The case involved a City electrical lineman who tested positive for methamphetamine on a random drug screen—a result that was confirmed on retest—and whose employment was terminated the following day based on the confirmed result. He claimed the decision was motivated by his prior National Guard service and an alleged intention to reenlist, as well as his pursuit of past benefits. The Court held that the positive drug test provided a sufficient, non-discriminatory basis for termination and granted summary judgment to the City and City Manager.

Key aspects of the opinion:

• Clear, legitimate reason for termination. The Court found that the confirmed positive drug test—standing alone—was a valid, non-discriminatory ground for termination under the City’s policy, which permits discipline up to and including termination.
• Honest-belief and reasoned decision-making. The Court credited the City Manager’s process: consulting the testing physician, the city attorney, and department heads; considering alternatives; and making a reasonably informed decision supported by the record.
• No protected status based on intent to reenlist. The Court concluded Plaintiff did not have USERRA-protected status merely by discussing a potential reenlistment and, even if he did, Defendants would have made the same decision given the confirmed test.
• Temporal proximity and other theories rebutted. Although Plaintiff pointed to timing and alleged inconsistencies, the Court held Defendants’ evidence overcame any inference of discrimination or retaliation.

Significance: This decision reinforces that employers may rely on confirmed drug-test results and a documented, consultative process to make safety-critical employment decisions, even in the face of USERRA claims premised on timing or workplace remarks unrelated to the ultimate decision-maker.

Result: All claims were dismissed on summary judgment. Congratulations to Greg and Kristen for a decisive, hard-earned win for our clients.

Gregory Grant is a partner in our Traverse City office where he focuses his practice on municipal law, employment and labor law, insurance defense, and litigation. He has extensive litigation experience in the areas of employment and labor law, police liability, first amendment law, due process, Open Meetings Act (OMA) and Freedom of Information Act (FOIA) and has earned dismissals in each of these areas. He may be reached in our Traverse City office at (231) 922-1888 or ggrant@cmda-law.com.

Kristen Rewa is a partner in our Grand Rapids office where she focuses her practice on law enforcement defense and litigation, municipal law, employment and labor law, and insurance defense. She has experience in police liability and risk management, internal affairs investigations and disciplinary matters, and public safety policies and procedures. She may be reached in our Grand Rapids office at (616) 975-7470 or krewa@cmda-law.com.

In the past five years, the construction industry in Michigan has faced formidable business challenges, including a severe shortage of skilled tradespeople. This phenomenon is having a ripple effect across the entire sector and has impacted contractors, subcontractors, and developers, as well as the attorneys who represent them. The legal profession plays an important role in addressing the root causes of the shortage, and this article explores ways in which attorneys can assist in navigating these turbulent waters.

LACHES, the official publication of the Oakland County Bar Association, features in-depth original articles authored by OCBA members who are leaders in their field. The articles explore broad areas of practice, specific topics of law, and current issues of debate.

John D. Gwyn is an attorney in our Livonia office where he focuses his practice on real estate law, community association law, commercial litigation, and municipal law. He represents developers and condominium and homeowners’ associations with matters involving real estate, contract, and construction issues. He currently serves as a committee member on the Oakland County Bar Association’s Real Estate Committee. Mr. Gwyn is a Contributor to the Institute of Continuing Legal Education and recently presented an on-demand seminar on short-term rentals. He may be reached at (734) 261-2400 or jgwyn@cmda-law.com.

The Plaintiff, a new police officer and military reservist, was ordered to attend military training for five months. When he left for training, the officer was on probation, had completed his field training, but had just begun his period of observation as a solo officer. When he returned, the department kept him on probation to monitor his ability to meet the department’s expectations. Unfortunately, he did not. He was terminated from employment after an incident that resulted in the county prosecutor issuing Brady/Giglio letter for his actions.

The officer claimed the city violated USERRA by re-employing him as a probationary officer and unfairly targeted him for discipline because of his military status. He filed an administrative complaint with the Department of Labor (DOL) Veterans’ Employment and Training Service (VETS) office, the federal agency charged with investigating and enforcing USERRA. VETS issued a letter asserting that the city violated USERRA and demanded that the city reemploy and compensate the officer. The city disagreed. Plaintiff filed a lawsuit in federal court, demanding seven figures.

Despite the agency ruling, Grant and Rewa were able to demonstrate to the federal court that the city did not violate USERRA or the officer’s constitutional rights. Citing to testimony from the police chief on the importance of the probationary period to evaluating a police officer’s ability to perform his duties in a professional, competent, and legal manner, the Court agreed that the city had the right under USERRA to re-employ the officer as a probationary employee to complete a bona fide observation period. The Court agreed with our attorneys’ legal analysis, which showed the officer’s (and VETS) position was flawed and inconsistent with the current wording of the statute, the DOL’s own administrative guidance, and prior court opinions interpreting the statute.

The Court also agreed that the officer’s constitutional claims lacked merit. The Court dismissed the due process claim as an attempt to constitutionalize what was a contract dispute. Further, the Court found no evidence of any discriminatory animus, pointing to the officer’s own admissions at his deposition that he was not harassed based on his military status. Rather, our attorneys showed that the termination stemmed from the officer’s actions and the practical impossibility his actions posed: our client’s small police department simply cannot employ a police officer that the local prosecutor refused to use as a witness.

Gregory Grant is a partner in our Traverse City office where he focuses his practice on municipal law, employment and labor law, insurance defense, and litigation. He has extensive litigation experience in the areas of employment and labor law, police liability, first amendment law, due process, Open Meetings Act (OMA) and Freedom of Information Act (FOIA) and has earned dismissals in each of these areas. He may be reached in our Traverse City office at (231) 922-1888 or ggrant@cmda-law.com.

Kristen Rewa is a partner in our Grand Rapids office where she focuses her practice on law enforcement defense and litigation, municipal law, employment and labor law, and insurance defense. She has experience in police liability and risk management, internal affairs investigations and disciplinary matters, and public safety policies and procedures. She may be reached in our Grand Rapids office at (616) 975-7470 or krewa@cmda-law.com.

CMDA is thrilled to share that the Chaldean American Chamber of Commerce (CACC) has selected Ronald G. Acho as their 2025 Businessperson of the Year. This annual award is given to a person who consistently makes significant contributions to the Chaldean community and the Michigan business community, including offering pro bono services.

The Chamber states, “Ron Acho, a distinguished lawyer with Cummings, McClorey, Davis & Acho, P.L.C., has been an active and valued member of the Chamber since its inception. When Ron first joined his firm 50 years ago, it was a small two-person team. Working tirelessly at night, Ron built a strong clientele, predominantly within the Chaldean community. Just a year and a half later, he became a partner and co-owner of the firm – this was in 1976. Since then, Ron has made incredible strides, achieved tremendous success and made lasting contributions to our community. We are thrilled to celebrate his many accomplishments.”

“Being selected as Businessperson of the Year by CACC is an incredible honor. The Chamber consistently selects businesspeople for this award for whom I have a tremendous amount of respect and admiration. I am deeply humbled to be included among such esteemed individuals who have previously received this award,” states Acho.

He further shares, “I am very grateful to be receiving this award. The foundation of our Firm was built on a strong commitment to helping others. Throughout my 50-year legal career, I have been blessed to represent many clients and have made an effort to give back to our community through pro bono work and advocating for humanitarian issues. Although I am the one being recognized, the reality is that our Firm’s success is the result of the wonderful people who work here. This award is a testament to our Firm’s solid foundation, as well as my incredible support system comprised of close colleagues and a loving Wife and family.”

Mr. Acho will be recognized at the Chamber’s Annual Award Dinner on May 1, 2025, which is attended by prestigious members of the business, governmental, political, and legal communities.

Restoration of WOWA 

• The current minimum wage of $10.35 per hour increases to $12.48 per hour.
• Effective date is February 21, 2025.

Return to the ESTA

The Paid Medical Leave Act has been repealed so we go back to the Earned Sick Time Act. The goal is the same, ensuring employees the use of paid sick time, but there are important changes. The key points are as follows:

• Under the restored ESTA, an employee will be entitled to up to 72 hours per year of earned paid sick time.
• For smaller employers, which is considered a company that has less than 10 employees, the employees are entitled to accumulate 40 hours paid and 32 hours unpaid.
• The Act applies to all employees whether they are full or part-time, exempt, or non-exempt.
• Time is accumulated at a rate of one hour for 30 hours worked.
• The accrual begins at the date of hire or on February 21, 2025, whichever is later.
• The employer can require the employee to wait 90 days after the date of hire before using any accrued time.
• The accrued time can be carried over up to 72 hours.
• Uploading of the time is not required, but is certainly allowed.
• The accrued time does not have to be paid upon separation of employment.
• This time can be used for medical or psychiatric reasons.
• The employee can use the time for matters associated with domestic violence or sexual assault regarding themselves or a child. This includes attending counseling, relocation, obtaining legal assistance, or attending a meeting related to their child’s health or disability related to the abuse.
• If the use of time is foreseeable, the employee must give seven days’ notice of the intent to use the time.
• If it is not foreseeable, the notice must be given as soon as practicable.
• If more than three days are used, the employer can require medical documentation (a doctor’s note) at the employer’s expense.

Before you get too concerned regarding how your company is going to afford the paid time or manage the employees being off, an employer is in compliance with the Act if they have a paid time policy that allows for at least the same amount of time as provided for in the Act, and the time can be used for the same purposes. So, if you have a policy allowing five days (40 hours) vacation and four days (32 hours) sick time per year, your company is already in compliance. You may need to adjust the rules regarding the usage of that time.

Also, if your employees are working under a collective bargaining agreement (CBA) that isn’t in conformance, the CBA will remain in effect, but any new contract must be in conformance.

An employee can file suit if they feel their rights under the Act have been violated. The allowable damages includes double back pay, liquidated damages, and attorney fees. An employer is also subject to a $1,000 fine by the State of Michigan.

The rights under the Act must be provided to employees at the time of hiring or by February 21, 2025, whichever is later. A poster created by the State of Michigan must also be displayed. This poster is available on the Michigan.gov website.

Suzanne P. Bartos is a partner in our Livonia office where she focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation.

She successfully defends civil rights, wrongful discharge, and discrimination claims in state and federal courts. She has defended governmental entities at both the grievance and arbitration level and has worked with a variety of administrative agencies and tribunals including the U.S. Equal Employment Opportunity Commission, Michigan Employment Security Commission, Michigan Wage and Hour Division, National Labor Relations Board and the Internal Revenue Service. She has also achieved outstanding results for clients in premise liability, breach of contract, collections, warranty disputes, and consumer protection. She may be reached at (734) 261-2400 or sbartos@cmda-law.com.

Because the repeal affects what contract provisions are enforceable, private sector employers with employees covered by a collective bargaining agreement will need to determine what this means for them. Many agreements already contain union security clauses that require employees to pay union dues as a condition of employment. However, even if a collective bargaining agreement does not currently impose this requirement, it is a safe bet that it will be a demand in the next round of negotiations and employers will need to plan accordingly.

Employees who are subject to a union security clause may choose to become a member of the union and pay all dues, fees, and assessments that the union requires of members or choose to remain a non-union member and pay only the union agency fees, which are typically 85%-90% of dues. Under the Communications Workers of America v. Beck U.S. Supreme Court ruling, a private sector employee is not required to become a full union member—only an agency fee payer. Unions determine the representational portion of dues that non-members must pay.

If you have any questions or concerns regarding the Right-to-Work repeal please feel free to contact CMDA to discuss.

Suzanne P. Bartos is a partner in our Livonia office where she focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation.

She successfully defends civil rights, wrongful discharge, and discrimination claims in state and federal courts. She has defended governmental entities at both the grievance and arbitration level and has worked with a variety of administrative agencies and tribunals including the U.S. Equal Employment Opportunity Commission, Michigan Employment Security Commission, Michigan Wage and Hour Division, National Labor Relations Board and the Internal Revenue Service. She has also achieved outstanding results for clients in premise liability, breach of contract, collections, warranty disputes, and consumer protection. She may be reached at (734) 261-2400 or sbartos@cmda-law.com.

On March 28, 2019 Jim Acho spoke to over 100 members of the Metro Detroit Association of Health Underwriters (MDAHU) regarding the effects of the legalization of marijuana in Michigan and how it affects employers and employment law at large.  His presentation provided valuable information that gave members a better understanding of the new law and also strategies on how employers can best guide their workplace in this new era of cannabis tolerance and legality.

Jim Acho is a partner in our Livonia office and may be reached at (734) 261-2400 or jacho@cmda-law.com.

The leave time must be used for personal or family health needs or purposes related to sexual assault or domestic violence. An employee may carry over up to 40 hours of unused time to the following year.

A few key aspects of the Act are:

• The employer is in compliance with this Act if at least 40 hours of paid leave per benefit year is provided to its employees, regardless of its classification.
• The Act doesn’t apply to persons who are covered by a collective bargaining contract.
• The Act doesn’t apply to an individual whose job is scheduled to last for 25 weeks or fewer in a given year.
• The Act doesn’t apply to a business that employs less than 50 individuals.
• The Act utilizes the definition of ‘family member’ contained in the Family Medical Leave Act (FMLA) and includes as a family member one who is legally married to an eligible employee under the laws of any state.
• The employer may provide at least 40 hours of paid medical leave at the beginning of a benefit year to be used throughout that year as needed, if the time is provided at the beginning of the year the employer is not required to allow the employee to carry any time over to the following year.
• Although the employee begins accruing the time on the date of employment, an employer may require the individual be employed for 90 calendar days before using the accrued time.
• An employee has six months to file a complaint of violation of the Act.
• Purposes related to domestic violence or sexual assault include such things as medical or psychiatric care or counseling, obtaining services from victims’ rights organizations or participating in related civil or criminal proceedings.
• An employer may require documentation from the employee using the time for domestic violence or sexual assault purposes, such as a police report or court document.
• An employer may require the employee to comply with its customary notice, procedural and documentation requirements for requesting leave.
• The Department of Licensing and Regulatory Affairs is the department charged with investigating and resolving complaints of violation of this act.
• If a violation is found, the Department of Licensing and Regulatory Affairs may require payment to the employee of the time improperly withheld as well as a fine of not more than $1,000. If the violation is found to be willful an additional fine of $100 per violation can be imposed.
• The Act requires that an employer display a poster outlining the terms of the Act. The Department of licensing and Regulatory Affairs will be creating the poster.

If you have any questions or concerns regarding the PMLA please feel free to contact CMDA to discuss.

Suzanne P. Bartos is a partner in our Livonia office where she focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation.

She successfully defends civil rights, wrongful discharge, and discrimination claims in state and federal courts. She has defended municipal entities at both the grievance and arbitration level and has worked with a variety of administrative agencies and tribunals including the U.S. Equal Employment Opportunity Commission, Michigan Employment Security Commission, Michigan Wage and Hour Division, National Labor Relations Board and the Internal Revenue Service. She has also achieved outstanding results for clients in premise liability, breach of contract, collections, warranty disputes, and consumer protection. Further, she is a trusted legal advisor to school districts and community colleges on a variety of educational and governance issues.

“This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer’s property,” the ballot proposal reads. “This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marijuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marijuana.”

In other words, employers can still insist upon pre-employment drug tests for prospective employees, and employers can decline to hire, and can fire or discipline a worker who tests positive for THC, the psychoactive ingredient in the cannabis plant that produces the “high” for the user. Currently, non-THC cannabinoid oil (also from the cannabis plant) has been used by people in the form of edibles, such as gummy bears, to treat anxiety and general body pain, but the THC is psychoactive and the reason marijuana is classified as a Schedule 1 narcotic.

Further, the federal government still considers marijuana an illegal substance and can choose to prosecute, though many believe the Feds will be “hands off” individual consumers in states where marijuana use is legal. The Feds may still crack down on illegal sellers of marijuana, however, as retail stores that sell marijuana will likely not be up and running until mid-2020.

As for case law in Michigan currently, this is subject to change over time, as Courts likely will rule along with the law that will be enacted shortly. Currently, though, an employee’s right to use marijuana is limited, even if they have a medical marijuana card. In the case of Joseph Casias v Wal-Mart, Mr. Casias, a medical marijuana cardholder who used cannabis to treat the pain caused by an inoperable brain tumor, was fired from his job as an inventory control manager at Wal-Mart because of a positive drug test. It was uncontroverted that Casias had never been high at work, and only smoked pot at night, but he was fired due to a positive drug test. Casias sued Wal-Mart under Michigan law, in which the Michigan Court of Appeals had previously held that an employer can’t disqualify a person from receiving unemployment benefits if they test positive for marijuana and that person holds a medical marijuana card. Unfortunately for Casias, the Sixth Circuit Court of Appeals ruled in favor of Wal-Mart in 2012, holding that Michigan’s medical marijuana law couldn’t dictate the actions of a private employer in terms of termination of employment. Casias is still good law in Michigan.

For now, if you are one who enjoys smoking marijuana and you feel that now that recreation use is legal in Michigan that you can do so with no potential implications to your job, think again. Until the case law eventually evolves, employers have the right to dictate whether or not employees can have marijuana in their systems.

James R. Acho is a partner in our Livonia office where he concentrates his practice on sports law, employment law, municipal and law enforcement defense and commercial litigation. He may be reached at (734) 261-2400 or jacho@cmda-law.com.

Title VII is the federal law that prohibits discrimination (termination from employment) based upon a person’s race, color, nationality, religion or sex/gender. Gender has been defined to include how a person perceives the gender, its stereotypes. In lay terms this means that you cannot discriminate against a person for being a certain sex and also you cannot discriminate against a person for not meeting your own expectations or stereotypes of how that gender should dress, act, speak, etc. In other words, you cannot fire a female because you believe that she should be wearing makeup or fire a male because you believe that he is perhaps speaking or walking in a feminine manner. Utilizing this definition, the Court of Appeals found that Ms. Stephens was terminated based upon her gender since she was terminated after she announced that she would no longer meet the stereotype beliefs of Mr. Rost as to how a male should dress and act. The Court believed that Ms. Stephens’ gender was relevant to the employment decision and, therefore, the employment decision was made “because of her sex” which made it a violation of Title VII.

Having found a violation of Title VII the Court then considered Mr. Rost’s argument that the company was precluded from liability under the Religious Freedom Restoration Act (RFRA) since it was a religious institution and the firing was based on a sincere religious belief. The RFRA applies when the government is attempting to intrude on a person’s religious freedoms, here the EEOC was requiring Mr. Rost to allow his male employee to present as a female at work. The RFRA states that a religious institution can, in effect, discriminate against a person in an employment situation without violating antidiscrimination laws, such as Title VII, if conforming to that Act would create a substantial burden in carrying out the religious exercise of the institution. A simple example is the Catholic Church is not violating the law by not allowing women to attend the seminary because this is based upon the tenant that only a man can be a priest.

In this case, for the funeral home to rely on this exemption it had to show that employing a transgender funeral director would impose a substantial burden on its ability to carry out the self-proclaimed religious exercise of the business of “caring for the grieving.” Mr. Rost argued that Ms. Stephens would cause a distraction and this distraction would interfere with the customer’s grieving process.

The Court found that Mr. Rost could not rely on a customer’s potential biases to establish a substantial burden. In other words, any possible distraction Ms. Stephens may cause was not a reason to terminate her. The Court also disagreed that allowing Ms. Stephens to present as a female was not at odds with Mr. Rost’s religious beliefs and, therefore, it was not a substantial burden in carrying out the religions exercise. Tolerating Ms. Stephens’ gender identity decisions was not the same as supporting these decisions so this would not be against his religious belief that challenging one’s gender was a sin.

There are two important takeaways from this ruling: (1) a business cannot allow an employee’s gender, or how a gender is expressed, to be a reason for an employment decision and, (2) in today’s culture of demanding tolerance of self-expression, the courts will bend the laws beyond their original intent to find discriminatory conduct. Discriminatory conduct goes beyond not approving of women in the workplace or not approving of who one chooses to love to not approving of how someone does not conform to your stereotypical beliefs.

If you have any questions regarding this matter, how it may impact your employment decisions, or any question on an employment issue please contact me at your convenience.Suzanne P. Bartos is a partner in our Livonia office where she focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation.

She has a wealth of experience negotiating grievance arbitrations, contract negotiations, and other labor related issues. Ms. Bartos routinely provides assistance in employment relations matters, including defending claims in state and federal courts involving civil rights, wrongful discharge, discrimination, the Fair Labor Standards Act (FLSA), and the Family Medical Leave Act (FMLA). She may be reached at (734) 261-2400 or sbartos@cmda-law.com.