Kurt Boegner, Owner

Value Tire, Okemos, MI, and Tasmanian Tire, Holt, MI

Medical marijuana law in Michigan runs into workplace rule

Employers not required to allow marijuana use
BY GINA DAMRON
FREE PRESS STAFF WRITER

If a recently filed medical marijuana lawsuit reaches the Michigan Court of Appeals or state Supreme Court, it could produce a precedent-setting decision that impacts employers and patients, whose jobs may be at risk even when legally using the drug. Joseph Casias — a 30-year-old Battle Creek resident who legally uses marijuana — filed a lawsuit last week against Wal-Mart in Calhoun County Circuit Court after being fired for testing positive for pot during a drug test.

A Wal-Mart spokesman last week said that the corporation has a zero-tolerance policy when it comes to drug use and follows federal law, under which marijuana is illegal.
“We’ve been waiting for this,” Kurt McCammon, a lawyer with Miller Canfield who specialize in employment law, said of the lawsuit.
The case, he said, may help determine whether “an employer in the state of Michigan is required to permit an employee to use medical marijuana outside the workplace and then come into the workplace with some levels of marijuana in their system.”

The lawsuit is the only known of its kind in Michigan, according to several lawyers and a state official, but Casias isn’t the only person to complain.
The Michigan Department of Civil Rights has two active investigations involving people claiming they were not hired for jobs after disclosing they are medical marijuana users, said Harold Core, a spokesman for the department.

The state’s disabilities act says employers can establish policies regarding the use of illegal drugs, which Core said may not apply to the legal use of marijuana.
Core said a court opinion could help clarify the state medical marijuana law.
“It’s new legislation,” he said. “It’s still kind of murky.”

Sections of law hazy
Michigan voters approved the medical marijuana law in 2008, but some parts of the act may be open to interpretation, some say.
The act says a person shall not be subject to “disciplinary action by a business or occupational or professional licensing board of bureau” for using marijuana in accordance with the act. But it also says the law doesn’t require an employer to accommodate the ingestion of the drug in the workplace or an employee working while under the influence.
Add to that the fact that marijuana is illegal federally — though President Barack Obama directed the U.S. Justice Department to stop using federal resources to prosecute medical marijuana cases — and that there is no legal standard for measuring marijuana impairment and the issue can become murky, said Melanie Brim, director of the Bureau of Health Professions within the Michigan Department of Community Health. “At this point it’s wide open for interpretation,” she said. “And when you get wide open for interpretation, somebody at some point … is going to feel like they need a legal opinion.”
And that’s just what could happen.

Before filing his lawsuit, Casias contacted the Michigan Department of Civil Rights and a file on his complaint was opened March 4, said Harold Core, a spokesman for the department. But Casias never returned a signed, notarized copy of his complaint, Core said. Core said the department has been contacted by about 13 people on medical marijuana-related complaints ranging from issues with public accommodation or employers to law enforcement. Only two investigations are currently active, he said. “Our job, basically, is to look into allegations and determine what the law says,” Core said.
Richard Hurford, a Bloomfield Hills-based lawyer with Ogletree Deakins who specializes in labor and employment law, said until the state law says employers must accommodate the use of medical marijuana, many will continue strict drug-use policies because marijuana is illegal under federal law.

He said about a dozen employers he represents had to fire employees because of medical marijuana use, but no lawsuits have been filed against his clients. “All employers have an obligation under federal and state law to provide a safe workplace,” Hurford said. And some say Michigan’s law can be interpreted to allow employers to have zero-tolerance drug use policies.
Greg Rossiter, a spokesman for Wal-Mart, said the corporation has such a policy and also requires drug screens when an employee is injured in the workplace.
“To make sure they weren’t impaired,” he said.

Casias injured himself at work, was taken for treatment and given a drug test. Dan Korobkin, a staff attorney with the ACLU of Michigan — which is representing Casias, along with the national ACLU and another law firm — said Casias never used marijuana at work and never showed up for work impaired.
He said the lawsuit will send a message. Even though Wal-Mart is “a very large corporation,” he said, “they don’t write the laws.”

But even if Casias’ case makes it to the state Supreme Court, there’s no guarantee of an opinion that’s favorable to patients.
In April, the Oregon Supreme Court ruled that workers who use medical marijuana can still be fired for drug use because the state law had to yield to federal laws controlling illegal drugs, according to a news report. And in 2008, it was reported that the California Supreme Court also ruled in favor of employers, saying workers can be fired, even if they are using medical marijuana legally.
But Korobkin said he believes Michigan’s law “clearly protects patients from being disciplined by their employers.”
But some disagree.

Kurt Sherwood, a lawyer with Miller Canfield who specializes in labor and employment law, said he believes the act was designed primarily to protect people from criminal prosecution — not to prohibit employers from enforcing drug policies. But the law, he said, can be interpreted in different ways. “It raises an awful lot of questions,” Sherwood said, “and it’s placing employers in a very untenable position.” Casias said he wants to see his case help protect some of the 20,000-plus other medical marijuana patients across Michigan. “I’m hoping,” he said, “that other people don’t get fired for the same thing.”

Contact GINA DAMRON: 586-826-7269 or gdamron@freepress.com

Michigan’s Gift to Texas? People

MICHAEL D. LAFAIVE
Mackinac Center

Since 2000, Michigan lost 540,750 residents to interstate migration (though the state’s overall population rose slightly due to other factors).

In contrast, Texas added 848,702 residents through interstate migration. The meaning of these numbers cannot be overemphasized: There is perhaps no better single measurement of an area’s quality of life than migration.

The Lone Star State has become one of America’s premier “destination” states, while Michigan has become the country’s classic “departure” state. If Michigan once again raises its taxes, as Gov. Jennifer Granholm proposes, it will only continue to feed Texas’ success.

The Mackinac Center’s own migration study — authored by adjunct scholar Michael Hicks — found that nationwide, people are moving to states with lower taxes, more flexible labor climates and more days of sunshine.A key factor driving these migration patterns is economic liberty, as several studies have found in recent years. The Pacific Research Institute in California created an index that contains 143 different variables designed to measure economic freedom. The institute’s most recent report (2008) ranks Michigan the 43rd economically freest state and Texas the 31st. The study’s authors conducted a statistical analysis of state-to-state migration and showed that this migration is correlated with their index of economic freedom.

The American Legislative Exchange Council in Washington, D.C., has published a “Competitiveness Index” for each state based on 15 policy variables, such as income and corporate taxes, tax progressivity, and right-to-work protections. Based on these metrics, the authors created economic outlook and economic performance rankings. In the 2009 version, Michigan’s outlook ranked 34th, and Texas’ ranked 10th. Texas’ economic performance took the No. 1 position, and Michigan’s came in dead last. This, too, supports the link between economic freedom and migration.

People move to Texas from all over. When we shift the focus to specific pairs of states, Florida remains the top migration choice for outbound Michigan residents. According to Internal Revenue Service data, a net total of approximately 68,000 Michiganders moved to the Sunshine State between 2000 and the end of 2008. Texas ranks second for outbound Wolverines. From 2007 to 2008, 12,748 of our fellow residents moved there, while 5,272 Texans came to Michigan, for a net outflow to the Lone Star State of 7,746.

The IRS data can actually be broken down by county. The gross outflow from Michigan’s three biggest counties to Texas appears to have increased dramatically. For example, the number of people moving from Macomb County to Texas increased from approximately 200 between 2003 and 2004 to 748 between 2007 and 2008, a 274 percent difference. Their most frequent destination was the Dallas/Fort Worth area. For people from Oakland and Wayne Counties, the Texas county of Harris, which includes Houston, was the most popular.

Does other research back up the theory that economic opportunity is why so many people vote with their feet? Over the past decade, migration economists have narrowed their research to a number of key determinants, among them taxes, welfare, weather, unemployment rates and labor markets, including wages.

Several scholarly studies have shown empirical links between these variables and American migration patterns. The Mackinac Center’s own migration study — authored by adjunct scholar Michael Hicks — found that nationwide, people are moving to states with lower taxes, more flexible labor climates and more days of sunshine.

Specifically, Hicks discovered that for every 10 percent increase in personal taxes, Michigan loses 4,900 people every year thereafter. So, the 11.5 percent personal income tax increase the Legislature imposed in 2007 has already driven more than 10,000 people out of Michigan.

By contrast, Texas has no income tax. This would be a distinct advantage even if its overall tax burden was higher than Michigan’s, but in fact it is lower. The Tax Foundation, based in Washington, D.C., reports that in 2008, Texas’ state and local tax burden ranked 43rd in the nation — one of the very lowest — while Michigan’s was 27th.

Of course, taxes are just one variable. Michigan’s hostile labor climate and regulatory regime are also adding to a lack of opportunity that’s chasing people away. Still, this is the backdrop against which Michigan now faces a new round of demands for tax increases, including Gov. Granholm’s call for a $900 million hike over three years. Such an increase could be good news for Texas, but bad news for Michigan.

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© Copyright 2010 The Detroit News. All rights reserved.

The Union Disadvantage: costs associated with unions.

Tangible Costs

Research indicates that the cost of running a unionized company is 30% to 40% greater than for a non-unionized one, and may not include subsequently negotiated changes in unionized employee wages or benefits.

 The administrative budgets of unionized companies are higher due to the need for larger human resources staffs to deal with grievances, job descriptions, rate negotiations, time and motion measurements.

• Plant grievance administrators, Supervisors of Industrial Relations, Corporate Directors of Labor Relations, and legal counsel who will offer labor law advice for $ 250 per hour or more.

• Unfair labor practice charges brought by unions harm the employer’s reputation and diminish the corporation’s good will. Once a charge is filed, an NLRB filed agent will visit the employer and conduct an investigation. At this stage, the entire workforce will know that something happened. Next, if the charge is not settled, the NLRB will schedule the matter for hearing. Preparing for and conducting a hearing will cost the employer more than $ 10,000 in legal fees, plus the non-productive time associated with witnesses, management preparation/testimony, and more.    

• Over-compliance with government regulations.  “Union Bird Dogs” monitoring workplace statute compliance are prevalent in union facilities. Unions sometimes call OSHA safety inspectors to identify safety issues for their own uses at the bargaining table.

• Increased involvement with regulatory agencies, especially Wage and Hour claims, OSHA/MIOSHA, the NLRB, EPA, and the EEOC.

• Indirect costs of outside services, such as the frequent need for an employment/labor attorney to deal with contract negotiations, handle grievances, arbitration cases, and review compliance with a collective bargaining agreement. Unions demand that negotiations take place away from the employer’s offices, which adds travel, meeting rooms, food, and related hotel costs. While management is away, who is running the business?

• Added accounting staff for calculating, deducting and documenting employee union dues. Unions, the Teamsters, for one example, demand that employers participate in union health and welfare and pension funds. These benefits are super costly and come with regular audits that penalize employers for not covering part time employees and sometimes those who are already covered under a spouse’s insurance.   

• Additional wages and benefits for employees who are called in to cover for other employees in chief steward or representative positions when they are attending to union business during working hours. It is unlawful to counsel or discipline one of your union employees without having union representation present. 

• Contracting with consultants, storage facilities, and offsite manufacturing teams to develop an action plan for a possible work stoppage or strike. Prior to labor negotiations, it is common for employers to create a “strike bank” of parts (often produced with overtime costs) in anticipation of a possible strike.

• Wages for short-term replacements if a strike occurs, which can be significantly higher than striking employees wages, especially if replacements are required for highly trained positions.

Employees also incur costs when a union wins a NLRB election.

• Union initiation fees vary between $ 500 and $ 1,000.

• Average annual union dues are $400, or about two hours of pay per month.

• Unions negotiate agreements that limit employers’ use of temporary, part time, or seasonal workers, because unions want more full-time dues paying members. Unions generally don’t care about opportunities to save operating costs. As a practical matter, employers are forced to outsource temporary work- rather than pay the added labor costs associated with hiring full time employees.

• The employee puts it all on the line during a labor dispute. It is the union employee who is not receiving a full paycheck or benefits during a strike. Further, if a union member crosses a picket line during a strike, that employee can be fined under union by-laws for those earnings.

Intangible Costs

In addition to obvious increased costs, having a union affects morale, creativity and resiliency. Ultimately, an organization’s profit margin can decline. Productivity appears to be lower in unionized environments, possibly due to:

• Employee anger or frustration when the collective bargaining process for an initial contract lasts more than a year or does not result in the changes promised by a union during the organizing campaign. About 75% of initial contracts are still negotiated a year after the NLRB representation election according to the Federal Mediation and Conciliation Service, and 50% of initial contract negotiations never achieve an executed agreement.

• Union strategies and rules impairing the employee-employer relationship by playing on employee emotion and interfering with direct employee-supervisor communication, which cast the employer in the role of “enemy” and result in employee mistrust of management.

• Poor communication and diminished employee participation in workplace decision making via power sharing programs when these programs had been in place prior to an election. In fact, unions will file unfair labor practice charges against employers who choose to speak directly to employees and not deal direct with union officials.

• Employees coping with divisiveness, name-calling and, terrorizing behavior of union co-workers.

• Less flexibility, both internally and externally, to move quickly or creatively in response to change due to union rules and related contract language that results in rigid operating guidelines. Quality and productivity enhancements demanded by customers are good examples.

• Increased difficulty recruiting and retaining the most creative and effective employees. Union-imposed contract provisions often limit the employer’s desire to reward an employee based on performance or productivity. Union grievance procedures tend to protect low-performing, negligent- and negative employees.

• Decreased client or vendor satisfaction if unionization affects service or product cost or quality.

• Interruption in service provision or production if a work stoppage or strike occurs. 

• Not all employment issues arise under the collective bargaining agreement, and then resolved in arbitration. Union employees are often provided with free legal services by union-affiliated law firms to pursue worker’s compensation, FMLA, ADA, and many other claims. Union attorneys pursue the thinnest, and sometimes frivolous lawsuits which would not otherwise be pursued if properly assessed in a “cost effective” manner.  An employee actually paying a private lawyer out of his own pocket would think twice about this sort of legal litigation. Therefore, the legal onslaught of multiple cases is a significant tactic used to intimidate employers.     

Conclusion

Union avoidance initiatives and counter union campaigns benefit both employees and management. These are cost-effective for all organizations that wish to retain their competitive edge.

The Merit Shop Advantage

Positive employee relations can best be evidenced by being merit shop. You should manage your business to make unions unnecessary. Otherwise, employers often get the unions they deserve; employers managing a positive workplace don’t become unionized.     

Merit shops save employers more than 30% in operating costs. Here are just a few extra costs of having a union: collecting union dues, paying labor attorneys during labor negotiations, grievances, whistleblowers, professional contract administration, higher benefit costs, and having to fire employees who don’t want to join the union. And, although there many other costs associated with having a union, many are difficult to quantify, among them:   

• Loss of flexibility to quickly respond within a competitive and rapidly changing business environment.
• Inability to attract and retain the best workers. Many refuse to work in a union environment.
• Adversarial relationships between supervision and employees.
• Slanted employment communication controlled by union bosses.
• After a union is certified by the NLRB, it becomes an unfair labor practice for management to speak directly to employees about wages, benefits, and terms and conditions of employment. .
• Interruption of service or production due to strikes.
• Protection of the poorest performers under the grievance system.
• After a union is certified, your best workers are often forced to quit.
• Unions are typically resistant to operational changes, and file grievances.

A merit shop is attained by effective leadership through programs and actions that recognize the dignity of the individual.

Leadership creates this workplace climate by:

• Treating employees with dignity, respect, and consistency.
• Guaranteeing job security through just cause employment and employee peer review of all termination cases.  
• Encouraging employee participation in decisions that impact their work lives.
• Providing caring, thoughtful management that appropriately advocates for the individual and recognizes employees’ needs for an appropriate work/family balance.
• Communicating openly and honestly with employees.
• Resolving workplace concerns and issues in a timely and equitable manner.
• Paying wages that are competitive within the local labor market, and then awarding pay raises based on merit.
• Evaluating, recognizing and rewarding individual performance.

How to Maintain a Successful Merit Shop

Begin working on positive employee relations programs- before the union files for an election with the NLRB.

Do you have an updated employee handbook? If your current employee handbook is in direct violation of a State or Federal law, a union organizer will use violations to show why a union is needed at your business. Wage and Hour, Civil Rights, Safety, and concerted protected activity are frequently cited violations. 

What management should do when confronted with a union organizational campaign:

Doing nothing is better than committing an unfair labor practice, but that is not your best strategy. You need a labor/employment attorney to help formulate an effective union-free strategy. Management should send a carefully drafted letter to every employee expressing its position regarding the union drive.    

How does management first become aware of a union organizational drive? Management must be pro-active and become effective at listening to every employee.  

Initial steps to be taken by management in the light of a union organizational effort. Meetings, letters, and training sessions.

The role and function of first-line management in response to a union organizational effort. Under the Labor Law, a first line supervisor can commit an unfair labor practice that will force management  to recognize the union without an election.   

Management do’s and don’ts:

Employers must know the legal requirements and prohibitions of the Labor Law. What to do when the union organizer knocks on your door. Union organizers are trained to have you respond in a way that gets union recognition without an NLRB election.  Do you have a merit shop action plan? Send a letter to your employees. Establish a hotline to management.

Specific Tips to Maintain a Merit Shop

Progressive Leadership: Supervisors must be good communicators who inspire your employees to do their best.

Communications: Listen to your employees’ suggestions, complaints, and requests for help on personal problems. Provide updates on the economics of your business.

Job Security: Do not maintain an employment at will policy. Civil rights, veterans’ rights, disability and other state and federal laws can be used by plaintiff attorneys to sue employers anyhow.  This policy offers you minimal protection from lawsuits and is a red flag to the union organizer- who will offer your employees job security through the arbitration clause of a collective bargaining agreement.

Just Cause Employment: Make a list of serious problems that are reasons for terminating employment. Have another list of relatively minor problems that can and should be corrected by disciplinary action not as serious a termination.

Employee Health and Safety: Focus on and improve the company safety record, housekeeping, and  security.

Peer Review: Employers with internal dispute resolution committees avoid wrongful discharge litigation. This is a key element for establishing job security, which is more competitive than the union’s contractual arbitration clause.   

Employee Turnover: Turnover statistics indicate how employers are doing. Keep monthly statistics. Ask employees why they are leaving at exit interviews. Find out what your competition is paying in wages.

Compensation: Conduct wage surveys. Be competitive.  

Education and Training: Train your supervisors in positive leadership techniques.

New Employee Selection and Hiring: You can offer tests to identify those Best qualified for your jobs. Implement an employee orientation  program. 

Recognition: Offer bonus/incentive plans, such as- perfect  attendance bonuses, quality incentives, safety awards, and group productivity bonuses. 

Understand the Labor Law: Don’t commit an unfair labor practice. Establish your merit shop action plan with qualified legal counsel.

Positive employee relations can best be evidenced by being union free. You should manage your business to make unions unnecessary. Otherwise, employers often get the unions they deserve; employers managing a positive workplace don’t become unionized.     

Union free workforces save their employers more than 30% in operating costs. Here are just a few extra costs of having a union: collecting union dues, paying labor attorneys during labor negotiations, grievances, whistleblowers, professional contract administration, higher benefit costs, and having to fire employees who don’t want to join the union. And, although there many other costs associated with having a union, many are difficult to quantify, among them:   

• Loss of flexibility to quickly respond within a competitive and rapidly changing business environment.
• Inability to attract and retain the best workers. Many refuse to work in a union environment.
• Adversarial relationships between supervision and employees.
• Slanted employment communication controlled by union bosses.
• After a union is certified by the NLRB, it becomes an unfair labor practice for management to speak directly to employees about wages, benefits, and terms and conditions of employment. .
• Interruption of service or production due to strikes.
• Protection of the poorest performers under the grievance system.
• After a union is certified, your best workers are often forced to quit.
• Unions are typically resistant to operational changes, and file grievances.

A union free workforce is attained by effective leadership through programs and actions that recognize the dignity of the individual.

Leadership creates this workplace climate by:

• Treating employees with dignity, respect, and consistency.
• Guaranteeing job security through just cause employment and employee peer review of all termination cases.  
• Encouraging employee participation in decisions that impact their work lives.
• Providing caring, thoughtful management that appropriately advocates for the individual and recognizes employees’ needs for an appropriate work/family balance.
• Communicating openly and honestly with employees.
• Resolving workplace concerns and issues in a timely and equitable manner.
• Paying wages that are competitive within the local labor market, and then awarding pay raises based on merit.
• Evaluating, recognizing and rewarding individual performance.

How to Maintain a Successful Union Free Workforce

Begin working on positive employee relations programs- before the union files for an election with the NLRB.

Do you have an updated employee handbook? If your current employee handbook is in direct violation of a State or Federal law, a union organizer will use violations to show why a union is needed at your business. Wage and Hour, Civil Rights, Safety, and concerted protected activity are frequently cited violations. 

What management should do when confronted with a union organizational campaign:

Doing nothing is better than committing an unfair labor practice, but that is not your best strategy. You need a labor/employment attorney to help formulate an effective union-free strategy. Management should send a carefully drafted letter to every employee expressing its position regarding the union drive.    

How does management first become aware of a union organizational drive? Management must be pro-active and become effective at listening to every employee.  

Initial steps to be taken by management in the light of a union organizational effort. Meetings, letters, and training sessions.

The role and function of first-line management in response to a union organizational effort. Under the Labor Law, a first line supervisor can commit an unfair labor practice that will force management  to recognize the union without an election.   

Management do’s and don’ts:

Employers must know the legal requirements and prohibitions of the Labor Law. What to do when the union organizer knocks on your door. Union organizers are trained to have you respond in a way that gets union recognition without an NLRB election.  Do you have a union free action plan? Send a letter to your employees. Establish a hotline to management.

Specific Tips to Maintain Union Free Employment

Progressive Leadership: Supervisors must be good communicators who inspire your employees to do their best.

Communications: Listen to your employees’ suggestions, complaints, and requests for help on personal problems. Provide updates on the economics of your business.

Job Security: Do not maintain an employment at will policy. Civil rights, veterans’ rights, disability and other state and federal laws can be used by plaintiff attorneys to sue employers anyhow.  This policy offers you minimal protection from lawsuits and is a red flag to the union organizer- who will offer your employees job security through the arbitration clause of a collective bargaining agreement.

Just Cause Employment: Make a list of serious problems that are reasons for terminating employment. Have another list of relatively minor problems that can and should be corrected by disciplinary action not as serious a termination.

Employee Health and Safety: Focus on and improve the company safety record, housekeeping, and  security.

Peer Review: Employers with internal dispute resolution committees avoid wrongful discharge litigation. This is a key element for establishing job security, which is more competitive than the union’s contractual arbitration clause.   

Employee Turnover: Turnover statistics indicate how employers are doing. Keep monthly statistics. Ask employees why they are leaving at exit interviews. Find out what your competition is paying in wages.

Compensation: Conduct wage surveys. Be competitive.  

Education and Training: Train your supervisors in positive leadership techniques.

New Employee Selection and Hiring: You can offer tests to identify those Best qualified for your jobs. Implement an employee orientation  program. 

Recognition: Offer bonus/incentive plans, such as- perfect  attendance bonuses, quality incentives, safety awards, and group productivity bonuses. 

Understand the Labor Law: Don’t commit an unfair labor practice. Establish your union free action plan with qualified legal counsel.

 March 8, 2010

Karla Osolin was disappointed with her first paycheck from Turocy & Watson LLP, a boutique intellectual property firm in Cleveland, Ohio.

She had previously worked as a legal secretary for the international firm Jones Day, and the pay didn’t seem right.

Then she realized she wasn’t being paid overtime, and filed suit against her new firm.

A federal court in the Northern District of Ohio has now conditionally certified a class of about 40 legal secretaries — both current and former employees — under both the Fair Labor Standards Act (FLSA) as well as Ohio’s Fair Wage Standards Act.

The plaintiffs are claiming that the firm misclassified them and failed to pay required overtime.

Regardless of its outcome, the suit offers a lesson to employers generally and law firm managers particularly, according to a trio of Wisconsin wage-and-hour attorneys.

Many employers, including law firms, suffer from the misconception that simply paying an employee a salary instead of an hourly wage automatically exempts them from receiving overtime, says Madison attorney Tamara B. Packard, a partner at Cullen, Weston, Pines & Bach LLP.

Packard noted that the recession has increased the wage-and-hours portion of her employment law practice.

“I think employers are feeling the pinch, and they’re pinching their employees right back. They’re looking for ways to cut costs and expenses, and looking for ways for employees to do more for less,” she said. “Those efforts, while understandable, are also getting employers into trouble.”

The most likely scenario in the law firm setting — a culture that traditionally calls for long hours and hard work — is a legal secretary who decides to help out by working through lunch, or by staying a little late, said Roger L. Pettit, president of Petrie & Stocking SC in Milwaukee.

Then the employment relationship sours, and suddenly, the secretary wants to be paid for all the extra hours.

It’s something every employer should be concerned about, cautioned Michael F. Brown, of Peterson, Berk & Cross SC in Appleton, because the potential liability for violations is substantial. Liquidated or double damages for the overtime may be awarded under the FLSA, as well as plaintiff’s reasonable attorney fees and costs.

Moreover, it is the employer’s burden to overcome a presumption that liquidated damages are appropriate — although in some cases, the employer can avoid liquidated damages if it meets its burden of proving both that it was acting in good faith and it reasonably believed its conduct was consistent with the law.

A primer for law firms

Labels are not controlling in wage-and-hour laws. A worker may be labeled a “salaried employee” by an employer, but may still be deemed an hourly worker under the Wisconsin or federal definitions, explained Brown.

The wage law definition of “salaried basis” at 29 CFR § 541.602 discusses what types of deductions and other employer conduct could make a “salaried” worker an hourly — and overtime-eligible — worker. Among them is when an employer improperly docks a “salaried” worker’s wages.

Under 29 CFR 541 and DWD 274.04, an employee is entitled to overtime unless he or she falls into one of three exemptions: professional, executive or administrative. The burden of proof is on the employer to show that an employee is covered by an exemption.

To be eligible for the professional exemption, an employee must have an advanced degree in his or her field,

like a lawyer or a doctor.

“There are dangers for law firms especially because we think of ourselves and our secretaries as professionals, and while they are in many sense of the word, from the standpoint of the FLSA, they’re not. They need to be considered hourly employees,” said Packard.

She noted that a Department of Labor advisory opinion from 2005, FLSA 2005-9, specifically addressed the issue of whether a paralegal with a four-year degree, a paralegal certificate, CLE and 22 years’ experience could fall under the professional exemption, and concluded he or she could not.

Rather, the exemption is only available for paralegals who possess advanced specialized degrees in other professional fields and apply advanced knowledge in that field in the performance of their duties. For example, an engineer, hired as a paralegal to provide expert advice on product liability or patent cases, could qualify.

The executive exemption requires the employee to manage two or more employees, so that his or her primary duty is management. The employee must also have the authority to hire and fire, or to make recommendations that are given weight in those decisions.

The third exemption is administrative. Employees fall into this category when they provide work directly related to management or general business operations and exercise discretion and independent judgment in matters of significance.

What to do

Wisconsin employers, including law firms, need to look not at job titles, but at job duties actually performed, Brown emphasized.

For instance, often employers assume an employee is an exempt “executive” based on the employee’s managerial title, but the employer does not examine whether the employee’s job duties actually involve the specific functions laid out in DWD 274.04(1)(a) or 29 CFR Part 541. If the job duties don’t meet the specific exemption criteria, it doesn’t matter that the worker is titled a “manager” or “executive.” The worker is entitled to overtime pay.

The easiest course of action for law firms is to classify all staff except partners and associates as non-exempt and pay them hourly, said Packard.

Pettit said that new hires should be instructed up front to accurately report their hours. Then they can’t complain they weren’t paid overtime if they didn’t work in excess of 40 hours per work week. This is particularly important if you have employees with flex-schedules or who work remotely.

If you’re uncertain about the propriety of a classification, and it’s foreseeable that your employees may work over 40 hours per week on a regular basis, get some help.

Brown cautioned, “If a well-informed attorney does not review your wage practices on day one, then at year two, a well-informed plaintiff’s attorney will likely do so upon receiving worker complaints.

“An employer with wage-compliance efforts upfront is much more likely to prevent violations and lawsuits,” he added. “And if a lawsuit did still occur, the FLSA allows an employer to use proof of good-faith compliance efforts as a way to reduce liability and damages.”

Correy E. Stephenson of Lawyers USA contributed to portions of this article.

Copyright  2010 The Wisconsin Law Journal All Rights Reserved

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Attorney & Business Counselor

Telephone (517) 655-4100 Cell (517) 525-1413

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Web Site: http://tomfrederickslaw.com/

Michigan Constitution Seminar Outline

History

Territorial Law: Government of the Northwest Territory Ordinance

• Prior to statehood, Michigan was part of the Northwest Territory. During this period, Detroit was the territorial capital, and, instead of a state legislature, Michigan was governed by a unicameral body called the Territorial Council.
• The Ordinance of 1787 was drafted as a compact between the original states, and the people and states of the territory. It promised regions in the Northwest Territory future statehood.
• The Ordinance also provided for

religious freedom,

due process, and the

writ of habeas corpus. The Ordinance of 1787 also

prohibited slavery and

cruel and unusual punishment

Michigan has adopted four Constitutions.

Two proposed constitutions were rejected by Michigan’s voters in both 1868 and 1874.  

• The Constitution of 1835 was adopted two years before Michigan became a state. The Constitutional Convention of 1835 met at the Territorial Capitol in Detroit on May 11, 1835, and adjourned on June 24,1835. The Constitution of 1835 was adopted at an election held on October 5 and 6, 1835, by a vote of 6,752 to 1,374.

ü  Strong Gov who appointed everybody.

ü  Legislature could borrow money for roads, canals, and locks.

ü  Fiscal crisis. 

• On June 3, 1850, a Constitutional Convention met at Lansing and completed its revision on August 15. The Constitution of 1850 was presented at the election of November 5, 1850, and adopted by a vote of 36,169 to 9,433.

ü  Long Ballot electing everybody.

ü  every 16 years the constitutional question on ballot.

• Over fifty years passed before a new Constitution was adopted. On October 22, 1907, a Constitutional Convention convened at Lansing and completed its revision on March 3, 1908. The Constitution of 1908 was adopted on November 3, 1908, by a vote of 244,705 to 130,783.
• Four attempts were made to call a Constitutional Convention for the purpose of revising the Constitution of 1908 before the question was approved by the voters on April 3, 1961. A primary election for the purpose of electing delegates was held on July 25, 1961, and on September 12, 1961, one hundred forty-four delegates were elected. The delegates met at Convention Hall in the Civic Center, Lansing, on October 3, 1961, and adopted the proposed Constitution on August 1, 1962. The Constitution was submitted at the election of April 1, 1963, and adopted. A recount established the vote as 810,860 to 803,436. The effective date of the Constitution of 1963 is January 1, 1964.

ü  Municipal home rule.

ü  Line item veto.

ü  initiative and referendum

ü  Women/child labor.

The Constitutional Convention of 1907-1908, and how the “Rough Rider” himself- Theodore Roosevelt influences Michigan Civil Service to this very day.

ü  Prof. James Fairley of the U of M worked for Gov Roosevelt during the 1890’s as NY went from Tamany Hall corruption to a merit based Civil Service system.

ü  Prof Fairley was a 1907 co/con delegate.

ü  Argued for an independent civil service system. Lost.

Political Patronage in Michigan.

• “Flower funds” and Michigan Civil Service.
• Imagine a Michigan State Police Trooper appearing in uniform at your front door campaigning for the Governor.
• Civil service depended upon the political party of the newly elected Governor, who fired everyone from the Chief of Staff to the janitors on the day he took office.
• So…the Legislature created the first Civil Service Commission in 1936 which did by statute what Prof Fairley wanted 30 year prior.
• 2 years later, the Gov office and Leg changed party hands, and a “Ripper Act” did away with the CS Commission.
• This created a stir which caused an initiative amending the constitution.  

Amending the Michigan Constitution in 1941.

• Why these changes made the Michigan Constitution unique among all 50 States. Creation of a 4th branch of Michigan government. The Legislature can pass no law about wages, benefits, and terms and conditions of employment for state workers. The governor cannot fire at will. Only the Michigan Supreme Court can define the role of the MCSC. So far they have defined Civil Service Commission has absolute, plenary authority over all state classified employees.

Michigan Civil Service

• 53,000 total.
• 35,000 are union: UAW, MSEA, SEIU, MCO, MSPTA, AFSCME.
• Total Budget- 1 % of the State payroll- 

§ 5 Classified state civil service; scope; exempted positions; appointment and terms

of members of state civil service commission; state personnel director; duties

of commission; collective bargaining for state police troopers and sergeants;

appointments, promotions, demotions, or removals; increases or reductions in

compensation; creating or abolishing positions; recommending compensation

for unclassified service; appropriation; reports of expenditures; annual audit;

payment for personal services; violation; injunctive or mandamus proceedings.

Sec. 5. The classified state civil service shall consist of all positions in the state service

except those filled by popular election, heads of principal departments, members of boards and

commissions, the principal executive officer of boards and commissions heading principal

departments, employees of courts of record, employees of the legislature, employees of the state

institutions of higher education, all persons in the armed forces of the state, eight exempt

positions in the office of the governor, and within each principal department, when requested

by the department head, two other exempt positions, one of which shall be policy-making. The

civil service commission may exempt three additional positions of a policy-making nature

within each principal department.

The civil service commission shall be non-salaried and shall consist of four persons, not more

than two of whom shall be members of the same political party, appointed by the governor for

terms of eight years, no two of which shall expire in the same year.

The administration of the commission’s powers shall be vested in a state personnel director

who shall be a member of the classified service and who shall be responsible to and selected by

the commission after open competitive examination.

The commission shall classify all positions in the classified service according to their respective

duties and responsibilities, fix rates of compensation for all classes of positions, approve or

disapprove disbursements for all personal services, determine by competitive examination and

performance exclusively on the basis of merit, efficiency and fitness the qualifications of all

candidates for positions in the classified service, make rules and regulations covering all

personnel transactions, and regulate all conditions of employment in the classified service.

1978 Amendment: State Police Troopers and Sergeants shall, through their elected representative designated

by 50% of such troopers and sergeants, have the right to bargain collectively with their

employer concerning conditions of their employment, compensation, hours, working conditions,

retirement, pensions, and other aspects of employment except promotions which will be

determined by competitive examination and performance on the basis of merit, efficiency and

fitness; and they shall have the right 30 days after commencement of such bargaining to

submit any unresolved disputes to binding arbitration for the resolution thereof the same as

now provided by law for Public Police and Fire Departments.

No person shall be appointed to or promoted in the classified service who has not been

certified by the commission as qualified for such appointment or promotion. No appointments,

promotions, demotions or removals in the classified service shall be made for religious, racial

or partisan considerations.

Increases in rates of compensation authorized by the commission may be effective only at

the start of a fiscal year and shall require prior notice to the governor, who shall transmit

such increases to the legislature as part of his budget. The legislature may, by a majority vote

of the members elected to and serving in each house, waive the notice and permit increases in

rates of compensation to be effective at a time other than the start of a fiscal year. Within

60 calendar days following such transmission, the legislature may, by a two-thirds vote of

the members elected to and serving in each house, reject or reduce increases in rates of

compensation authorized by the commission. Any reduction ordered by the legislature shall

apply uniformly to all classes of employees affected by the increases and shall not adjust pay

differentials already established by the civil service commission. The legislature may not

reduce rates of compensation below those in effect at the time of the transmission of increases

authorized by the commission.

The appointing authorities may create or abolish positions for reasons of administrative

efficiency without the approval of the commission. Positions shall not be created nor abolished

except for reasons of administrative efficiency. Any employee considering himself aggrieved by

the abolition or creation of a position shall have a right of appeal to the commission through

established grievance procedures.

The civil service commission shall recommend to the governor and to the legislature rates

of compensation for all appointed positions within the executive department not a part of the

classified service.

To enable the commission to exercise its powers, the legislature shall appropriate to the

commission for the ensuing fiscal year a sum not less than one percent of the aggregate payroll

of the classified service for the preceding fiscal year, as certified by the commission. Within

six months after the conclusion of each fiscal year the commission shall return to the state

treasury all moneys unexpended for that fiscal year.

The commission shall furnish reports of expenditures, at least annually, to the governor

and the legislature and shall be subject to annual audit as provided by law.

No payment for personal services shall be made or authorized until the provisions of this

constitution pertaining to civil service have been complied with in every particular. Violation

of any of the provisions hereof may be restrained or observance compelled by injunctive or

mandamus proceedings brought by any citizen of the state.

History: Const. 1963, Art. XI, §5, Eff. Jan. 1, 1964;—Am. Init., approved Nov. 7, 1978, Eff. Dec. 23, 1978.

Former Constitution: See Const. 1908, Art. VI, §22.

The economic and political factors which gave rise to the Michigan Constitutional Convention of 1962.

The automation of the auto industry gave rise to high unemployment by 1960, and the State was in a deep recession by 1961.

Gov. Swainson tainted by corruption charges and turmoil.

George Romney resigned as President of Rambler to make his political charge.

Civil Rights.

John Hannah, MSU.

The Michigan Constitution of 1963.

Adopted by less than 7,500 votes about 1%.

Civil Rights was a forefront issue of the times, and made for a rare stand-alone agency of government. 

Civil rights commission; members, term, duties, appropriation.

Sec. 29. There is hereby established a civil rights commission which shall consist of eight persons, not

more than four of whom shall be members of the same political party, who shall be appointed by the

governor, by and with the advice and consent of the senate, for four-year terms not more than two of

which shall expire in the same year. It shall be the duty of the commission in a manner which may be

prescribed by law to investigate alleged discrimination against any person because of religion, race, color

or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to

secure the equal protection of such civil rights without such discrimination.

2004- Voters defined marriage.

§ 25 Marriage.

Sec. 25. 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.

History: Add. Init., approved Nov. 2, 2004, Eff. Dec. 18, 2004

2006- voters limited affirmative action.

.

§ 26 Affirmative action programs.

Sec. 26. (1) The University of Michigan, Michigan State University, Wayne State University,

and any other public college or university, community college, or school district shall not

discriminate against, or grant preferential treatment to, any individual or group on the basis

of race, sex, color, ethnicity, or national origin in the operation of public employment, public

education, or public contracting.

(2) The state shall not discriminate against, or grant preferential treatment to, any individual

or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public

employment, public education, or public contracting.

(3) For the purposes of this section “state” includes, but is not necessarily limited to, the

state itself, any city, county, any public college, university, or community college, school district,

or other political subdivision or governmental instrumentality of or within the State of Michigan

not included in subsection 1.

(4) This section does not prohibit action that must be taken to establish or maintain eligibility

for any federal program, if ineligibility would result in a loss of federal funds to the state.

(5) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based

on sex that are reasonably necessary to the normal operation of public employment, public

education, or public contracting.

(6) The remedies available for violations of this section shall be the same, regardless of the

injured party’s race, sex, color, ethnicity, or national origin, as are otherwise available for

violations of Michigan anti-discrimination law.

(7) This section shall be self-executing. If any part or parts of this section are found to be in

conflict with the United States Constitution or federal law, the section shall be implemented to

the maximum extent that the United States Constitution and federal law permit. Any provision

held invalid shall be severable from the remaining portions of this section.

(8) This section applies only to action taken after the effective date of this section.

(9) This section does not invalidate any court order or consent decree that is in force as of

the effective date of this section.

History: Add. Init., approved Nov. 7, 2006, Eff. Dec. 23, 2006.

2006- voters approved stem cell research.

§ 27 Human embryo and embryonic stem cell research.

§ 26 Bills; printing, possession, reading, vote on passage.

Sec. 26. No bill shall be passed or become a law at any regular session of the legislature until

it has been printed or reproduced and in the possession of each house for at least five days.

Every bill shall be read three times in each house before the final passage thereof. No bill shall

become a law without the concurrence of a majority of the members elected to and serving in

each house. On the final passage of bills, the votes and names of the members voting thereon

shall be entered in the journal.

History: Const. 1963, Art. IV, §26, Eff. Jan. 1, 1964.

Compiler’s note: In Advisory Opinion on Constitutionality of 1978 PA 426, 403 Mich. 631, 272 N.W.2d 495 (1978), the Michigan

supreme court held that the lieutenant governor may cast a tie-breaking vote during the final consideration of a bill when the senate is

equally divided, and 1978 PA 426 was constitutionally enacted.

Former Constitution: See Const. 1908, Art. V, §§22, 23.

§ 27 Laws, effective date.

Sec. 27. No act shall take effect until the expiration of 90 days from the end of the session

at which it was passed, but the legislature may give immediate effect to acts by a two-thirds

vote of the members elected to and serving in each house.

History: Const. 1963, Art. IV, §27, Eff. Jan. 1, 1964.

Constitutionality: A law proposed by initiative petition which is enacted by the Legislature without change or amendment within

forty days of its reception takes effect ninety days after the end of the session in which it was enacted unless two-thirds of the members of each

house of the Legislature vote to give it immediate effect. Frey v. Department of Management and Budget, 429 Mich. 315, 414 N.W.2d 873 (1987).

Former Constitution: See Const. 1908, Art. V, §21.

§ 33 Bills passed; approval by governor or veto, reconsideration by legislature.

Sec. 33. Every bill passed by the legislature shall be presented to the governor before it

becomes law, and the governor shall have 14 days measured in hours and minutes from the

time of presentation in which to consider it. If he approves, he shall within that time sign and

file it with the secretary of state and it shall become law. If he does not approve, and the

legislature has within that time finally adjourned the session at which the bill was passed, it

shall not become law. If he disapproves, and the legislature continues the session at which the

bill was passed, he shall return it within such 14-day period with his objections, to the house in

which it originated. That house shall enter such objections in full in its journal and reconsider

the bill. If two-thirds of the members elected to and serving in that house pass the bill

notwithstanding the objections of the governor, it shall be sent with the objections to the other

house for reconsideration. The bill shall become law if passed by two-thirds of the members

elected to and serving in that house. The vote of each house shall be entered in the journal

with the votes and names of the members voting thereon. If any bill is not returned by the

governor within such 14-day period, the legislature continuing in session, it shall become law

as if he had signed it.

History: Const. 1963, Art. IV, §33, Eff. Jan. 1, 1964.

Former Constitution: See Const. 1908, Art. V, §36.

Alcohol in 1978:

§ 40 Alcoholic beverages; age requirement; liquor control commission; excise tax;

local option.

Sec. 40. A person shall not sell or give any alcoholic beverage to any person who has not

reached the age of 21 years. A person who has not reached the age of 21 years shall not possess

any alcoholic beverage for the purpose of personal consumption. An alcoholic beverage is any

beverage containing one-half of one percent or more alcohol by volume.

Except as prohibited by this section, (t)he legislature may by law establish a liquor control

commission which, subject to statutory limitations, shall exercise complete control of the

alcoholic beverage traffic within this state, including the retail sales thereof. The legislature

may provide for an excise tax on such sales. Neither the legislature nor the commission may

authorize the manufacture or sale of alcoholic beverages in any county in which a majority of

the electors voting thereon shall prohibit the same.

History: Const. 1963, Art. IV, §40, Eff. Jan. 1, 1964;—Am. Init., approved Nov. 7, 1978, Eff. Dec. 23, 1978.

Former Constitution: See Const. 1908, Art. XVI, §11.

Lottery. Note Detroit and the power of Coleman Young at that time.

§ 41 Lotteries.

Sec. 41. The legislature may authorize lotteries and permit the sale of lottery tickets in the

manner provided by law. No law enacted after January 1, 2004, that authorizes any form of

gambling shall be effective, nor after January 1, 2004, shall any new state lottery games utilizing

table games or player operated mechanical or electronic devices be established, without the

approval of a majority of electors voting in a statewide general election and a majority of

electors voting in the township or city where gambling will take place. This section shall not

apply to gambling in up to three casinos in the City of Detroit or to Indian tribal gaming.

History: Const. 1963, Art. IV, §41, Eff. Jan. 1, 1964;—Am. H.J.R. V, approved May 16, 1972, Eff. July 1, 1972;—Am. Init., approved

Nov. 2, 2004, Eff. Dec. 18, 2004.

Former Constitution: See Const. 1908, Art. V, §33.

1963 Death Penalty and Civil Rights.

§ 46 Death penalty.

Sec. 46. No law shall be enacted providing for the penalty of death.

History: Const. 1963, Art. IV, §46, Eff. Jan. 1, 1964.

Not applicable to State employees:

§ 49 Hours and conditions of employment.

Sec. 49. The legislature may enact laws relative to the hours and conditions of employment.

History: Const. 1963, Art. IV, §49, Eff. Jan. 1, 1964.

Former Constitution: See Const. 1908, Art. V, §29.

Balanced Budget-

§ 18 Budget; general and deficiency appropriation bills.

Sec. 18. The governor shall submit to the legislature at a time fixed by law, a budget for the

ensuing fiscal period setting forth in detail, for all operating funds, the proposed expenditures

and estimated revenue of the state. Proposed expenditures from any fund shall not exceed the

estimated revenue thereof. On the same date, the governor shall submit to the legislature

general appropriation bills to embody the proposed expenditures and any necessary bill or bills

to provide new or additional revenues to meet proposed expenditures. The amount of any

surplus created or deficit incurred in any fund during the last preceding fiscal period shall be

entered as an item in the budget and in one of the appropriation bills. The governor may

submit amendments to appropriation bills to be offered in either house during consideration of

the bill by that house, and shall submit bills to meet deficiencies in current appropriations.

History: Const. 1963, Art. V, §18, Eff. Jan. 1, 1964.

Line Item Veto

§ 19 Disapproval of items in appropriation bills.

Sec. 19. The governor may disapprove any distinct item or items appropriating moneys in

any appropriation bill. The part or parts approved shall become law, and the item or items

23 EXECUTIVE BRANCH Art. V, §19

disapproved shall be void unless re-passed according to the method prescribed for the passage

of other bills over the executive veto.

History: Const. 1963, Art. V, §19, Eff. Jan. 1, 1964.

Former Constitution: See Const. 1908, Art. V, §37.

More Civil Rights.

§ 29 Civil rights commission; members, term, duties, appropriation.

Sec. 29. There is hereby established a civil rights commission which shall consist of eight

persons, not more than four of whom shall be members of the same political party, who shall

be appointed by the governor, by and with the advice and consent of the senate, for four-year

terms not more than two of which shall expire in the same year. It shall be the duty of the

commission in a manner which may be prescribed by law to investigate alleged discrimination

against any person because of religion, race, color or national origin in the enjoyment of the

civil rights guaranteed by law and by this constitution, and to secure the equal protection of such

civil rights without such discrimination. The legislature shall provide an annual appropriation

for the effective operation of the commission.

No graduated income tax.

§ 7 Income tax.

Sec. 7. No income tax graduated as to rate or base shall be imposed by the state or any of

its subdivisions.

History: Const. 1963, Art. IX, §7, Eff. Jan. 1, 1964.

Other State examples-

§ 8 Sales and use taxes.

Sec. 8. Except as provided in this section, the Legislature shall not impose a sales tax on

retailers at a rate of more than 4% of their gross taxable sales of tangible personal property.

Beginning May 1, 1994, the sales tax shall be imposed on retailers at an additional rate of

2% of their gross taxable sales of tangible personal property not exempt by law and the use tax

at an additional rate of 2%. The proceeds of the sales and use taxes imposed at the additional

rate of 2% shall be deposited in the state school aid fund established in section 11 of this

article. The allocation of sales tax revenue required or authorized by sections 9 and 10 of this

article does not apply to the revenue from the sales tax imposed at the additional rate of 2%.

No sales tax or use tax shall be charged or collected from and after January 1, 1975 on the

sale or use of prescription drugs for human use, or on the sale or use of food for human

consumption except in the case of prepared food intended for immediate consumption as

defined by law. This provision shall not apply to alcoholic beverages.

History: Const. 1963, Art. IX, §8, Eff. Jan. 1, 1964;—Am. Init., approved Nov. 5, 1974, Eff. Dec. 21, 1974;—Am. S.J.R. S, approved

Mar. 15, 1994, Eff. Apr. 30, 1994.

Former Constitution: See Const. 1908, Art. X, §23.

• How to amend it: on the ballot every 16 years. Initiative. Referendum.

ARTICLE XII

Amendment and Revision

§ 1 Amendment by legislative proposal and vote of electors.

Sec. 1. Amendments to this constitution may be proposed in the senate or house of

representatives. Proposed amendments agreed to by two-thirds of the members elected to and

serving in each house on a vote with the names and vote of those voting entered in the

respective journals shall be submitted, not less than 60 days thereafter, to the electors at the

next general election or special election as the legislature shall direct. If a majority of electors

55 AMENDMENT AND REVISION Art. XII, §1

voting on a proposed amendment approve the same, it shall become part of the constitution

and shall abrogate or amend existing provisions of the constitution at the end of 45 days after

the date of the election at which it was approved.

History: Const. 1963, Art. XII, §1, Eff. Jan. 1, 1964.

Former Constitution: See Const. 1908, Art. XVII, §1.

§ 2 Amendment by petition and vote of electors.

Sec. 2. Amendments may be proposed to this constitution by petition of the registered

electors of this state. Every petition shall include the full text of the proposed amendment, and

be signed by registered electors of the state equal in number to at least 10 percent of the total

vote cast for all candidates for governor at the last preceding general election at which a

governor was elected. Such petitions shall be filed with the person authorized by law to receive

the same at least 120 days before the election at which the proposed amendment is to be voted

upon. Any such petition shall be in the form, and shall be signed and circulated in such manner,

as prescribed by law. The person authorized by law to receive such petition shall upon its

receipt determine, as provided by law, the validity and sufficiency of the signatures on the

petition, and make an official announcement thereof at least 60 days prior to the election at

which the proposed amendment is to be voted upon.

Submission of proposal; publication.

Any amendment proposed by such petition shall be submitted, not less than 120 days after

it was filed, to the electors at the next general election. Such proposed amendment, existing

provisions of the constitution which would be altered or abrogated thereby, and the question

as it shall appear on the ballot shall be published in full as provided by law. Copies of such

publication shall be posted in each polling place and furnished to news media as provided by

law.

Ballot, statement of purpose.

The ballot to be used in such election shall contain a statement of the purpose of the

proposed amendment, expressed in not more than 100 words, exclusive of caption. Such

statement of purpose and caption shall be prepared by the person authorized by law, and shall

consist of a true and impartial statement of the purpose of the amendment in such language

as shall create no prejudice for or against the proposed amendment.

Approval of proposal, effective date; conflicting amendments.

If the proposed amendment is approved by a majority of the electors voting on the question,

it shall become part of the constitution, and shall abrogate or amend existing provisions of the

constitution at the end of 45 days after the date of the election at which it was approved. If two

or more amendments approved by the electors at the same election conflict, that amendment

receiving the highest affirmative vote shall prevail.

History: Const. 1963, Art. XII, §2, Eff. Jan. 1, 1964.

Former Constitution: See Const. 1908, Art. XVII, §§2, 3.

§ 3 General revision of constitution; submission of question, convention delegates

and meeting.

Sec. 3. At the general election to be held in the year 1978, and in each 16th year thereafter

and at such times as may be provided by law, the question of a general revision of the

constitution shall be submitted to the electors of the state. If a majority of the electors voting

on the question decide in favor of a convention for such purpose, at an election to be held not

later than six months after the proposal was certified as approved, the electors of each

representative district as then organized shall elect one delegate and the electors of each

senatorial district as then organized shall elect one delegate at a partisan election. The

delegates so elected shall convene at the seat of government on the first Tuesday in October

next succeeding such election or at an earlier date if provided by law.

Art. XII, §1 CONSTITUTION OF MICHIGAN OF 1963 56

Convention officers, rules, membership, personnel, publications.

The convention shall choose its own officers, determine the rules of its proceedings and

judge the qualifications, elections and returns of its members. To fill a vacancy in the office of

any delegate, the governor shall appoint a qualified resident of the same district who shall be a

member of the same party as the delegate vacating the office. The convention shall have power

to appoint such officers, employees and assistants as it deems necessary and to fix their

compensation; to provide for the printing and distribution of its documents, journals and

proceedings; to explain and disseminate information about the proposed constitution and to

complete the business of the convention in an orderly manner. Each delegate shall receive for

his services compensation provided by law.

Submission of proposed constitution or amendment.

No proposed constitution or amendment adopted by such convention shall be submitted to

the electors for approval as hereinafter provided unless by the assent of a majority of all the

delegates elected to and serving in the convention, with the names and vote of those voting

entered in the journal. Any proposed constitution or amendments adopted by such convention

shall be submitted to the qualified electors in the manner and at the time provided by such

convention not less than 90 days after final adjournment of the convention. Upon the approval

of such constitution or amendments by a majority of the qualified electors voting thereon the

constitution or amendments shall take effect as provided by the convention.

History: Const. 1963, Art. XII, §3, Eff. Jan. 1, 1964.

Former Constitution: See Const. 1908, Art. XVII, §4.

§ 4 Severability.

Sec. 4. If any section, subsection or part of Article 2, Section 10, Article 4, Section 54 or

Article 5, Section 30 is for any reason held to be invalid or unconstitutional, the remaining

sections, subsections or parts of those sections shall not be affected but will remain in full force

and effect.

History: Add. Init., approved Nov. 3, 1992, Eff. Dec. 19, 1992.

Trapped in the Whirlpool: Company in Hot Water Over Race Case

Tresa Baldas
The National Law Journal
February 01, 2010

Whirlpool Corp. is in more hot water for alleged racial discrimination at a Tennessee facility that’s landed the company in court three times in the last year — twice before the same federal appellate court — and cost it more than $1 million in damages.

Most recently, the U.S. Court of Appeals for the 6th Circuit on Jan. 26 revived a six-year-old lawsuit filed by three African-American workers who allege they were subjected to daily verbal abuse and a hostile working environment at a now-defunct facility in La Vergne, Tenn.

In reversing rulings of summary judgment, the court in Armstrong v. Whirlpool held that the plaintiffs’ allegations that “racial harassment was so severe and pervasive” deserved to be heard by a jury. The court, however, upheld a summary judgment ruling involving retaliation claims and dismissed the discrimination claims of two other plaintiffs.

The latest ruling comes almost 11 months after the 6th Circuit ruled in favor of three white workers at the same Whirlpool plant who claimed that they were retaliated against because they were friendly with black co-workers, and stuck up for them in the face of racial hostility.

In that case, Barrett v. Whirlpool, the court held that Title VII of the Civil Rights Act forbids that kind of associational discrimination and sent the case back to the trial court. A jury later ended up ruling in favor of Whirlpool.

The La Vergne facility also proved costly for Whirlpool last month, when the company was ordered by a federal judge to pay more than $1 million to an African-American employee who was persistently harassed by a white male co-worker and physically assaulted. The case was Equal Employment Opportunity Commission v. Freeman.

Plaintiffs attorney David Sanford of Washington’s Sanford Wittels & Heisler, who handled both lawsuits against Whirlpool in the 6th Circuit, believes the court has sent a message loud and clear. “The message is ‘Look, these are serious allegations. There’s powerful testimony in the record. And ultimately, this should be in the hands of a jury,’ ” said Sanford, who contends that Whirlpool repeatedly “turned a blind eye” to the plaintiffs’ complaints. “What’s most egregious about this case is that Whirlpool was put on notice about it time and time again, and did nothing about it.”

Sanford predicted that his latest case will prevail before a jury. “We now have three African-Americans who chronicle in great detail the hostile work environment that they suffered for years,” he said. “They talk about racial graffiti, racially hostile comments, racial jokes in the workplace. … It takes you back a hundred years.”

Keith Hult and Adam Wit of the Chicago office of Littler Mendelson, who represented Whirlpool in the 6th Circuit cases, were unavailable for comment. Jill Saletta, director of external communications at Whirlpool, responded, “We do not comment on pending litigation.”

According to court documents, Whirlpool argued in the latest case that “the plaintiffs had failed to raise a genuine issue of material fact that they were subjected to an objectively hostile work environment, and alternatively, had failed to establish a genuine issue of material fact as to Whirlpool’s liability for the plaintiffs’ work environment.”

According to the company’s web site, “Diversity … is a strategic cornerstone at Whirlpool Corporation. Employees are given the opportunity to participate in interactive workshops to discover the power of inclusion and the necessity for a diverse workforce.”

Tresa Baldas can be contacted at tbaldas@alm.com.