documentation of a disability and requested an accommodation, defendant had no statutory duty to act on behalf of plaintiff..."
  
  The law school did not unreasonably refuse to grant one of the two accommodations the plaintiff eventually requested. The law school granted the thrust of the requested accommodation by giving the plaintiff double time to take exams. "[I]t was not unreasonable for defendant to refuse to waive its settled policy for dropping courses where the recommendation regarding plaintiff’s course load was [based on a suggestion that the plaintiff suffered from "high levels of ‘distress, anxiety, and pressure’" and] unrelated to what was diagnosed as her primary deficiency."
3. Sex Harassment
  
  Elezovic v Bennett, 2007 Mich App Lexis 115 (2007). In Elezovic v Ford Motor Co, 472 Mich 408 (2005), the Court held that an agent who sexually harasses an employee in the workplace can be held individually liable under the Elliot-Larsen Civil Rights Act. On remand, the lower court granted summary disposition to the individual defendant finding that he was not an agent of Ford because his employer had not authorized him to sexually harass the plaintiff. The Court of Appeals reversed holding, "In summary, under the CRA, an ‘employer’ includes an agent of the employing entity. ‘Agents’ are persons to whom the employing agency delegates supervisory power and authority over subordinates. An agent can be held directly and individually liable if he engaged in discriminatory behavior in violation of the CRA while acting in his capacity as the victim’s employer."
4. Whistleblower Act
  
  Lewandowski v Nuclear Management Co, LLC, 272 Mich App 120 (2006). The plaintiff’s whistleblower claim was properly dismissed on summary disposition because the Nuclear Regulatory Commission, the entity to which the plaintiff allegedly reported regulatory violations, was not a "public body" under the Michigan statute. The WPA prohibits retaliation against employees who file reports with state or local agencies. "Given the clearly state and local context to construe references to "commission," "agency" and "law enforcement agency" to include federal agencies or commissions. However, under the Act a public body is also defined as a "law enforcement agency," which the Court held includes federal law enforcement agencies.
  
  The trial court did not err in denying the plaintiff’s motion to amend to include a public policy discharge claim. Such a claim would be preempted by the federal Atomic Energy Act, which prohibits retaliation against employees who report alleged misconduct to the Nuclear Regulatory Commission.
  
  Ernsting v Ave Maria College, 274 Mich App 506 (2007). The plaintiff’s whistleblower claim was improperly dismissed because employee engaged in protected activity by reporting violations to the Department of Education. Importantly, although the employee did not file a report with a state or local agency, the Michigan Court of Appeals defined law enforcement agency expansively to include the United States Department of Education. Thus, although the plaintiff had not reported a suspected violation to a traditional law enforcement agency, for example one with arrest powers, the employee’s report to the Department of Education was considered protected under the Act.

NATIONAL LABOR RELATIONS BOARD
1. Oakwood Healthcare, Inc, 348 NLRB No. 37 (2006). In this case, the union sought to have 12 Oakwood Healthcare charge nurses included in the bargaining unit of nurses. RNs at the hospital serve as charge nurses. Charge nurses are responsible for overseeing their patient care units, and they assign other RNs, licensed practical nurses (LPNs), nursing assistants, technicians, and paramedics to patients on their shifts. Charge nurses also monitor the patients in the unit, meet with doctors and the patients' family members, and follow up on unusual incidents. Charge nurses may also take on their own patient load, but those who do assume patient loads will sometimes, but not always, take less than a full complement of patients.
  
  The National Labor Relations Act, Section 2(11) defines "supervisor" as any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
  
  Under this definition, individuals are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 supervisory functions (e.g., "assign" and "responsibly to direct") listed in Section 2(11); (2) their "exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment;" and (3) their authority is held "in the interest of the employer."
  
  The NLRB held that "assign" involves designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee. That is, the place, time, and work of an employee are part of his/her terms and conditions of employment. In the health care setting, the term "assign" encompasses the charge nurses' responsibility to assign nurses and aides to particular patients.
  
  The NLRB held that "responsibility to direct" means that the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly. Thus, to establish accountability for purposes of responsible direction, it must be shown that the employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary. It also must be shown that there is a prospect of adverse consequences for the putative supervisor if he/she does not take these steps.
  
  Addressing independent judgment, the NLRB held that professional or technical judgments involving the use of independent judgment are supervisory if they involve one of the 12 supervisory functions of Section 2(11). Thus, for example, a registered nurse who makes the "professional judgment" that a catheter needs to be changed may be performing a supervisory function when he/she responsibly directs a nursing assistant in the performance of that work. Whether the registered nurse is a 2(11) supervisor will depend on whether his or her responsible direction is performed with the degree of discretion required to reflect independent judgment. However, judgment is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective-bargaining agreement.
  
  Applying these principles, the NLRB held that the Oakwood charge nurses were supervisors as defined by the NLRA and could not be included in the collective bargaining unit of nurses.

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