News & Info

With a newly elected Republican President, it has been widely expected that the administrative agencies responsible for enforcing federal employment laws would begin to take a more “business friendly” approach. That sentiment was confirmed with the U.S. Department of Labor’s (“DOL”) announcement that it has withdrawn its written administrator interpretations addressing joint employment and the misclassification of employees as independent contractors.

The U.S. Department of Education has withdrawn enforcement guidance issued by its Office of Civil Rights (OCR) on January 7, 2015, stating that Title IX of the Education Amendments Act of 1972 (Title IX) requires access to sex-segregated facilities, such as restrooms, based on a student’s gender identity rather than biological sex. Therefore, the OCR will no longer rely upon the views expressed in that guidance when evaluating whether a public school has violated Title IX.

On January 31, 2017, the Michigan Court of Appeals held that a valid prenuptial agreement may not waive the trial court’s power to invade one spouse’s separate property and award some of it to the other spouse in their divorce. For some, this means that their Prenuptial Agreement is not as iron clad as they had hoped or expected. The case is Allard v Allard, which was before the Court of Appeals for the second time, on remand from the Michigan Supreme Court.

On January 27, 2017, President Trump signed an Executive Order prohibiting foreign nationals from seven countries (Iraq, Iran, Syria, Yemen, Sudan, Somalia and Libya) from entering the United States for 90 days.

Trademark rights are created through use, and the value of a trademark is the goodwill that is generated through consumers’ recognition of the mark as a designation of the source or origin of products and/or services.

The U.S. Court of Appeals for the Tenth Circuit ended 2016 with a bang last week when it ruled that the SEC’s long-standing practice of using “non-appointed” Administrative Law Judges (“ALJs”) to preside over agency enforcement hearings violates the Appointment Clause of the U.S. Constitution. The decision in Bandimere v SEC was accompanied by a forceful dissent and establishes a split of opinion among the Circuit Courts, all of which helps to set the stage for an appeal to the U.S. Supreme Court later this year.

The U.S. Department of Labor (DOL) has filed an appeal with the Fifth Circuit Court of Appeals challenging the District Court’s recent ruling that blocked enactment of the new DOL overtime rules.

In a long awaited ruling, a federal court in Texas entered a nationwide injunction late yesterday blocking the U.S. Department of Labor from implementing its rules that established new salary thresholds and would have expanded overtime protections to millions of employees.

As previously stated in our Client Alert sent last May, U.S. Department of Labor Issues Final Overtime Regulations, the DOL overtime rules will take effect December 1, 2016.

OSHA has again announced it will extend the effective date of its anti-retaliation provisions that were issued earlier this year.

Business owners, including many manufacturers and vendors, often think twice prior to hiring counsel to review the standard contracts of their business. This hesitancy is understandable since legal fees can quickly accumulate and short run returns are not always immediately evident. However, a recent Michigan Court of Appeals case emphatically demonstrates why it is important for business owners to partner with a good lawyer to achieve objectives and identify risks in a manner that allows the business to maximize its long term earning potential while minimizing its risk exposure.

In a rare example of bipartisan effort to correct a problem created by the Affordable Care Act, Congress passed and President Obama signed the “21st Century Cures Act” (Public Law No. 114-255) into law in December 2016. Among other things, the law allows small employers with fewer than 50 full-time employees to create a new form of health reimbursement account (“HRA”) to help their employees pay for certain medical expenses. The new HRA can be used to reimburse employees for qualified out-of-pocket medical expenses and for non-group plan health insurance premiums, including plans purchased on public health care exchanges under the Affordable Care Act.

If your business offers products or services to residents of the European Union, you may be required to appoint a Data Protection Officer.

Most businesses take steps to implement and maintain reasonable security procedures and practices in order to protect information from unauthorized access, destruction, use, modification or disclosure. A good cybersecurity strategy should not only manage security threats—it should also proactively address how a business will respond to security breaches.

Spring is a common time for homeowners and businesses to engage in “spring cleaning,” tackling projects which acquire attention to better position the home or business for the long run. It often behooves a business to review its legal documentation every few years as part of its “spring cleaning.”

As an estate planning attorney, I often find that individuals who have recently been divorced are not aware of the importance of revising their estate plan. After a divorce, particularly one that is long and drawn out, the last thing a client wants to do is spend more in legal fees. However, failing to promptly attend to estate planning can be financially disastrous.

Like many in West Michigan, you may have felt the financial pinch of the recent housing crisis, where property values dropped significantly and it was increasingly difficult to qualify for financing. A bit of good news is that it is now easier for qualifying sellers to get back money they paid on their state transfer tax in recent years.

Sports gambling has been a popular topic for the past few months with Fan Duel and Draft Kings bombarding the market with a barrage of messages beginning with the commencement of the NFL and NCAA College football seasons. Remarkably, for a few weeks, the fantasy sports brands felt even more ubiquitous than the ever present soft drink and beer advertising which litters fall Saturdays and Sundays. More recently, messaging from Fan Duel and Draft Kings has come to a crashing halt as the entities have faced legal investigations and challenges across the country.

Although we are now in a new year, some things still remain the same. The U.S. Department of Labor (“DOL”), which last July announced an increased focus in identifying whether independent contractors are actually employees protected by the Fair Labor Standards Act (“FLSA”), continues to aggressively enforce wage and hour laws against employers. On January 20, 2016, the Wage and Hour Division of the DOL issued Administrator Interpretation No. 2016-1 which states that the DOL will increase its enforcement efforts into whether an employer is a “joint employer” under the FLSA. The Interpretation states that the DOL will now apply the FLSA's definition of “employ” as broadly as possible. The end result is that the DOL will likely find more liability for those entities whose workers are employed, or supplied by third-parties and are typically referred to by the contracting parties as “contractors.”

“Possession is 9/10ths of the law” means that ownership is easier to establish if one has possession of something, and more difficult to prove if one does not. Possession is also critical to payment, and several Michigan laws support the right to retain possession until paid. Perhaps the broadest example of a possessory lien in Michigan is found at MCL 570.185-186. Under those provisions, any “mechanic, artisan, or tradesman” who takes possession of an “article of value” and constructs, completes, alters, fits, or repairs such “article of value”, may retain possession of that article until all charges for the “labor and skill applied” to the article are paid.

Thank to all those that attended our Michigan Townships Association Reception on Tuesday, April 11 at Troppo in Lansing.

In a previous edition of this publication, we highlighted the Michigan Court of Appeals 2016 Opinion in the case of Cramer v. Oakley, where the Court held that a public body’s duty to “grant” and “fulfill” a FOIA request were distinct concepts. Under that Opinion, municipalities were only required to respond to a FOIA request within the statutorily prescribed five (5) business days, but could “fulfill” the request (i.e., actually provide the records) at a later date as long as there was no inordinate delay. This is no longer the law! On April 5, 2017, the Supreme Court vacated the decision rendered by the Court of Appeals in Cramer v Oakley. The repercussions of the Supreme Court’s Order are that municipalities can no longer rely on the concept that granting and fulfilling a FOIA request are distinct or separate from one another.

Family law is not typically at the top of the list of issues concerning municipalities. Rarely—if ever—are divorce, custody, or child support mentioned when considering a text amendment to a zoning ordinance! Nevertheless, certain matters within the arena of family law might crop up within your municipality from time to time, particularly concerning current or former municipal employees who participate in a retirement or pension plan and may be going through a divorce.

The Michigan Townships Association 64th Annual Educational Conference will be held at the Lansing Center from April 10 through 13, 2017. The Conference features educational programs and workshops for township officials, appointed personnel and township employees.

Governor Snyder recently signed legislation to further shield municipalities from lawsuits filed by people who trip and fall on sidewalks. Enacted on January 4, 2017, Public Act 419 of 2016 (“Act 419”) specifies that in a civil action, a municipal corporation may assert any defense available under the common law with respect to a premises liability claim, including, but not limited to, a defense that the condition was “open and obvious.”

In a rare example of bipartisan effort to correct a problem created by the Affordable Care Act, Congress passed and President Obama signed the “21st Century Cures Act” (Public Law No. 114-255) into law in December 2016. Among other things, the law allows small employers, including public employers, with fewer than 50 full-time employees to create a new form of health reimbursement account (“HRA”) to help their employees pay for certain medical expenses. The new HRA can be used to reimburse employees for qualified out-of-pocket medical expenses and for non-group plan health insurance premiums, including plans purchased on public health care exchanges under the Affordable Care Act.

In the most recent edition of our Local Government Newsletter, we reported on the State’s new Medical Marihuana Facilities Licensing Act, Public Act 281 of 2016 (“Act 281”). Under Act 281, municipalities have the option of allowing five types of marihuana facilities in their jurisdiction. The five types of facilities that can be licensed and permitted include the following: grower, processor, provisioning center, secure transporter and safety compliance facility.

The Michigan Townships Association 64th Annual Educa-tional Conference will be held at the Lansing Center from April 10 through 13, 2017. The Conference features educational programs and workshops for township officials, appointed personnel and township employees.

In the final days of the “lame duck” session, the Michigan Legislature adopted a package of bills to exempt voter-approved library millages from capture by most tax increment entities. The Senate adopted six separate bills (Senate Bill Nos. 619 through 624) that were previously approved by the House, to amend the Tax Increment Financing Act, Downtown Development Authority Act, Corridor Improvement Authority Act, Local Development Finance Authority Act, Historical Neighborhood Tax Increment Finance Authority Act, and the Water Resource Improvement Tax Increment Finance Authority Act, to exempt from capture library millages adopted by voters after December 31, 2016.

A recent case decided by the Michigan Court of Appeals, Cramer v. Oakley, has shed new insight into what it means for a municipality to timely comply with a FOIA request. The distinction recognized by the court in regards to timely complying with a FOIA request is based on the difference between granting and fulfilling a request.

In 1994, Michigan’s voters approved “Proposal A.” A key feature of Proposal A limited annual increases in property tax assessments to the lesser of 5%, or the rate of inflation, until a property is transferred. The calculated tax assessment is called the “taxable value.” The local assessor still keeps track of the “state equalized value,” (“SEV”) which is theoretically one-half of the property’s market value. When the property is transferred, the taxable value is automatically increased to the SEV– usually referred to as “uncapping.”

Michigan is finally administering a procedure for “Medicaid recovery” of financial support paid under the Medicaid system. Medicaid is a needs-based program to provide long-term nursing care (among other purposes). To qualify for Medicaid, a single person must have $2,000 or less of “countable” assets. Among the few assets which are not “countable” is the person’s homestead with up to $500,000 in equity (adjusted for inflation). In addition, term life insurance policies without a cash value are not countable assets.

The use of “Lady Bird Deeds” has become common in Michigan is a way to pass property upon death. The name comes from the mechanism that President Lyndon Johnson used to pass property to his wife, “Lady Bird” Johnson on his death. Some lawyers call these “enhanced life estate” deeds.

On May 31, 2017, Mike Huff’s article “How long does the government have to reply to your request for information?” was posted on Grand Rapids Business Journal Law Blog.

In the June/July 2017 edition of West Michigan Woman, Neil Jansen is quoted in the article “Where There’s a Will. . .”

On April 26, 2017, the Grand Rapids Legal News featured Randy Velzen in its Duly Noted section.

On April 28, 2017, MiBiz interviewed and quoted Jennifer Puplava in its article “Who owns 269? Discover Kalamazoo sues Southwest Michigan First over magazine title."

On March 9, 2017, Michigan Lawyers Weekly ran the story “What’s hiding in the deep?” In the article, Mike Huff discusses the recent case French v Ben’s Supercenter Inc.

Neil Kimball was recently appointed to the Board of the Foundation in Support of the Association for the Blind & Visually Impaired.

On April 18, 2017, Mike Huff’s article “Avoiding settlement agreements through higher-priority security interests” was posted on Grand Rapids Business Journal’s Law Blog.

Randy Velzen has joined the firm as a member.

On Tuesday, April 12, 2017, Mike Huff was interviewed by WZZM 13 regarding United Airlines forcing a passenger off an aircraft.

On Wednesday, April 26, 2017, Jennifer Puplava will speak at the Trivalent West Michigan IT Vendor Roadshow.