Robert Schindler / Adam Walker Lusk Albertson Detroit-Grand Rapids RSchindler@LuskAlbertson

1. Legal Update 2019 MNA Fall Conference Shanty Creek Resort / Bellaire, MI www.LuskAlbertson.com/MNA2019 Robert Schindler / Adam Walker Lusk Albertson Detroit-Grand Rapids RSchindler@LuskAlbertson.com AWalker@LuskAlbertson.com @LuskAlbertson / @RTSchindler / @AJT_Walker

2. Overview PMLA Marijuana/CBD FLSA Abortion LGBTQ Rights Significant Cases/Legal Guidance Equal Employment Public and Nonpublic School Funding FMLA And More!

3. Paid Medical Leave Act

4. The Basics An eligible employee must accrue paid medical leave at a rate of at least one hour of paid medical leave for every 35 hours worked. An employer is not required to allow an eligible employee to accrue more than 1 hour of paid medical leave in a calendar week. An employer may limit an eligible employee's accrual of paid medical leave to not less than 40 hours per benefit year. An employer is not required to allow an eligible employee to carry over more than 40 hours of unused accrued paid medical leave from one benefit year to another benefit year. An employer is not required to allow an eligible employee to use more than 40 hours of paid family medical leave in a single benefit year.

5. Usage of Leave The eligible employee’s / family member’s mental or physical illness, injury, or health condition – including diagnosis or preventative care. If the eligible employee / family member is a victim of domestic violence or sexual assault: The medical care or psychological or other counseling for physical or psychological injury or disability; To obtain services from a victim services organization; To relocate due to domestic violence or sexual assault; To obtain legal services; or To participate in any civil or criminal proceedings related to or resulting from the domestic violence or sexual assault. If the eligible employee or their child’s school or place of care is closed by public order due to a public health emergency

6. Usage of Leave The Act does not require the ability to use the leave for any purpose other than as defined in the Act. “Mental or physical illness, injury, or health condition” is not defined by the Act. Likely to be construed very broadly. Public health emergency not defined. It must be pursuant to a “public order,” but no rule as to who can declare such public order. Family member includes child, parent, spouse, grandchild, grandparent, or sibling. Child and parent include adoptive, foster, step, legal guardian/ward, in loco parentis, or eligible employee’s parent in-law. Sibling includes foster or adoptive.

7. Employers and Eligible Employees “Employer” includes “educational institution” or “government entity” that employs 50 or more individuals. “Eligible Employee” means an individual engaged in service to an employer from whom an employer is required to withhold federal taxes. Not Eligible Employees: FLSA-exempt employees. Individuals under 18, or under 20 being paid a training wage. Individuals employed by a temp firm. Employees employed for 25 weeks or fewer in calendar year for job scheduled for 25 weeks or fewer. “Variable hour” employees, i.e. unclear if employee will average at least 30 hours per week during the “initial measurement period” (3-12 month period chosen by employer). Employee who worked an average of fewer than 25 hours per week during immediately preceding calendar year.

8. Impact on CBAs The Act is not meant to diminish any rights provided by CBA. The Act does not preempt or override the terms of any CBA in effect prior to the effective date of the Act (March 29, 2019). However, the provisions of the Act apply beginning on the stated expiration date of a CBA in effect on the effective date of the Act.

9. Recreational Marijuana Now legal in Michigan, but no big day-to-day changes. Students still underage. Remains illegal at a federal level (drug free schools). Employees are not entitled to use marijuana. Can still be disciplined for positive drug tests, even if the marijuana was consumed at home. Ensure Board policies are updated. Board policies may prohibit alcohol, illegal drugs, etc. Policies should be similar to alcohol and/or tobacco policies.

10. Medical Marijuana Reminder: Michigan Medical Marihuana Act does NOT permit medical marijuana users to engage in use in school bus or on school grounds. Eplee v City of Lansing, Mich. Ct. App. (2019) Facts: Employer made conditional offer of employment to employee with medical marijuana card, pending drug test. Employee tested positive for THC and her offer was withdrawn. Holding: Withdrawal was not “penalty” under Act; termination upheld. Case relied on at-will nature of employment. May be different for employees with property interest in employment.

11. Cannabidiol (CBD) Chemical compound derived from cannabis plant. Found in both marijuana and hemp. Marijuana still illegal federally. Industrial hemp is legal federally and in Michigan. Strict regulations for industrial hemp, but key difference between hemp and marijuana is presence of maximum of 0.3% THC in hemp. CBD derived from hemp is not marijuana. Potentially legal, but still not approved by FDA for use in food and dietary supplements. CBD derived from marijuana is still illegal. Exception: Epiodiolex (Schedule V drug)

12. CBD The Million Dollar Question: Should school districts allow students and / or employees to use CBD at school? Unsettled territory; numerous issues outstanding (FDA issues, unreliable manufacturers / sellers, etc.). Slow down, take “wait and see” approach as developments occur. What about students with an IEP/504 plan? Epidiolex is only approved marijuana-derived CBD product. Not required to provide illegal substance under law. Lack of clarity on topic makes IEP/504 situations difficult. Try to work out alternative accommodations with parents.

13. Fair Labor Standards Act To qualify for “white collar” minimum wage / overtime exemption, employee must: Be paid a predetermined / fixed salary not subject to reduction. Meet standard salary level threshold. Perform job duties that primarily involve executive, administrative, or professional duties.

14. Fair Labor Standards Act New Final Rule to Regulations (Sept. 24, 2019) Final Rule increases standard salary level threshold from $455 / week to $684 / week ($35,568 annually). Estimated 1.2 million employees becoming overtime-eligible. Total annual compensation level threshold for “highly compensated employees” increased from $100,000 to $107,432. Estimated 101,800 employees becoming overtime-eligible. First increase in standard salary level threshold since 2004 (2016 attempt was unsuccessful).

15. Fair Labor Standards Act Final Rule introduces option to use annual nondiscretionary bonuses and incentive payments (e.g., commissions) toward standard salary level. Maximum of 10%. If employee does not satisfy standard salary level, employer may make “catch-up” payment to employee to keep employee’s exempt status. Example Employer pays employee $33,000, expecting employee’s commissions ($2,568+, or 7.8%+ of salary) to bridge the gap between the standard salary level ($35,568) and the salary actually paid. However, if employee only accrues $1,000 for commission, employee will become eligible for overtime unless employer timely pays the remaining $1,568 to the employee.

16. Abortion MCL 388.1766 Prior to amendment, required school districts to implement a policy that: Prohibited school officials, board members, employees, or “other persons” from referring a pupil for an abortion or assisting a pupil in obtaining an abortion. Assessed a financial penalty to a school employee who violated the prohibitions amounting to at least 3% of the employee’s annual compensation. Assessed a similar financial penalty for violations of MCL 380.1507 (various requirements relative to instruction in sex education). Failure to implement a policy carried a $100,000.00 forfeiture of state school aid.

17. Abortion MCL 388.1766 After amendment, only requires a policy prohibiting a school official, board member, or employee from referring a pupil for an abortion or assisting the pupil in obtaining an abortion. Does not apply to parents or legal guardians of the pupil. No “other persons” language. No language requiring 3% penalty to employees for violation. Does not require references to MCL 380.1507. Failure to adopt and implement policy is subject to parental/legal guardian challenge: Failure to investigate and/or take corrective action may result in appeal to ISD and, ultimately, MDE. If MDE determines a violation occurred, the school district will forfeit 1% of its total state school aid allocation under the State School Aid Act (among other remedial consequences).

18. LGBTQ Rights (Students) Doe v Boyertown Area School District (3rd Cir. 2018) Facts: Students challenged district’s transgender locker room policy that allowed transgender students to use restrooms and locker rooms consistent with their gender identities. Students alleged violations of constitutional right to privacy and of Title IX. Holding: District did not violate students’ rights. Reasoning Policy was narrowly tailored to serve a compelling government interest – namely to prevent harm to transgender students that would be caused if the students were forced to use bathrooms / locker rooms inconsistent with their gender identities. Policy did not violate Title IX, as it was applied uniformly to the sexes. Cert. denied.

19. LGBTQ Rights (Employees) Cert. granted in the following cases: Altitude Express, Inc, v Zarda(2d Cir.) Employee alleged he was terminated from employment based on his LGBT status. Court of Appeals held that Title VII permits claims of sexual orientation discrimination as “subset” of sex discrimination. Bostock v Clayton Co (11th Cir.) Employee alleged he was terminated by government when it discovered he was gay. Court of Appeals held that Title VII does not permit claims of discrimination based on sexual orientation. RG & GR Harris Funeral Homes, Inc, v EEOC (6th Cir.) Male employee terminated after he requested to wear women’s clothing to work; employer believed request would violate dress code and was against religious beliefs. Court of Appeals held termination of the transgender employee was gender stereotyping incompatible with Title VII.

20. Equal Employment Michigan Attorney General Opinion No. 7308 (December 21, 2018) Michigan State Housing Development Authority’s Equal Employment Opportunity (EEO) policy: Applied to direct and pass-through loans approved for benefit of contractors / developers. Required developers constructing Authority-financed developments to abide by EEO plan. Developers required to make “good-faith effort” to achieve Authority’s goal percentage for total project hours worked by minorities and women. Failure to make good-faith effort made developers “non-awardable” for up to six years – Authority’s projects would be unavailable.

21. Equal Employment Michigan Attorney General Opinion No. 7308 (December 21, 2018) AG said EEO policy was unconstitutional. Reasoning: not only unconstitutional for government, through public contracts, to discriminate against / give preference to individuals / groups based on classifications, but it was also unconstitutional for government to use public contracts to require private parties to grant preferential treatment on basis of race, sex, color, ethnicity, or national origin.

22. Funding of Nonpublic Schools Council of Orgs & Others for Ed About Parochiaid v State, 326 Mich App 124 (2018). Facts: Michigan statute allows general fund to be used “to reimburse actual costs incurred by nonpublic schools in complying with a health, safety, or welfare requirement mandated by a law or administrative rule” of Michigan. Issue: Does law violate Michigan Constitution’s prohibition on use of public monies or property to directly or indirectly aid or maintain nonpublic schools?

23. Funding of Nonpublic Schools Council of Orgs & Others for Ed About Parochiaid v State, 326 Mich App 124 (2018). Holding: No constitutional violation. Reasoning: Constitutional prohibition applies to state aid to nonpublic school for “instructional or educational services,” not circumstances where aid is merely “incidental” to nonpublic school’s support and maintenance.

24. Funding of Nonpublic Schools Council of Orgs & Others for Ed About Parochiaid v State, 326 Mich App 124 (2018). The allocation was constitutional because: Compliance with the health, safety, and welfare mandate was incidental to instructional and educational services. Compliance was not primary function of nonpublic schools’ existence and operation. Did not involve or result in excessive religious entanglement. Appeal granted by Michigan Supreme Court.

25. Funding of Public Schools Taxpayers for Michigan Constitutional Government v Dep’t of Tech., Mgmt., & Budget, __NW2d__ (2019). Issues State used Proposal A funds to pay local school districts and charter schools, allegedly shifting burden onto local governments in violation of the Headlee Amendment. Proposal A funds replaced previous use of State funds, causing local governments to raise taxes in order to offset lost revenue from the State. State allegedly violated Section 30 of the Headlee Amendment by directing State funds to local governments for new State mandates and counting those payments toward its obligation under Section 30 of the Headlee Amendment.

26. Funding of Public Schools Taxpayers for Michigan Constitutional Government v Dep’t of Tech., Mgmt., & Budget, __NW2d__ (2019). Holdings No violation of Section 30 based on Proposal A. Proposal A changed how revenue is shared among local governments but did not reduce overall percentage allotment of State dollars to local governments overall. State violated Section 30 based on Section 29. Law required State to make appropriations to pay local governments for any necessary increased costs stemming from new activities or services arising after 1978. Funding for new activities / services had to be in addition to funding obligation under Section 30, and State violated Headlee Amendment when it counted costs for new activities and services toward its Section 30 obligation. No damages (not retroactive). Decision may be appealed to Michigan Supreme Court – potentially large fiscal impact if overturned.

27. FMLA U.S. Department of Labor Wage and Hour Division Opinion Letter (FMLA 2019-2-A), August 8, 2019. Issue: May an employee take intermittent FMLA leave to attend a meeting to discuss the employee’s son’s or daughter’s Individualized Education Program (IEP)? Answer: Yes. If the child has a qualifying serious health condition, the regulations implementing the FMLA allow the parent to “make arrangements for changes in care,” which include IEP meetings. Making arrangements for changes in care does not necessarily involve a facility that provides medical treatment.

28. Collective Bargaining Kendzierski v Macomb Co, 503 Mich 296 (2019) Issue: Do retirement benefits granted through a CBA survive the expiration of the agreement? Answer: No. The “general durational clause” controls the lifespan of the CBA’s terms unless a term contains specific durational language. Example: A CBA that provides an employee’s spouse will receive benefits after the employee is deceased, without specifying the length of the benefit, only entitles the spouse to benefits during the term of the CBA. Nothing new - consistent with recent federal decisions on the same topic.

29. Unions Clarkston Ed Ass’n v Conwell, Case No. 340470 (unpublished Court of Appeals opinion) (January 10, 2019) Issue: CBA between school district and union contained grandfathered provision that required teachers to pay union fees in order to continue employment. Teacher resigned membership but union insisted he pay fair share fees. Holding: Union’s enforcement of provision violated the PERA. Key takeaway: Case continues trend emphasizing employees’ rights not to associate with unions. Similar agency shop cases: MEA v Robinson, Case No. 343570 (March 19, 2019) Ann Arbor Ed Ass’n v Finnan, Case No. 343577 (March 19, 2019) Ann Arbor Ed Ass’n v Merante, Case No. 343608 (March 19, 2019)

30. FOIA Doe v Unnamed Sch Dist, Case No. 340234 (March 21, 2019) Facts: Citizen made FOIA request for “any and all information pertaining to [Jane Roe] and/or [Jane Doe]’s access or lack thereof to school property, specifically ******** Elementary.” Roe and Doe were “legal decision makers” for a minor student at elementary school. FOIA request was denied under FERPA initially but, subsequently, records were to be released with redactions. Roe and Doe filed an action to prevent disclosure.

31. FOIA Doe v Unnamed Sch Dist, Case No. 340234 (March 21, 2019) Holding: School must disclosure records with redactions. Records were not directly related to student. Only referenced student in context of Doe’s and Roe’s presence on school grounds. Court found no “clearly unwarranted invasion of privacy.” Doe’s and Roe’s privacy interests did not outweigh the public’s interest in understanding the school district’s security and accessibility operations and policies.

32. Questions?

33. Contact Information Bob Schindler RSchindler@LuskAlbertson.com 248.988.5696 – Direct 248.431.5401 – Cell @RTSchindler Adam Walker AWalker@LuskAlbertson.com 616.278.0822 – Direct 248.830.6362 – Cell @AJT_Walker