Client Alerts

Apr 25, 2017
Michigan Gets Aggressive in Its Efforts to Combat Opioid Abuse

Michigan Gets Aggressive in Its Efforts to Combat Opioid Abuse.

On April 11, 2017, the State unveiled its new Michigan Automated Prescription System (“MAPS”), which significantly overhauled its predecessor system. The updated MAPS is just one step in the State’s Action Plan presented to Governor Snyder in October 2015 by his Michigan Prescription Drug and Opioid Abuse Task Force.  Effective April 4, 2017, Users and Data Submitters of MAPS were no longer able to access the old System. Registration for the new MAPS opened March 8 and 9, 2017 for Data Submitters (Clearinghouses) and certain Users (Practitioners and Pharmacists), respectively. Registration for other Users (government agencies, law enforcement, and Pharmacy Benefit Managers) opened March 16, 2017.

Mar 16, 2017
Updated Information Regarding Immigration

Starting April 3, 2017, the United States Citizenship and Immigration Services (“USCIS”) will temporarily suspend premium processing for all H-1B petitions. 

Mar 02, 2017
New Trump Executive Order Creates Regulatory Reform Process for All Agencies

On February 24, President Trump issued an “Executive Order on Enforcing the Regulatory Reform Agenda” (“EO”) that requires every executive department and agency to establish within 60 days a Regulatory Reform Officer (“RRO”) to implement the president’s regulatory reform agenda for reviewing and reducing regulatory burdens.

Feb 09, 2017
Suppliers Beware: FCA’s Revised General Terms and Conditions May Hamper Suppliers in Recall and Warranty Disputes

FCA US has revised its Production and Mopar Purchasing General Terms and Conditions to include a new dispute resolution provision which among things, provides FCA with the unilateral right to compel an expedited baseball style arbitration “in cases of disputes relating to quality, warranty, or indemnification under Section 6, 8, or 11 of the terms, including claims in connection with vehicle recalls or customer satisfaction campaign.” (Hereinafter collectively “Recall/Warranty Disputes”). Other matters are arbitrable only by mutual agreement and they too are subject to the expedited rules. (FCA revised terms, § 26(c) and Annex A).

Feb 01, 2017
Warning: Updated Information Regarding Travel Returning to the U.S.

We continue to receive information and updates concerning the Executive Order signed by President Trump on January 27, 2017.

Jan 30, 2017
Warning regarding travel returning to the U.S.

On Friday January 27, 2017, President Trump signed an Executive Order (“Order”) relating to visa issuance, admission to the U.S. procedures, and refugees. The Order is titled "Protecting the Nation from Foreign Terrorist Entry Into the United States."

Jan 20, 2017
New Administration: Continued Emphasis on Compliance

A New Outlook From The White House? Following eight years of a Democratic President with a career businessman will likely lead to a regulatory climate that is more friendly to business generally. However, the legal framework that emphasizes corporate compliance will not likely change in the near future.

Jan 13, 2017
AARP Challenges EEOC Rules on Wellness Programs and Incentives

Does offering incentives to disclose medical information violate the ADA and GINA?

Many companies have jumped on the “wellness” bandwagon, offering programs in varying forms to their employees and employees’ families to promote health and prevent disease. These programs support companies’ legitimate interests in managing health coverage costs, encouraging employees to take a more active role in their health care coverage and promoting employee satisfaction. To induce participants, companies often offer incentives in the form of health coverage premium discounts.

Jan 10, 2017
NHTSA's Proposal to Mandate that Automobile Manufacturers Incorporate Vehicle-to-Vehicle Capabilities into New Cars – an Update

We previously published a Client Alert concerning NHTSA’s proposal to establish a new Federal Motor Vehicle Safety Standard (FMVSS) -- No. 150 – that would mandate vehicle-to-vehicle (V2V) communications for new light vehicles and to standardize the message and format of V2V transmissions. https://www.butzel.com/client-alert-detail/NHTSAa-Proposal-to-Mandate-that-Automobile-Manufactures-Incorporate-Vehicle-to-Vehicle-Capabilities-into-New-Cars.html As we explained, because V2V communications can be a critical component of automated vehicle technologies, the automobile industry should take this opportunity to comment on the NHTSA proposals. NHTSA will rely on the record developed in this proceeding to determine whether V2V should be mandated, as well as whether any of the details of its proposals should be adopted as proposed or refined in some ways. The comment date will be triggered by the publication of the NHTSA Notice of Proposed Rulemaking (NPRM) in the Federal Register, which has now been scheduled to occur on January 12, 2017. Comments are due 90 days after that date, which would be April 12, 2017. Lawyers with Butzel Long will be happy to assist with formulating and submitting comments to NHTSA.

Jan 06, 2017
Staying Connected at CES 2017 - Day 2

Automotive technology continues to dominate the talk of CES.  From ultrasonic holographic haptic controls to advanced mapping software that augments the driver’s reality, it is clear that mobility technology is a hot commodity.  Accompanying these advances are specific legal issues that follow the 2017 legal takeaways highlighted in yesterday’s summary Staying Connected at CES 2017.

Jan 05, 2017
Staying Connected at CES 2017

With CES underway, it is clear that the automobile is poised to be the king of the show. Faraday Future demonstrated the ups and downs of emerging technology, particularly the default mode programming. The Toyota Concept-i offers a vehicle that wants to establish a "relationship" with its drivers. The Chrysler Portal highlights the ingenuity that millennial engineers bring to the user interface of electric and autonomous vehicles.

Dec 21, 2016
Trump Administration Forecast – How Can President Trump Deliver on His Campaign Promises Regarding Trade?

Major changes to U.S. trade policy, such as withdrawal from NAFTA, were among the most prominent of Donald Trump’s campaign promises.  Now that he is the President-elect, it is most appropriate to examine current law to ascertain whether he can deliver on those campaign promises.  

Dec 19, 2016
So you want to test an autonomous vehicle… Michigan moves forward; California seeks to stall Uber

On December 9, 2016, Michigan Governor Rick Snyder signed landmark autonomous vehicle legislation, placing Michigan as one of the most manufacturer-friendly states to develop and test driverless systems. As we noted in our August 11, 2016 Alert, this legislation is unique in that it allows testing of vehicles without the presence of driver, a direction that will significantly impact the mobility economy.

Dec 16, 2016
Qualified Small Employer Health Reimbursement Arrangements

President Obama signed the “21st Century Cures Act” on December 13, 2016, which included a critical change to the Internal Revenue Code (“Code”) and the Employee Retirement Income Security Act (“ERISA”) affecting certain small employers. Specifically, employers that are exempt from the “pay-or-play” rules of the Patient Protection and Affordable Care Act (the “ACA”) may now offer employees a “qualified small employer health reimbursement arrangement” (“QSEHRA”) for plan years beginning after December 31, 2016.

Dec 16, 2016
NHTSA's Proposal to Mandate that Automobile Manufacturers Incorporate Vehicle-to-Vehicle Capabilities into New Cars

What NHTSA is Proposing

On December 13th, NHTSA issued a Notice of Proposed Rulemaking (NPRM) to establish a new Federal Motor Vehicle Safety Standard (FMVSS) that would require automobile manufacturers to incorporate vehicle-to-vehicle (V2V) communications capabilities into all new light vehicles (https://www.nhtsa.gov/About-NHTSA/Press-Releases/nhtsa_v2v_proposed_rule_12132016). The NPRM would also proposed standardized Basic Safety Messages (BSM) communicated between vehicles to ensure interoperability. NHTSA does not propose initially to mandate or specify particular applications using the V2V communications (such as Intersection Movement Assist (IMA) and Left Turn Assist (LTA)), but would allow the industry to develop and deploy particular safety applications.

Dec 02, 2016
Trump Administration Forecast: How the Telecom Sector could be affected

Given the lack of specificity in the Trump campaign with regard to telecommunications policies, trying to forecast the effect of his election on telecommunications regulation involves a fair measure of speculation. But there are some impacts that appear to be fairly clear. Although the Federal Communications Commission (FCC) is ostensibly an independent agency, the influence of the White House was very significant, as evidenced by the FCC's actions in the Open Internet proceeding (also referred to as "Net Neutrality") of reclassifying Internet access service as a Title II telecommunications service after a request to do so by President Obama. The influence of the tech industry on the Obama Administration was significant, and the White House's bias in favor of policies championed by Silicon Valley was embraced by the FCC, as evidenced by a number of rulemaking proceedings.

Dec 01, 2016
Trump Administration Forecast: What to expect if DACA is undone

Recent U.S. immigration policy hasn’t created many winners, but one group that qualifies to some extent are the thousands of children brought into the United States illegally by their parents, often referred to as DREAMers. Unfortunately, they may quickly become losers if President-Elect Trump decides to undo DACA -- the Deferred Action for Childhood Arrivals program.

Author: Alan Seagrave | Legal Service: Immigration
Nov 23, 2016
Even Better Than a Black Friday Sale: Federal Court Blocks DOL Overtime Rule

Businesses have something truly to be thankful for this year, well, at least for now. On Tuesday, November 22, 2016, the federal district court for the Eastern District of Texas issued a preliminary injunction enjoining the Final Overtime Rule on a nationwide basis. The Final Overtime Rule, which was projected to affect over four million workers, was set to go into effect on December 1, 2016. But, by yesterday’s court’s ruling, the Department of Labor is now enjoined from implementing and enforcing the Final Overtime Rule.

Nov 17, 2016
Could President-Elect Trump Withdraw from NAFTA?

President-elect Donald Trump stated during his campaign that he would renegotiate or withdraw from the North American Free Trade Agreement (“NAFTA”). He cites the United States’ $58-billion trade deficit with Mexico and refers to examples like Ford’s recent decision to build a plant in Mexico as evidence that NAFTA has displaced jobs that otherwise would have remained in the United States. The President-elect has also promised to raise tariffs on trade partners, potentially ushering in a trade war and paving the way for protectionist U.S. policies that critics argue could diminish U.S. influence.

Nov 11, 2016
UK High Court: Brexit On Hold Until Parliament Decides

Companies Consider Negotiating Assurances with UK Trade Ministry or Local Governments

On Sunday, October 2, the United Kingdom’s (UK) Prime Minister, Theresa May, announced plans to trigger Article 50 of the Treaty of Lisbon by the end of March, 2017, starting the two-year clock for withdrawal of Britain from the European Union (EU) . May identified the goal of making Britain a “sovereign nation again,” in control of its own immigration and with its own laws. As the world’s fifth largest economy, Britain will become “truly global,” May said, looking beyond Europe as its largest trade partner and naming China, India, Canada, Mexico, South Korea, Australia, New Zealand and Singapore among the nations prepared to sign major free trade deals with the UK.

Nov 02, 2016
IRS Announces Employee Benefits Limits for 2017

The Internal Revenue Service has recently announced cost-of-living adjustments applicable to dollar limitations for retirement plans (and other items) for 2017. Many of the retirement plan limitations will change for 2017 because the increase in the cost-of-living index met the statutory thresholds that trigger their adjustment. However, other limitations will remain unchanged because the increase in the index did not meet the statutory thresholds that trigger their adjustment.

Author: Thomas Shaevsky | Legal Service: Employee Benefits
Nov 01, 2016
Mexico Ramps Up Security Requirements for Light Vehicles

November marks the month new safety regulations in Mexico will enter into effect for light motor vehicles.

Oct 26, 2016
The Imperative of Security by Design: NHTSA Releases Cybersecurity Best Practices

Responding to growing threats to vehicle safety from cybersecurity vulnerabilities, NHTSA released guidelines for cybersecurity best practices for motor vehicle OEMs, suppliers and aftermarket manufacturers.

Introduction

On October 24, 2016, the National Highway Traffic Safety Administration (NHTSA) announced its non-binding guidance titled “Cybersecurity Best Practices for Modern Vehicles” (Guidelines).

In the wake of the well-publicized Jeep hacks (summer 2015) and last Friday’s DDoS attack against the managed DNS infrastructure of Dyn, the need to protect the safety of drivers and passengers against cyber-perils has never been greater. Acknowledging its responsibilities under the Motor Vehicle Safety Act (Act), NHTSA issued this guidance to promote cybersecurity practices that ensure vehicle systems and related software are designed free of unreasonable risks to motor vehicle safety. To date, NHTSA has used its enforcement authority to recall nearly 1.5 million vehicles due to cybersecurity vulnerabilities deemed potential safety risks under the Act.

Oct 26, 2016
Employer Beware: Antitrust Enforcement Agencies Set Their Sights on Anti-Competitive Hiring and Compensation Agreements

The Department of Justice Antitrust Division (DOJ) and the Federal Trade Commission (FTC), the two federal agencies responsible for enforcing the antitrust laws, have issued a “Guidance” document for HR Professionals, outlining the types of compensation and hiring agreements that the enforcement agencies will challenge as violations of the antitrust laws. The Guidance document does not represent a change in antitrust law, but it does represent a clear signal that the agencies are placing unprecedented importance on policing such agreements.

Oct 10, 2016
MACRA is coming; MACRA is coming!

The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) was passed in 2015 and is scheduled to take effect on January 1, 2017. Final regulations are anticipated in November, 2016 leaving little time for provider implementation. The stated purpose of MACRA was to end the sustainable growth rate formula, establish a new framework for rewarding health care for providing better care and combine existing quarterly reporting programs into one system. These three changes are known as the “quality payment program” (“QPP”).

Sep 30, 2016
Suffer a small HIPAA breach? OCR may be looking for you!

The U.S. Department of Health and Human Services, Office of Civil Rights (“OCR”) has raised the stakes for Covered Entities and Business Associates making it clear that it will no longer treat small breaches as a low priority. On August 18, 2016, OCR announced its new Initiative to increase the investigative and enforcement efforts in its Regional Offices concerning small breaches (those effecting less than 500 individuals).

Sep 27, 2016
Open Enrollment Season Is Here – Are You Prepared?

Every fall, many employers which sponsor welfare benefit plans turn their attention to benefit design for the coming year. As a result, the open enrollment season provides the perfect opportunity to ensure current welfare benefit legal requirements are kept up to speed: plan documents and summary plan descriptions; annual notices; and nondiscrimination testing.

Sep 23, 2016
Lawsuits Challenge Department of Labor’s Overtime Pay Regulation

On December 1, 2016, the Department of Labor’s controversial overtime pay regulation, which revises the overtime pay exemption for white-collar employees, is scheduled to take effect. However, on September 20, 2016, two lawsuits were filed in a federal court in Texas in an effort to invalidate the regulation and to enjoin its implementation. A group of twenty-one states, including Michigan, filed one of the lawsuits, and a group of business groups, including the U.S. Chamber of Commerce, filed the second lawsuit.

Author: Gary Klotz | Legal Service: Labor and Employment
Sep 20, 2016
A Paradigm Shift? Understanding the New Federal Automated Vehicles Policy

The US Department of Transportation, in a potential departure from the self-certification regime of the past, outlined a significantly expanded role for the Agency in its September 20, 2016 Federal Autonomous Vehicle Policy. In an unprecedented move, the Agency issued a detailed policy statement that includes:

  • Tools that would lead to the addition of registration and certification with NHTSA for autonomous vehicle systems;
  • Vehicle performance guidelines;
  • A model state policy;
  • A summary of NHTSA’s current regulatory tools; and
  • New tools and authorities.

Stakeholder participation in the sixty-day public comment period for these proposed guidelines and policies is critical, as the Agency views this release as a starting point to advance safety technology.

Sep 20, 2016
No Time for Complacency

A little while ago, we issued an alert with regard to a Petition for Rulemaking filed by two “public interest” advocacy groups – Public Knowledge and the Open Technology Institute at New America (https://www.butzel.com/client-alert-detail/Public-Interest-Groups-Seek-to-Halt-Further-Deployment-of-Connected-Car-Technologies.html). The Petition requested that the FCC adopt several rules that would govern the Dedicated Short Range Communications (DSRC) service that is being deployed in support of connected car technologies and services. The Petition seeks (1) new FCC rules governing privacy and cybersecurity of DSRC services; (2) a prohibition on any services other than safety-of-life in the DSRC spectrum; and (3) a halt to any DSRC deployment until the new, proposed rules are adopted. The FCC put the Petition out for comment, and the comments and reply comments have come in.

Sep 15, 2016
Hanjin Bankruptcy in South Korea Snarls Shipping Lines - But Butzel Long Can Help

On September 1, 2016, bankruptcy proceedings were commenced in South Korea against Hanjin Shipping Co., Ltd. (“Hanjin”). Hanjin is a major South Korean shipping firm and accounts for about 7.8% of U.S. trans-Pacific trade volume. As a result of Hanjin’s insolvency, port terminal operators, railroads, trucking companies and other logistics handlers ceased handling Hanjin’s containers, and a large number of Beneficial Cargo Owners (the owners of the goods being shipped by Hanjin) were, or have been unable to obtain their goods. Suppliers who operate in “Just-in-Time” industries risked customer shutdowns, while retailers and consumer goods companies faced inventory shortages as the holiday season approaches.

Sep 09, 2016
New Proposed Regulations to Severely Limit Family Valuation Discounts

The United States Department of Treasury recently published proposed regulations to Section 2704 of the Internal Revenue Code. Section 2704 was initially enacted to impose certain restrictions and limitations upon transfers of interests in family-controlled business entities among family members.

Aug 23, 2016
Echo, Echo, Echo...

While the federal government has been busy creating thousands of pages of regulations to enforce the Affordable Care Act, one of our county governments has been busy developing a program of its own to improve the health of residents in Oakland County[1]. “ECHO” is the Energizing Connections for Healthier Oakland which has been in development for the last several years. The following will explain several aspects of ECHO. The balance will be addressed in a future Health Alert, but feel free to go to the ECHO website.

Aug 11, 2016
Innovation vs. Safety: Regulatory Impacts on Connected and Autonomous Vehicles

In the struggle to balance innovation and product safety, the global community is reacting to recent events by either aggressively pushing for autonomous legislation or hitting the “pause button” until finalized rules of the road are created. At the same time, the State of Michigan is cruising ahead, seeking to take the lead in autonomy with recent approval of a $17 million loan for the construction of a research facility at Willow Run.

Aug 05, 2016
Brexit: Legal and Business Implications

Founding principles of the EU were open borders for trade and the movement of people. The UK’s decision to leave the European Union (Brexit) will affect all aspects of trade with companies that do business with the UK and with London as the clearinghouse for the Euro.

Aug 02, 2016
Federal Government Extends Moratorium on New HHAs and Ambulance Suppliers

Highlights Government's Efforts to Combat Fraud

In what has come to be an expected issuance every six months, on Friday, July 29, 2016, the Department of Health & Human Services (HHS), Centers for Medicare & Medicaid Services (CMS) released Notice of its renewal of the 6-month moratorium on new provider enrollment for Home Health Agencies (HHAs) and Part B Non-Emergency Ground Ambulance Suppliers, to be effective that same day (you can see our previous alerts on this moratorium here). In a surprising twist, however, HHS has changed the Moratorium’s reach by making the freezes state-wide, as opposed to the limited geographical areas affected in the past. New HHA enrollments are now on hold in the following states: Florida, Illinois, Michigan, and Texas.

Jul 27, 2016
Public Interest Groups Seek to Halt Further Deployment of Connected Car Technologies

The FCC recently issued a Public Notice (DOC-340450A1.pdf) seeking comments on a Petition for Rulemaking filed by two “public interest” advocacy groups – Public Knowledge and the Open Technology Institute at New America. The Petition requests that the FCC adopt several rules that would govern the Dedicated Short Range Communications (DSRC) service that is being deployed in support of connected car technologies and services. The Petition seeks (1) new FCC rules governing privacy and cybersecurity of DSRC services; (2) a prohibition on any services other than safety-of-life in the DSRC spectrum; and (3) a halt to any DSRC deployment until the new, proposed rules are adopted.

Jul 15, 2016
NLRB Holds Unions Can Force Mixed Bargaining Units of Regular and Temporary Employees

In a decision which may have a dramatic impact on employers utilizing the services of staffing companies or temporary agencies, the National Labor Relations Board determined in Miller & Anderson, Inc., 364 NLRB No. 19 (July 11, 2016) that a union may seek a mixed bargaining unit consisting both of temporary employees jointly employed by a “user” employer and a staffing company, together with solely employed regular employees of the user employer; and can do so even if either the user employer or the staffing company objects to the combined unit. In so finding, the Board reversed its decision in Oakwood Care Center, 343 NLRB 659 (2004), which had held that the consent of both employers was required for what was essentially deemed a multi-employer bargaining arrangement.

Jul 14, 2016
NHTSA, Confidentiality Agreements, and the Current Regulatory Environment

The National Highway Traffic Safety Administration (NHTSA) is charged by Congress with promoting safety on U.S. roads. While mandating minimum vehicle safety performance levels through federal standards was the original focus of congressional intent, monitoring vehicle-use trends for signs of potential safety defects has become a major, if not the principal, function of the agency.

Jul 12, 2016
Cybersecurity: What is it and What to do about it

INTRODUCTION

This is a joint health alert with Fortium Partners[1]. Fortium is engaged in assisting companies to solve cybersecurity and other business challenges. They are a national company with partners in many cities in the United States. Many of these partners are former CIOs.

ISSUES

In the wake of major attacks on universities, hospitals and businesses, the risk of ransomware, phishing, and other cyberattacks has never been greater. In fact, cybercrime is big business. American companies lose approximately $250 billion a year due to intellectual property theft and $114 billion directly due to cybercrime. 

Jun 30, 2016
ACA Non-Discrimination Protections - Employers: Immediate Action Required by July 18

Section 1557 of the Affordable Care Act (ACA) and related regulations prohibit discrimination on the basis of race, color, national origin, sex, age, or disability, by any health program or activity that receives federal funding or assistance from the federal Department of Health and Human Services (HHS) or that is administered by an executive agency.

Jun 30, 2016
Employers: Be on the Lookout for Notices from the Health Care Exchanges

Pursuant to the Patient Protection and Affordable Care Act and corresponding regulations, the Health Insurance Marketplaces (also known as the “Exchanges”) will begin to notify certain employers if an employee was determined eligible for advance premium tax credits because the employee attested that he or she was neither enrolled in employer sponsored coverage nor eligible for employer coverage that is affordable and meets the minimum value standard . The Exchanges anticipate sending notices in batches throughout 2016. The Exchanges will send notices to employers if the employee received the premium tax credit for at least one month in 2016 and if the Exchange has an address for the employer.

Author: Thomas Shaevsky | Legal Service: Employee Benefits
Jun 29, 2016
ACA Non-Discrimination Protections - Health Care Providers: Immediate Action Required by July 18

IMPACT:
Health Care Providers, Insurers, TPAs

Section 1557 of the Affordable Care Act (ACA) and related regulations prohibit discrimination on the basis of race, color, national origin, sex, age, or disability, by any health program or activity that receives federal funding or assistance from the federal Department of Health and Human Services (HHS) or that is administered by an executive agency.

Jun 16, 2016
It’s Election Season Again (Not That You Could Avoid it!). Some Do’s and Don’ts for Exempt Organizations Participating in Public Policy and Political Activities

In our May 6 client alert, we described generally the restrictions on tax-exempt organizations that want to participate in public policy or political activities. As we noted in that alert, those restrictions are subjective and very fact-specific, and they apply differently to different types of tax-exempt organizations.

Jun 14, 2016
New Federal Trade Secrets Law Offers the Automotive Industry Additional Arsenal to Fight Trade Secret Theft

There is a growing rise in trade secret theft in the automotive industry. Fast-paced advances in automated and connected car technologies, as well as other manufacturing and technology advances, coupled with a global marketplace and interconnected supply chain makes the automotive industry ripe for trade secret theft.

Jun 06, 2016
Connected Cars at Risk

The FCC is Seeking to Refresh the Record with Respect to Proposals for Sharing of the Spectrum that had been set aside for Vehicle-to-Vehicle Communications - Comments are Due July 7th

Jun 03, 2016
Improved Outlook for Software Patents

Software development companies breathed a collective sigh of relief in May of 2016.

The Federal Circuit reversed a Central District of California decision that held all patent claims to a “self-referential” database as not patent eligible under 35 U.S.C. §101. The Federal Circuit remanded the case for further proceedings by patent holder Enfish for its ADO.NET product.

Jun 02, 2016
False, inaccurate and defamatory online reviews: How to take off the gloves and fight back legally and ethically

Ok. You asked for it and you got it: You implemented review based websites, customer portals, message boards, blogs, social media, chat rooms, bulletin board posts, and other applications which enable customers and users to communicate with your business and each other by posting information, comments, messages, images, etc. All you want is for everyone to be happy!!

Jun 02, 2016
Telemedicine - Getting Paid

We have previously issued a Health Alert on the specific issue of Telemedicine. One of the obstacles in providing telemedicine services has been reimbursement. In order to address this issue at least, in part, we have teamed with Kathy Jo Uecker*. Kathy is very knowledgeable in reimbursement and was pleased to assist in providing information on how providers can be paid for these services.

Jun 01, 2016
Rules Change for Wellness Programs

Background

Many employers encourage employee participation in a wellness program. New final regulations were just issued that change the rules for employers offering employee wellness programs. Changes include expanded restrictions on wellness incentives, additional notice requirements, new prohibitions on employer actions, and new confidentiality requirements.

Author: Lynn McGuire | Legal Service: Employee Benefits
May 18, 2016
Patient Portals: Open Doors or Trap Doors?

The desire by physicians and others to leverage their services and those of their staff as well as the consumer demand for greater access to have information about their health is leading the push for patient portals. This push is coming from many sources: patients, health care providers, insurers and regulators. Patient portals include any type of secure online website that provides access to health information or health care professionals from anywhere using an Internet connection. Patient portals can provide any number of benefits including by example, better patient-provider communication, improved workflow, benefits and coverage, making payments, a customized patient engagement and experience, self-service care, remote management of care, behavior changing preventative care and chronic care management, improved quality, meeting various “meaningful use” incentive requirements, research, coordination of care across providers and many other benefits.

May 18, 2016
Department of Labor Issues Final Overtime Pay Regulation

On May 18, 2016, the Department of Labor issued its final regulation revising the overtime pay exemption for white-collar employees. It issued the proposed rule in July 2015 and, since September 2015, had reviewed over 270,000 comments from businesses, labor unions, and other members of the public about the proposed regulation.

May 16, 2016
US Supreme Court “Punts” Affordable Care Act Contraceptive Mandate Cases

This morning, in a short unsigned opinion read from the bench by Chief Justice John Roberts, the U.S. Supreme Court vacated and remanded seven Affordable Care Act (ACA) contraceptive mandate cases. Zubik v. Burwell, Case No.14-1418 et al. Bringing its total ACA mandate remands to 13, the Court also issued orders today simultaneously vacating and remanding six additional ACA contraceptive mandate cases to their respective federal Courts of Appeal.

May 12, 2016
Defend Trade Secrets Act Signed Into Law

Nearly two weeks ago Butzel Long was one of the first law firms in the nation to announce the passage by both chambers of Congress of the Defend Trade Secrets Act of 2016 (the “DTSA”). The DTSA passed with overwhelming support in both houses. Yesterday, President Obama signed the DTSA into law, and the Act is now effective. Below is a recap of what is new and what every company should be looking to do in light of this new law. Specifically, there are new provisions that must be written into every non-compete or other restrictive covenant signed by any employees. Butzel Long can help keep your company up to date and in conformance, and in doing so keep your assets protected.

May 06, 2016
It’s Election Season Again (Not That You Could Avoid it!) and Time to Revisit the Rules on Tax-Exempt Organizations Participating in Public Policy and Political Activities

In an election year, it’s worth nonprofit organizations reviewing the rules about public policy, lobbying, and political activities. Tax exempt nonprofit organizations must be careful about the types of public and political activities they undertake, but a nonprofit organization doesn’t have to give up the ability to take positions on public issues or to take action to influence public policy merely because of its exempt status. Federal tax limits on the political activities of tax-exempt organizations are, in fact, often narrower than many people lawyers think. Tax-exempt organizations have the right to engage in public debate and make their positions on important issues known, and even 501(c)(3) charities, which are the most heavily regulated, may engage in some political activities that further their tax-exempt, charitable purposes.

Apr 28, 2016
House and Senate Pass New Defend Trade Secrets Act; President Obama Set to Sign Into Law

It is not often that Congress works together, let alone with an overwhelming consensus. But Congress did just that in passing the Defend Trade Secrets Act of 2016 (the “DTSA”) in both houses.

Apr 22, 2016
OIG Issues Revised Exclusion Guidance That Emphasizes The Need For An Effective Compliance Program

In what has become an annual event, during his remarks to over 3,000 healthcare compliance professionals at the HCCA Compliance Institute, on April 18, 2016, Department of Health and Human Services Inspector General Daniel Levinson announced a major regulatory development. This year, Mr. Levinson announced the issuance of revised Guidance for the imposition of permissive exclusions under the OIG’s exclusion authority. The new Guidance, which appears on the OIG’s website and replaces the 1997 version, provides new insight on what the government will look at when deciding to impose an exclusion under section (b)(7) related to civil and administrative healthcare fraud settlements. Under section (b)(7), the OIG presumes that exclusion is appropriate for some period of time for those that have defrauded Medicare or any other Federal healthcare program. The Guidance is designed to identify those circumstances that pose a lower risk to the Federal healthcare programs to rebut this presumption for exclusion, as well as those higher risk areas that support heightened sanctions, including exclusion.

Apr 12, 2016
Certificate of Need Change?

On January 11, 2016, the Federal Trade commission (FTC) and the Department of Justice (DOJ) released a Joint Statement regarding legislation in South Carolina House Bill 3250 (the “Bill”) which would narrow the application and ultimately repeal South Carolina’s Certificate of Need (“CON”) laws. CON laws regulate beds allowed for hospitals and nursing homes as well as numerous other health services such as CT scans, MRIs and surgery centers.

Apr 05, 2016
Hospitals: Increasingly Popular Targets for Ransomware Attacks

In recent days, hospitals in the Washington/Baltimore corridor have been hit by a spate of ransomware attacks, and there is no reason to believe that these attacks will not expand to include hospitals and other healthcare providers’ systems elsewhere, including in Michigan. Indeed, US-CERT, the U.S. Government’s Computer Emergency Readiness Team, has issued an “Alert” to warn hospitals and other healthcare facilities across the country of the growing threat. While cyber criminals have been using variants of ransomware to extort money for a number of years, the emergence of large-scale targeting of hospitals is a relatively recent development that is particularly pernicious. After all, the effects of a ransomware attack -- which infects a computer network and restricts access to it until a ransom is paid to unlock it -- can be, literally, a matter of life and death because such attacks can block access to the current medical records of critically ill patients. Ransomware attacks also threaten the continuity of operations of healthcare facilities, which could lead to even more horrific results.

Mar 22, 2016
US Supreme Court Invalidates State All-Payer Health Claims Databases

Over the last decade, 21 states (including New York and California) have created health claims databases and have imposed substantial and costly health care data reporting requirements upon public and private employers, health care plans, health care insurers, and third-party administrators that provide or pay for health care services. In recent years, 18 more states have moved towards creating such databases (including Michigan, Illinois, and Ohio).

Mar 18, 2016
NHTSA Announcement

Earlier this year, the Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) issued a Policy Statement earlier this year seeking to foster life-saving automated vehicle technologies: http://www.nhtsa.gov/About+NHTSA/Press+Releases/dot-initiatives-accelerating-vehicle-safety-innovations-01142016

Mar 04, 2016
For the First Time, EEOC Sues Private Employers for “Sex Discrimination” Based on Sexual Orientation

On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) filed two lawsuits against Baltimore and Pittsburgh based companies claiming those employers discriminated against employees based on sexual orientation. This marks the first time that the EEOC has sued a private employer under the theory that “sexual orientation” discrimination is a form of “sex discrimination.” This lawsuit forms a part of the EEOC’s continuing effort to seek judicial recognition for its argument that sexual orientation discrimination is unlawful under Title VII of the Civil Rights Act of 1964.

Feb 29, 2016
Telemedicine

This alert is different from others that we have previously provided – it is about the future of one of the innovative aspects of health care technology. Specifically, we wanted to alert our subscribers to some of the telemedicine issues, trends and opportunities. We are co-authoring this specific alert with Susie Vestevich, Esq. an advocate for Michigan-based JEMS Telehealth, manufacturer of emergent telemedicine hardware/software solutions. *JEMS provides the available technology to obtain care for patients in emergency situations. Providing quick information to medical professionals can reduce the recovery times for strokes, heart attacks, and other conditions.

Feb 17, 2016
Paying it Backwards: Medicare and Medicaid Repayments

Even prior to the passage of the Affordable Care Act, the return to CMS of overpayments to providers was an important issue for healthcare providers. With the passage of ACA, specifically Section 6402(a), repayment became required under a sixty (60) day rule. On February 11, 2016, CMS issued the final rule, addressing the key issues of when the clock starts ticking on the sixty (60) day repayment period, and how far back CMS can go to impose the sixty (60) day reporting period.

Feb 16, 2016
Now is the Time to Review Michigan Property Tax Assessments to Avoid Excessive Property Tax Payments

Michigan property owners will be receiving their real property tax Notice of Assessment form within the next few weeks. Many property owners may find that they are being assessed using inflated taxable values if they have not appealed their property taxes over the last several years.

Feb 02, 2016
CMS Once Again Continues Freeze on New HHA and Ambulance Supplier Enrollments

On February 2, 2016, the U.S. Department of Health & Human Services, Centers for Medicare and Medicaid Services (“CMS”), published the fourth 6-month extension of its moratorium freezing enrollment of new Home Health Agencies (“HHA”) and Ambulance Suppliers in federal healthcare programs, including Medicare, Medicaid, and CHIP. The initial moratorium was effective January 30, 2014 and was extended an additional 6 months in July 2014 and in January 2015 and July 2015.

Jan 29, 2016
Responding to the Government’s Increased Emphasis on Compliance

A Changing Landscape: The federal government has made clear that its expectations for effective business ethics and compliance programs have changed.

Jan 21, 2016
Supreme Court Nixes Plan’s Reimbursement From Participant Who Spent Settlement Monies

Late yesterday, the U S Supreme Court rejected a national group health plan’s quest for reimbursement of $120,000 in plan-paid medical expenses from a participant’s general assets, after the participant (injured in an auto accident) spent the $500,000 in settlement monies he had received from the driver at fault. Montanile v. Board of Trustees of the National Elevator Industry Health Care Fund, Sup. Ct. No. 14-723 (1.20.2016).

Author: Diane Soubly | Legal Service: Employee Benefits
Jan 08, 2016
Compliance Efforts in 2016

An ounce of prevention is worth a pound of cure

~ Benjamin Franklin

When every dollar counts for an organization, particularly in a fragile recovering economy, modest proactive compliance expenditures can reduce the risk of substantial fines and costs. With the New Year, healthcare providers and most private and public employers face a new round of compliance efforts under a seemingly “alphabet soup” of regulations and regulators: HIPAA, ACA, ERISA, IRS (Tax Code), CMS, HHS, DOL, SEC and countless others. With an apparent never-ending to-do list, maintaining your organization’s commitment to compliance can be daunting.

Dec 04, 2015
Michigan Minimum Wage Increasing January 1, 2016

Effective January 1, 2016 the minimum wage in Michigan will increase to $8.50 per hour. This is the second of the graduated increases in the minimum wage enacted in 2014 by the Michigan Legislature.

Nov 06, 2015
OIG Releases 2016 Work Plan

On November 2, 2015, the Department of Health & Human Services (“HHS”), Office of Inspector General (“OIG”) issued the 2016 Work Plan detailing new and ongoing OIG audits, evaluations, and certain legal and investigative initiatives related to HHS programs and operations. In its 80-page Work Plan, the OIG details sixty-eight (68) New or Revised Initiatives that it will add to its ongoing reviews. With over 180 identified initiatives, the Work Plan is a must read for anyone participating in HHS-related programs, as it provides a glance at the current focus of the OIG 2016 to assist healthcare providers and suppliers in their compliance efforts.

Oct 28, 2015
New Law Implementing ABLE Act in Michigan

IRS Regulations and State Action Provide Financial Planning Opportunity for People with Disabilities and their Families

Oct 28, 2015
IRS Announces Employee Benefits Limits for 2016

The Internal Revenue Service has recently announced whether there will be cost-of-living adjustments applicable to dollar limitations for retirement plans (and other items) for 2016. Many of the limitations will not change for 2016 because the increase in the cost-of-living index did not meet the statutory thresholds that trigger their adjustment.

Oct 26, 2015
Communicating with Patients Under HIPAA and the TCPA: The Good, the Bad and the "Do-Not-Call"

Using telephone, text messages or FAX messages to communicate with your patients just got a little less risky, but you have to do it “just right” to avoid violations of the Health Insurance Portability and Accountability Act (“HIPAA”) and the Telephone Consumer Protection Act (TCPA). This has important operational implications for HIPAA covered entities—providers, insurers, and your business associates. Here’s how.  

Oct 02, 2015
Open Enrollment Season is Here – Are You Prepared?

Every fall, many employers which sponsor welfare benefit plans start to turn their attention to renewing benefits for the upcoming year. As a result, the open enrollment season provides the perfect opportunity to ensure certain welfare benefit legal requirements are kept up to speed: plan documents and summary plan descriptions; annual notices; and nondiscrimination testing.

Sep 08, 2015
EPA Issues Proposed Hazardous Pharmaceutical Waste Management Rule

On August 31, 2015, EPA proposed a rule pursuant to the Resource Conservation and Recovery Act (RCRA) to create new management standards for discarded pharmaceuticals which are regulated as hazardous wastes. The rule will apply to pharmacies, hospitals, doctors’ offices and other health care facilities as well as reverse distributors and treatment, storage and disposal facilities that handle hazardous pharmaceuticals.

Aug 24, 2015
Passenger Vehicle and Light Truck Tires Antidumping and Countervailing Duty Cases Suggest Opportunities for Automotive Parts Suppliers

Antidumping and countervailing duty petitions are a powerful weapon for U.S. industries that find themselves materially injured by dumped or subsidized imports This was illustrated most recently on August 10th, when the US Department of Commerce issued a final order imposing countervailing duties on certain Passenger Vehicle and Light Truck Tires (“PVLT Tires”) imported from China1.

Aug 12, 2015
How the Department of Labor Plans on Making More Employees Eligible for Overtime Premium Pay

Question: Is the Department of Labor going to make more employees eligible for overtime premium pay?

Answer: Yes. The DOL has proposed revised Fair Labor Standards Act regulations that would convert many employees who are currently “exempt” under the executive, administrative, and professional (EAP) exemptions into “non-exempt” employees.

Author: Gary Klotz | Legal Service: Labor and Employment
Aug 04, 2015
Courts Uphold the Michigan Right To Work Statutes

In December 2012, the State of Michigan enacted separate right-to-work statutes for the private sector, Public Act 348, and the public sector, Public Act 349. Michigan became the 24th right-to-work state at that time. Since then, labor unions have filed lawsuits to invalidate the right-to-work statutes.

Author: Gary Klotz | Legal Service: Labor and Employment
Aug 04, 2015
Time May Be Running Out to Take Advantage of Family Valuation Discounts

Valuation discounts are commonly used in business planning. When transferring an interest in a corporation, LLC or partnership, the value of such interest can be discounted if it is a minority interest in the business or if there are any restrictions imposed on the owner in making subsequent transfers of the interest in the business. In the context of estate planning, valuation discounts play an important role in limiting the value of amounts transferred to family members through gift or sales transactions when using family LLCs or family limited partnerships.

Jul 30, 2015
Pransky v. Falcon Group, Inc.: Should “Finders” take solace?

The Michigan Court of Appeals in Pransky v. Falcon Group Inc. held that under Michigan’s Uniform Securities Act, MCL 451.2101 et seq. (“Securities Act”), finders, as defined in the Securities Act, are not required to register with the state as a “broker-dealer,” “agent” or “investment advisor.” While the Pransky Court seems to give finders a reason to rejoice, finders should remain wary since the holding in Pransky is severely limited by the facts of the case. Further, at the federal level, the Securities and Exchange Commission (“SEC”) has maintained its position that transaction-based compensation, the most typical compensation arrangement for finders, is a hallmark of broker-dealer status.

Jul 27, 2015
CMS Continues to Extend Freeze on New HHA and Ambulance Supplier Enrollments

On July 28, 2015, the U.S. Department of Health & Human Services, Centers for Medicare and Medicaid Services (“CMS”), will publish the third 6-month extension of its moratorium freezing enrollment of new Home Health Agencies (“HHA”) and Ambulance Suppliers in federal healthcare programs, including Medicare, Medicaid, and CHIP. The initial moratorium was effective January 30, 2014 and extended an additional 6 months in July 2014 and again in January 2015. A similar moratorium has been in place for HHAs in areas surrounding Chicago and Miami since July 2013.

Jul 23, 2015
Connecting the Car: Managing the Risks of Cybersecurity and Privacy

Technological innovation and the world of connectivity are moving rapidly, leaving legislators and proposed legislation far behind. The “Internet of Things”—from smart refrigerators to gadgets that sit aside our foreheads and zap us to be restful or alert—includes our increasingly “smart” cars. Automobiles are now mobile devices capable of transmitting and receiving data, whether running or not. Whether a component manufacturer to an EOM or a digital provider streaming content into the vehicle, you are now on notice: new concerns surround vehicle hacking that may put drivers—and vehicle suppliers—at risk.

Jul 21, 2015
EEOC Formally Includes Sexual-Orientation Discrimination as Part of “Sex Discrimination” Under Title VII; Michigan Treasury Issues Guidance on Same-Sex Spousal Benefits

The Equal Employment Opportunity Commission has issued a formal decision in a federal sector case finding that discrimination based on sexual orientation is a form of illegal “sex discrimination” under Title VII of the Civil Rights Act of 1964. The case, Complainant v. Foxx, E.E.O.C., No. 0120133080, issued July 16, 2015, found that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex.” Title VII applies to employers with 15 or more employees.

Jul 01, 2015
Supreme Court Same Sex Marriage Decision and DOL Overtime Expansion – What Employers Need to Know Today

On June 26, 2015, the U.S. Supreme Court decided the landmark case of Obergefell v. Hodges. The case involved whether the Constitution requires a state to issue a marriage license to two people of the same sex and must recognize a same-sex marriage performed out-of-state. The Court held that “same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold-and it now does hold-that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Thus, the Court has ruled that same sex marriage is now legal in all states. Given that Michigan previously banned same-sex marriage, this ruling will impact HR administration moving forward.

Jun 19, 2015
A Tale of Two Decisions: Is a Tribal Entity Subject to the NLRA?

Within a one week time period, two different decisions, issued by two different governing entities, reached two different conclusions as to whether the tribal entity was subject to the National Labor Relations Act (“NLRA”). We will address each of these decisions in chronological order.

Jun 12, 2015
OSHA Issues Guidance on Transgender Use of Company Restrooms

In June 2015, the Occupational Safety and Health Administration (OSHA) published the Guide to Restroom Access for Transgender Workers setting forth the “core principle” that all employees, “including transgender employees, should have access to restrooms that correspond to their gender identify.” In other words, if a company employed Caitlyn Jenner, it would have to allow her to use the women’s restroom.

Author: Brett Miller | Legal Service: Labor and Employment
Jun 01, 2015
The First Cyber Insurance Disputes are Hitting the Courts

These days businesses large and small are grappling with the thorny issue of whether they need to buy insurance against data breaches and other kinds of “cyber liability,” and, if so, what type of coverage to buy—and with what coverage limits. That task will be further complicated by inevitable judicial decisions interpreting new and unfamiliar language in cyber policies. The first round of those cases are beginning to land in court, giving insurance lawyers an inkling of the type of coverage disputes likely to emerge from this relatively new type of coverage.

May 27, 2015
Have a good faith belief a patent is invalid? Slow down! You may still be inducing infringement...

The US Supreme Court Weighs In

Vacating the Federal Circuit’s judgment and remanding for further proceedings, the US Supreme Court held (6-2) that a defendant’s good faith belief that a patent is invalid is not a defense to induced infringement.

Apr 22, 2015
EEOC Issues Proposed Guidance as to Wellness Plan Incentives

The Americans with Disabilities Act (“ADA”) generally prohibits employers from making disability-related inquiries or requiring medical examinations. A common exception to that general prohibition permits voluntary medical examinations as part of an employee health program. The Equal Employment Opportunity Commission (“EEOC”) recently issued a proposed update to its regulations regarding employer wellness programs. The EEOC’s proposed rule addresses: (1) the extent to which employers may offer incentives to employees to participate in wellness programs; and (2) whether employers that comply with regulations implementing the Health Insurance Portability and Accountability Act (“HIPAA”) will also be in compliance with the ADA.

Apr 21, 2015
OIG issues Practical Guidance Tool for Health Care Board Oversight

Speaking at the annual Health Care Compliance Association (HCCA) Compliance Institute on Monday, April 20, 2015, Department of Health & Human Services (HHS) Inspector General Daniel Levinson announced the issuance of a new tool for healthcare boards, entitled Practical Guidance for Health Care Governing Boards on Compliance Oversight, a collaborative effort of HHS, the American Health Lawyers Association, the Association of Healthcare Internal Auditors and HCCA.

Apr 20, 2015
Medicare Physician Reimbursement Changed by Medicare Access and CHIP Authorization Act

Starting in 2019, MACRA (the “Act”) creates incentives to pay physicians based on performance rewarding doctors who hit quality targets and whose patients get healthier. The Act also provides a 0.5% increase on physician Medicare fees over the next four (4) years. Congress passed and the President has signed the Act . The Act repeals the former Sustainable Growth Rate (SGR) formula for physician reimbursement and replaces it with a new approach to Medicare physician payments. Details on this fix to physician reimbursement are sketchy, so regulations will be needed to provide the details. The AMA and AARP both supported the permanent elimination of the SGR which never worked, and had been temporarily “fixed” or delayed many times over the years.

Apr 14, 2015
Delaware Rapid Arbitration Act

Delaware corporations have a new weapon in their arsenal of contract provisions relating to dispute resolution – the Delaware Rapid Arbitration Act.

Apr 10, 2015
Administration's GROW AMERICA Proposal Reveals Expansion of NHTSA Powers

On March 30, 2015, the Obama administration proposed significant changes to NHTSA rights and OEM and Supplier obligations with respect to recalls. The proposal, included in the Generating Renewal, Opportunity, and Work with Accelerated Mobility, Efficiency, and Rebuilding of Infrastructure and Communities throughout America Act (the “GROW AMERICA Act”), reveals “improved tools to protect the public from dangerous vehicle and tire defects.[1] ” The administration’s proposal nearly triples the current budget of the Office of Defects Investigation (“ODI”) in its efforts to monitor data, find defects earlier and conduct investigations of vehicles with suspected defects. Further, several key changes appear in the draft legislation:

Apr 07, 2015
Developers Beware! Northern Long-Eared Bat Listed as Threatened Species

Opting not to list the northern long-eared bat as endangered as originally proposed in its October 2, 2013 proposed rule, the U.S. Fish and Wildlife Service (F&WS) instead listed the northern long-eared bat as “threatened”. Facing a deadline for the listing, the F&WS also issued an interim 4(d) rule providing for the incidental take exemptions as originally proposed, while opening the comment period to consider additional exemptions down the road in a final rule.

Mar 26, 2015
Are Accommodation Rights for Pregnant Employees Expanding?

The United States Supreme Court issued a 52-page decision yesterday in Young v. United Parcel Service, Inc., clarifying an employer’s obligation to accommodate pregnant workers. A divided Supreme Court ruled that pregnant workers can claim the same accommodations that their employers grant to large numbers of workers who have similar but non-pregnancy related restrictions.

Mar 24, 2015
Issue Preclusion for Likelihood of Confusion between Sealtight and Sealtite

The Supreme Court Weighs In

Reversing the Eighth Circuit, the Supreme Court held that issue preclusion applied to this trademark matter. The district court is bound by the holding of the administrative body of Trademark Trial and Appeal Board (TTAB). In particular, whether Hargis’s Sealtite was “confusingly similar” to B&B’s registered trademark Sealtight had been decided affirmatively by the TTAB, and was not available for re-litigation in the courts.

Mar 23, 2015
Blue Cross Blue Shield of Michigan Continues to Fight "Hidden Fees" Suits Despite Major Loss in Court of Appeals

Under the Sixth Circuit's Hi-Lex decision, hundreds of current and former self-insured customers of BCBSM may be entitled to reimbursement of unlawful hidden fees.


BCBSM is relying on ERISA's statute of limitations to stem the tide of lawsuits.

Current and former self-insured customers of BCBSM should immediately determine if they were charged hidden fees and, if so, how much time they have left under ERISA’s statute of limitations to recover those fees.

Mar 20, 2015
FMLA Marriage Definition Change Affecting Same-Sex Marriages Takes Effect March 27

The Family Medical Leave Act (“FMLA”) provides leave rights for employees and, in various situations, provides for leave rights relating to family members, including an employee’s “spouse”. Currently, the Department of Labor (“DOL”) FMLA regulations define “spouse” as a husband and wife as defined for purposes of marriage by the laws “in the state where the employee resides.” Effective March 27, 2015, the regulatory definition of “spouse” will change. Going forward, the validity of a marriage for FMLA purposes will be determined based upon the laws of the “place of celebration” of the marriage rather than the location where the employee resides at the time he or she requests FMLA leave.

Mar 16, 2015
Snyder Issues Energy Agenda For Michigan

In a message to the Michigan Legislature and the citizens of Michigan last week, Governor Rick Snyder set forth his vision and agenda for guiding Michigan’s energy policy for the next 10 years. Citing a critical need to prevent widespread outages due to lack of supply as aging coal plants are taken out of service, Snyder’s vision puts significant emphasis on eliminating energy waste as a large part of the solution. Setting forth a number of “Calls to Action”, the Governor proposes:

Mar 13, 2015
TSCA Reform Legislation Introduced

On Tuesday, March 10, 2015, Sens. David Vitter (R-LA) and Tom Udall (D-NM) introduced long awaited legislation to reform the decades old Toxic Substances Control Act (TSCA) chemical regulation.

Mar 03, 2015
Effective Compliance Programs

Recently, the Securities and Exchange Commission levied $16 million in penalties against Goodyear Tire and Rubber Company under the Foreign Corrupt Practices Act in consequence of bribes paid by Goodyear's subsidiary companies in Angola and Kenya between 2007 and 2011. In addition to the matter of its subsidiaries’ payment of bribes (and then booking those bribes as legitimate business expenses), the SEC faulted Goodyear (the parent company) for not having a Compliance Program adequate to prevent the illegal payments by its subsidiaries.

Feb 27, 2015
Proposed Michigan Legislation Would Ban Non-Compete Agreements

Michigan House Bill 4198, recently introduced by State Representative Lucido (R-Washington Township), doesn’t just severely restrict non-compete clauses in employment agreements, it seeks to ban them outright.

Feb 24, 2015
New H-4 Employment Authorization Rule Announced

The U.S. Citizenship and Immigration Services has announced a new rule allowing certain spouses of H-1B worker to apply for employment authorization. The rule takes effect on May 26, 2015.

Feb 16, 2015
Michigan Employment Relations Commission Invalidates A Ten-Year Union Security Clause Designed To Circumvent The Right-To-Work Law Applicable To Public Sector Employers

In December 2012, Michigan enacted separate right-to-work statutes for both the private sector, Public Act 348, and the public sector, Public Act 349. But the right-to-work statutes did not take effect until March 28, 2013, and they permitted employers and unions to retain and enforce union security clauses that were contained in agreements before March 28, 2013. For that reason, before that March 28, 2013 effective date, labor unions, in both the private sector and the public sector, sought to negotiate lengthy extensions of the union security clauses, which require an employee to become and remain a union member as a condition of employment. The unions’ purpose was to delay the effect of the right-to-work law and, consequently, the ability of union members to discontinue their mandatory union membership under that law.

Author: Gary Klotz | Legal Service: Labor and Employment
Feb 12, 2015
The Truth Behind Michigan’s “New” Owner Liability Law for Trespassers

The Michigan Legislature recently enacted legislation outlining a property owner’s liability for the injury or death of a trespasser. Although the statute is technically “new,” the legal principals expressed by the legislature simply mirror those applied by Michigan courts for decades, developed through case law.

Feb 11, 2015
Commonly-Owned Entities Can Be Responsible For Each Other’s Employee Benefits Liabilities

Recently, we were retained to represent a non-U.S. parent corporation which had encountered employee benefits difficulties due to its acquisition of two completely unrelated U.S. businesses. The difficulties arose due to a concept known as a “controlled group” – a concept unique to the employee benefits and tax arenas. First, we very briefly discuss the controlled group concept. Then we very briefly list some implications of entities being part of the same controlled group. We conclude by suggesting that when purchasing U.S. businesses, non-U.S. companies should retain employee benefits counsel to advise them on U.S. employee benefits issues.

Author: Thomas Shaevsky | Legal Service: Employee Benefits
Feb 10, 2015
Sony, Target, Home Depot… Could Your Vehicle be a Hacker's Next Target?

In this world of connectivity, automobiles become one large mobile device, transmitting and receiving data whether running or not. Whether you are a component manufacturer or a digital provider streaming content into the vehicle, there are new concerns surrounding tracking and hacking that may put American drivers at risk.

Feb 10, 2015
Travelers Pays Bank’s Cyber Breach Loss, Then Sues Bank’s Website Designer to Recover the Payment

In what might well be the beginning of a new wave of litigation arising out of the current epidemic of cyber breaches, Travelers Casualty and Surety Company of America has brought suit against Incognito Studios, a web designer, to recover payments Travelers paid to its insured, Alpine Bank, to cover losses caused by the breach of the bank’s confidential data by hackers. Travelers is suing as the assignee and subrogee of the bank. The Complaint alleges that the web designer was negligent by, among other things, not placing adequate anti-malware software on the bank’s server, not disabling one or more websites of other customers running on the same server, and failing to maintain adequate encryption of bank customer data.

Feb 10, 2015
Right-To-Work Laws Survive Labor Unions’ Challenge Under The Michigan Open Meetings Act

Michigan labor unions have filed several lawsuits challenging the legality of Michigan’s right-to-work laws for the private sector and the public sector. One lawsuit filed by labor unions and some anti-right-to-work politicians claimed that the laws should be invalidated under Michigan’s Open Meetings Act. The OMA requires that meetings be “open to the public,” MCL 15.263, but does not define that phrase. On February 6, 2015, the Michigan Court of Claims, by Judge Deborah Servitto, dismissed the unions’ lawsuit in its entirety. The legality of the right-to-work laws, in other words, survived this union challenge under the Open Meetings Act.

Author: Gary Klotz | Legal Service: Labor and Employment
Feb 09, 2015
CMS Continues to Freeze Out Home Health Agencies and Ambulance Suppliers in HEAT Locations with another 6-month Extension of Moratorium on New Enrollment

The deep freeze that has been sweeping across the nation is not the only chill in the air. On January 29, 2015, the U.S. Department of Health & Human Services, Centers for Medicare and Medicaid Services (“CMS”), extended for another 6-months the moratorium freezing enrollment of Home Health Agencies (“HHA”) and Ambulance Suppliers in federal healthcare programs, including Medicare, Medicaid, and CHIP. The Initial moratorium was effective January 30, 2014 and extended an additional 6 months in July 2014. A similar restriction has been in force in areas surrounding Chicago and Miami since July 2013.

Feb 04, 2015
FCC Increases Penalties for Not Paying Regulatory Fees and USF and other Assessments

The Federal Communications Commission recently issued a Policy Statement in which it announced a new methodology for assessing forfeitures (penalties) on service providers who fail to pay the annual federal regulatory fees and make timely contributions to the Universal Service Fund (USF), the Telecommunications Relay Service (TRS) Fund, and the cost recovery mechanisms for local number portability (LNP) and the North American Numbering Plan (NANP) collected by the Universal Service Administrative Company (USAC).

Jan 23, 2015
Export Administration

The current situation in the region of Syria and Iraq involving the Islamic State (ISIS) seems to worsen daily. The danger for America is very real, and extends beyond potential military hostilities or even terrorism. American businesses that export or are willing to export may be at heightened legal risk. Export Control regulations and related enforcement places a significant responsibility and associated risks on American individuals and companies. The penalties for export violations, both civil and criminal, can be (and often are) draconian; and “I didn’t know” has no weight as a defense or mitigating factor where penalties for exports or technology transfer violations are involved.

Jan 21, 2015
Patentees: US Supreme Court Schools the Federal Circuit. Again.

The Federal Circuit held that the term “molecular weight” was fatally indefinite, rendering a patent for making Copaxone (a drug for treating MS) invalid. In Teva Pharmacueticals USA, Inc. v. Sandoz, Inc., 574 U.S. __, __ (2015), the Supreme Court vacated the Federal Circuit’s judgment.

Jan 07, 2015
Supplier Alert: Chrysler Updates Its Terms And Conditions

Recently, Chrysler published a new version, dated December 2014, of its Production And Mopar Purchasing Terms And Conditions ("New Terms"). The New Terms are not retroactive and apply only to the NAFTA region.

Dec 18, 2014
NLRB Issues New Rules to Expedite Union Representation Elections

In a Final Rule published in the Federal Register on December 15, 2014, the National Labor Relations Board has issued new representation election rules which will significantly reduce the period between the filing of an election petition by a union and the holding of an NLRB election. The new procedures will seriously affect the ability of employers to effectively communicate a union-free message to their work force in the course of a union election campaign, and will require employers to be more proactive in their employee relations programs in order to maintain non-union status. The new rules are scheduled to take effect on April 15, 2015.

Dec 12, 2014
NLRB Allows Employee Use of Employer Email Systems

In a long-awaited and widely-expected ruling, the NLRB held that employee use of company email systems on non-work time for activities protected by the National Labor Relations Act must be permitted if employers have given employees access to their email systems in the course of their work. The decision expressly overturns the Board's 2007 Register Guard decision. The Board provided a narrow exception in the decision, but stated that the exception's use will be "rare." Purple Communications, 361 NLRB #126 (December 11, 2014).

Nov 17, 2014
Indiana Supreme Court Upholds Indiana Right-To-Work Law

Labor unions continue to challenge the 2012 Michigan right-to-work law in pending cases in state and federal courts. The legality of that Michigan law recently received an indirect boost from the Indiana Supreme Court, which upheld the 2012 Indiana right-to-work law that is very similar to the Michigan law.

Nov 13, 2014
IRS Announces New Employee Benefits Limits for 2015

The Internal Revenue Service has recently announced cost-of-living adjustments applicable to dollar limitations for retirement plans (and other items) for 2015. Many of the retirement plan limitations will change for 2015 because the increase in the cost-of-living index met the statutory thresholds that trigger their adjustment. However, other limitations will remain unchanged because the increase in the index did not meet the statutory thresholds that trigger their adjustment.

Dec 28, 2011
Client Alert - Labor & Employment - National Labor Relations Board Postpones – Again – The Effective Date For The Posting of Its Employee Rights Notice
For the National Labor Relations Board, 2011 has been a year of controversial actions. Yet, on December 23rd, the NLRB announced that it was postponing – for the second time – the effective date of one of its most controversial actions in 2011: its new rule requiring all employers to post a "Notification Of Employee Rights Under The National Labor Relations Act."
Author: Gary Klotz | Legal Service: Traditional Labor
Dec 27, 2011
Client Alert - Labor & Employment - New Michigan Law Changes Certain Eligibility Criteria for Unemployment Benefits
Amendments to the Michigan Employment Security Act were signed into law by Governor Rick Snyder on Monday, December 19, 2011, and became effective at that time.   Notable provisions in the amendments include several changes to the eligibility criteria for unemployment benefits.
Dec 23, 2011
Client Alert - Investment Management - SEC Adopts Final Dodd-Frank Definition of Accredited Investor
On December 21, 2011, the Securities and Exchange commission ("SEC") adopted amendments to its rules in order to conform its definition of an "accredited investor" to the requirements of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"). Release No. 33-9287, December 21, 2011, available at http://www.sec.gov/rules/final/2011/33-9287.pdf.  The Dodd-Frank Act requires that the value of a person's primary residence be excluded from the net worth calculation used to determine the person's "accredited investor" status for purposes of determining eligibility for investing in certain securities offerings that are exempt from registration. The prior rule defined "accredited investor" to include a person with a net worth of $1 million, including the value of the person's primary residence.
Dec 22, 2011
Client Alert - Labor & Employment - NLRB Amends Union Election Rules
On December 21, 2011, the National Labor Relations Board adopted a final rule that amends the process for union representation elections.  Employers had criticized the proposed rule as permitting labor unions to engage in "ambush elections."
Dec 08, 2011
Client Alert - Environmental - EPA Announces Changes to Boiler and Incinerator Air Pollution Standards
On December 2, 2011, EPA announced proposed standards to address air emissions from existing and new boilers and commercial and industrial solid waste incinerators (CISWI).
Dec 01, 2011
Automation Alley Newsletter - IRS Announces New Employee Benefits Limits for 2012
The Internal Revenue Service has recently announced cost-of-living adjustments applicable to dollar limitations for retirement plans (and other items) for 2012.  Many of the retirement plan limitations will change for 2012 because the increase in the cost-of-living index met the statutory thresholds that trigger their adjustment.  In many cases, this is the first time in three years the limitations have changed.
Nov 22, 2011
Client Alert - Labor and Employment - NLRB Vote Scheduled for Changes to Union Election Rules
On November 30, 2011, the National Labor Relations Board ("NLRB" or "Board") plans to vote on whether to adopt changes to union representation elections that were proposed earlier this year.  Although the changes were initially proposed with the intent "to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing," the proposed final rule will be "limited to several provisions designed to reduce unnecessary litigation."  However, the Board has not disclosed which provisions of the proposed rule that may include
Nov 01, 2011
Automation Alley Newsletter - Are Your Independent Contractors Misclassified? IRS Offers Employers a “Fresh Start” to Reclassify Workers
The Internal Revenue Service (IRS) and the Department of Labor (DOL) have launched a new program to permit employers that have classified workers as independent contractors to switch the classification to employee through a low-cost settlement program. The IRS will allow employers to change past worker classification issues by making a minimal payment and avoid substantial payroll tax obligations for prior years that would be assessed by the IRS under an audit.
Nov 01, 2011
Client Alert - Investment Management - SEC Approves Form PF for Reporting by Private Fund Advisers
On October 28, 2011, the Securities and Exchange Commission ("SEC") voted unanimously to adopt a new rule requiring certain advisers to hedge funds and other private funds to report information for use by the Financial Stability Oversight Council (FSOC) in monitoring risks to the U.S. financial system.
Oct 25, 2011
Client Alert - Employee Benefits - IRS Announces New Employee Benefits Limits for 2012
The Internal Revenue Service has recently announced cost-of-living adjustments applicable to dollar limitations for retirement plans (and other items) for 2012.  Many of the retirement plan limitations will change for 2012 because the increase in the cost-of-living index met the statutory thresholds that trigger their adjustment.  In many cases, this is the first time in three years the limitations have changed.
Oct 19, 2011
Client Alert - Automotive - United States Ratifies Free Trade Agreement With South Korea
After five years of pendency, Congress passed free trade agreements for Panama, Columbia, and South Korea.  These free trade agreements (FTA) greatly open up markets for companies based in all three countries.  This Client Alert focuses on the Korea and United States Free Trade Agreement and its likely impact on international business between these two nations.
Oct 18, 2011
Client Alert - Are Your Independent Contractors Misclassified? IRS Offers Employers a “Fresh Start” to Reclassify Workers
The Internal Revenue Service (IRS) and the Department of Labor (DOL) have launched a new program to permit employers that have classified workers as independent contractors to switch the classification to employee through a low-cost settlement program.  The IRS will allow employers to change past worker classification issues by making a minimal payment and avoid substantial payroll tax obligations for prior years that would be assessed by the IRS under an audit.
Oct 06, 2011
Client Alert - Labor and Employment - NLRB Postpones Effective Date of Notice-Posting Requirement
The National Labor Relations Board ("NLRB" or "Board") recently announced that it has postponed the implementation date of its new notice-posting requirement from November 14, 2011 to January 31, 2012.  The notice-posting requirement is part of a rule that requires employers to take measures to advise employees of their rights under the National Labor Relations Act.
Oct 01, 2011
Automation Alley Newsletter - New State Tax on Health Care Claims Affects Employer-Sponsored Health Plans

Overview of the New Law

The Michigan legislature approved a bill imposing a 1% tax on certain paid health care claims, for health care services and items beginning on or after January 1, 2012. Governor Snyder is expected to soon sign the bill into law. The tax is capped at $10,000 per individual per year, and expires January 1, 2014. The tax would apply to claims paid by an employer-sponsored group health plan, group and individual health insurance companies, stop loss insurers, and third party administrators of self-insured health plans, with limited exceptions. Insurers and third party administrators are permitted to pass along the associated tax to their employer-sponsored health plan clients.

Sep 30, 2011
Client Alert - Intellectual Property - Protect Your Brand from Association with XXX Domains

Change is Coming

Change is coming to domain name registrations and it could affect you. The international group that has assigned domain names for many years now, the Internet Corporation for Assigned Names and Numbers (ICANN) has created a new .xxx domain. This is the result of many years of discussion on how to segregate and distinguish adult-oriented websites from all others. Scheduled for implementation in December 2011, the .xxx domain registration means that the owner of a domain name that also is a registered trademark such as trademark.com can be associated with a new domain name trademark.xxx without any awareness, permission, or consent. Potential XXX domain registrants see obvious opportunity in being associated with familiar and famous domain names that are also registered trademarks. Needless to say, this pending change and closing deadline has given trademark and service mark owners reason to worry that their goodwill and brand recognition may be associated with adult websites. Thankfully, mark owners can take action to prevent this association.

Sep 20, 2011
Client Alert - Labor and Employment - NLRB Employee Rights Poster Now Available
On August 25, 2011, the National Labor Relations Board (NLRB) promulgated a new rule requiring nearly all private-sector employers within the NLRB’s jurisdiction, regardless of whether or not their workforces are unionized, to post a notice informing employees of their rights under the National Labor Relations Act.
Sep 09, 2011
Client Alert - Employee Benefits - New State Tax on Health Care Claims Affects Employer-Sponsored Health Plans

Overview of the New Law

The Michigan legislature approved a bill imposing a 1% tax on certain paid health care claims, for health care services and items beginning on or after January 1, 2012.  Governor Snyder is expected to soon sign the bill into law.  The tax is capped at $10,000 per individual per year, and expires January 1, 2014.  The tax would apply to claims paid by an employer-sponsored group health plan, group and individual health insurance companies, stop loss insurers, and third party administrators of self-insured health plans, with limited exceptions.   Insurers and third party administrators are permitted to pass along the associated tax to their employer-sponsored health plan clients.

Sep 01, 2011
Client Alert - Labor and Employment - State-by-State Wage and Hour Law Summary
Through Butzel Long’s involvement with the Wage and Hour Defense Institute, the WHDI's annually updated State-by-State Wage and Hour Law Summary is now available to our clients.  The Wage and Hour Defense Institute is comprised of highly talented and experienced wage and hour defense attorneys from 21 law firms across the nation.  The WHDI serves as a nationwide network and meeting ground for top-tier practitioners to engage in professional development in what has become a highly nuanced area of the law, and also to become an established resource for employers on wage and hour matters. Each member was selected for membership in the WHDI based on his or her individual skills and experience representing management in the defense of wage and hour litigation.  Butzel Long is proud to be one of the founding firms of the WHDI.  Both Robert Boonin and Rebecca Davies are WHDI members, and Rob currently serves as its Chair-Elect.  This summary of state wage and hour laws should serve as a valuable desktop resource for human resource professionals, particularly for employers with employees in multiple states.
Sep 01, 2011
Automation Alley Newsletter - NLRB Continues to Scrutinize Employers for “Facebook Firings”
For many employers, the NLRB's enforcement actions have created uncertainty when dealing with a decision to discipline or discharge an employee for inappropriate social media postings. ; A recent survey by the United States Chamber of Commerce indicates that more than 129 cases involving social media have been reviewed by the NLRB. ; Although few have been litigated so far, these cases make it clear that employers need to tread very carefully while disciplining employees for their social media posts. ; Even more troubling is the ability to draft social media policies that can survive the NLRB’s scrutiny. ; Recently, the NLRB's Division of Advice shed some light on the line between protected and unprotected activity in the context of social media by providing examples of unprotected conducted – at least in its view. ; This Client Alert highlights the NLRB's perspective on social media.
Aug 31, 2011
Client Alert - Labor and Employment - Michigan Youth Employment Poster Updated
The Michigan Youth Employment workplace poster has been updated.  This is a required posting for any Michigan employer with minor employees; so any such employer must replace their current poster with the updated version.  Nevertheless, because many employers who do not see themselves as users of child labor do end up employing minors from time to time, we suggest that all employers post the Youth Employment poster, even if they do not currently employ any minors.
Aug 26, 2011
Client Alert - Media - 7th Circuit Finds That A High School Athletic Association Can Enter Into Exclusive Contracts For Live Streaming
In an August 24, 2011 decision (Wisconsin Interscholastic Athletic Association v. Gannett Co., Inc., Case No. 10-2627), the Seventh Circuit Court of Appeals held that the Wisconsin association overseeing high school sports ("WIAA") can limit who streams its games live on the Internet.  The court held that the WIAA has the right to enter into exclusive contracts for live streaming of its events, and that the First Amendment does not entitle other media to claim the same broadcasting rights without paying for them.  The decision could have First Amendment implications for media outlets nationwide.
Aug 26, 2011
Client Alert - Labor and Employment - New Rule Requires Employers to Notify Employees of Their Rights Under the National Labor Relations Act
Yesterday the National Labor Relations Board announced that as of November 14, 2011, employers across the country will be required to inform their employees that they have the right to unionize.  Under its newly promulgated rule, virtually all private sector employers—both unionized and non-unionized—that are subject to the National Labor Relations Act will have to post notices and take other measures advising their employees of their rights under the Act.  An employer that fails to comply with this new rule may be charged with engaging in an unfair labor practice under the NLRA.
Aug 19, 2011
Aerospace & Defense Newsletter - “Implied Certification” of Government Contract Clauses Lead to False Claims Act Violations

AN OVERVIEW OF THE RECENT U.S. COURT OF APPEALS RULING IN UNITED STATES V. SCIENCE APPLICATIONS INTERNATIONAL CORPORATION AND WHAT IT MEANS FOR FEDERAL CONTRACTORS

Last December, amid holiday preparations and plans, the U.S. Court of Appeals for the District of Columbia Circuit decided a case that could potentially affect every federal contractor.  The ruling affirmatively applies the “implied certification” rule giving federal contractors another serious complication in the government contracting process, with no clear or uniform standards on the specific issue.  It highlights the importance of federal contractors having robust, effective contractor compliance systems to minimize the risk of severe penalties.  The case is United States v. Science Applications International Corporation, 626 F.3d 1257 (D.C. Cir. 2010), and its holding has created a great deal of buzz within the government contracting community.  It spread anything but holiday cheer.

Aug 15, 2011
Client Alert - Labor and Employment - NLRB Continues to Scrutinize Employers for “Facebook Firings”
For many employers, the NLRB's enforcement actions have created uncertainty when dealing with a decision to discipline or discharge an employee for inappropriate social media postings. ; A recent survey by the United States Chamber of Commerce indicates that more than 129 cases involving social media have been reviewed by the NLRB. ; Although few have been litigated so far, these cases make it clear that employers need to tread very carefully while disciplining employees for their social media posts. ; Even more troubling is the ability to draft social media policies that can survive the NLRB’s scrutiny. ; Recently, the NLRB's Division of Advice shed some light on the line between protected and unprotected activity in the context of social media by providing examples of unprotected conducted – at least in its view. ; This Client Alert highlights the NLRB's perspective on social media.
Aug 09, 2011
Client Alert: Labor and Employment - Michigan Supreme Court Limits Employer Liability for Employee’s Intentional, Unforeseeable Quid Pro Quo Sexual Harassment
In a significant change in Michigan sexual harassment law, on July 29, 2011 the Michigan Supreme Court issued a 4-3 decision in Hamed v. Wayne County et al., which overruled its 1996 decision of Champion v. Nation Wide Security IncChampion had imposed strict liability on employers under Michigan's Elliott-Larsen Civil Rights Act (ELCRA) for the intentional, criminal sexual acts of its employees.  In Hamed, the Court expressly overruled Champion and changed law which had been in place for the last 15 years.  Hamed holds that an employer's liability for criminal acts of an employee under the ELCRA is now limited to those acts the employer could have reasonably foreseen.
Aug 03, 2011
Client Alert - Labor and Employment - FCRA Amendments Expand Adverse Action Notice Requirements for Employers Using Credit Scores
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") amendments to the Fair Credit Reporting Act ("FCRA"), which became effective on July 21, 2011, affects any person (including an employer) that uses credit scores to take an adverse action against a consumer. ; These amendments potentially expand an employer's notice requirement obligations.
Jul 27, 2011
Client Alert - Trade Secret and Non-Compete - Time to Review your Employment Agreements: “Expired” is not the same as “Terminated” when it comes to enforcing restrictive covenants
Employment agreements that contain both restrictive covenants and specific lengths or terms might pose enforcement risks if the contract simply runs its course and "expires".  That's the conclusion of the Michigan Court of Appeals in the recent unpublished decision in VHC, P.C. v. Elshaarawy, M.D., Docket No. 297625 (Mich. App. June 16, 2011).
Jul 21, 2011
Client Alert - Labor & Employment - NLRB Expands Rights to Handbill on Private Property
The National Labor Relations Board ("NLRB" or "Board") recently expanded the right of workers to engage in organizing activity in public areas of their worksite.  In a 3-1 decision, the NLRB determined that a private property owner violated the National Labor Relations Act by prohibiting a contractors’ off-duty employees from handbilling on the owner’s premises.  New York, New York Hotel and Casino, 356 N.L.R.B. No. 119 (2011).
Jul 20, 2011
Client Alert - Investment Management - SEC Adopts Inflation Adjusted Definition of “Qualified Client” Under The Investment Advisers Act
On July 12, 2011, the Securities and Exchange Commission (the "SEC"), issued Release No. IA-3236 (7/12/11) (the "Order"), raising the dollar amount thresholds in Rule 205-3 under the Investment Advisers Act of 1940 (the "Advisers Act") for purposes of the rule’s exemption under the Advisers Act permitting the payment of performance fees to registered investment advisers by "qualified clients."
Jul 11, 2011
Client Alert - Taxation and Succession Planning - FBAR (Foreign Bank Account Reports) Amnesty Program Allows Taxpayers to Avoid Criminal and Severe Civil Penalties
In February 2011 the Internal Revenue Service announced a second voluntary disclosure initiative to allow taxpayers with undisclosed offshore bank, securities and other financial accounts to comply with US income tax and other offshore account reporting rules for prior years and avoid criminal penalties with reduced civil penalties.  In addition to other persons, these rules apply to citizens and U.S. resident aliens (e.g., U.S. resident aliens that have maintained accounts in their home country).
Jul 05, 2011
Client Alert - Investment Management - SEC Adopts Significant Implementing Rules For Investment Advisers Under Dodd-Frank Act

Introduction

On June 22, 2011, the Securities and Exchange Commission (the "SEC") adopted rules, rule amendments and amendments to Form ADV (the "New Rules") under the Investment Advisers Act of 1940 (the "Advisers Act") to implement Title IV of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

The New Rules were not adopted without some controversy. Two of the five SEC Commissioners voted against adopting new rules and amendments to register hedge fund and private fund advisers, and to impose reporting requirements on funds exempt from registration, arguing that the regulatory burdens of the new reporting requirements on venture capital advisers who are exempt from registration are too heavy, are contrary to congressional intent and would negatively impact capital formation. The SEC Commissioners unanimously voted to adopt rules to implement registration exemptions for venture capital fund advisers, advisers to private funds with less than $100 million in assets under management ("AUM") in the United States, and certain foreign advisers. The SEC Commissioners also unanimously voted to adopt a new rule defining "family offices" that are exempt from registration under the Advisers Act.

Jun 03, 2011
Media Law - The Open Meetings Act Requires Public Bodies to Specify their Decisions

In a recent decision under the Open Meetings Act (“OMA”), the Michigan Court of Appeals held that a public body’s minutes did not adequately reflect the decision made at a meeting, thus violating the OMA.

In Citizens for Public Accountability v. Lawrence, Case No. 292311 (May 26, 2011), the township was in litigation with a developer. They reached a settlement, but before the township approved it, several public meetings were held for the purpose of considering it. The township held a special meeting on July 24, 2008 during which it approved the settlement agreement by adopting a resolution. Subsequently, at another meeting, they approved the minutes of the July 24 meeting and also approved the resolution.

Jun 01, 2011
Aerospace & Defense Newsletter - The Supreme Court's Ruling in General Dynamics and the Superior Knowledge Doctrine

OVERVIEW

The United States Supreme Court rarely issues a decision regarding public contracting.  When it does, this is a noteworthy event.  Such an instance occurred when it handed down an opinion in General Dynamics Corp. v. United States, No. 09-1298 (U.S., May 23, 2011). 

Jun 01, 2011
Automation Alley Newsletter - DOL Rolls-Out Free Smartphone App for Employees to Keep Shadow Time Records: Is this a Concern or an Opportunity for Employers?
Last week, the DOL unveiled a "time-keeping smart phone app" for employees to keep their own time records via an application on their iPhones or iPod Touches. The App is free and can be downloaded from iTunes. While the App's concept seems simple and convenient, it may actually cause considerable confusion.
May 20, 2011
Client Alert - Labor & Employment - DOL Rolls-Out Free Smartphone App for Employees to Keep Shadow Time Records: Is this a Concern or an Opportunity for Employers?
Last week, the DOL unveiled a "time-keeping smart phone app" for employees to keep their own time records via an application on their iPhones or iPod Touches. The App is free and can be downloaded from iTunes. While the App's concept seems simple and convenient, it may actually cause considerable confusion.
May 01, 2011
Automation Alley Newsletter - Dealing with the Aftershocks of the Disaster in Japan
The disruptions to the automotive supply chain caused by the cataclysmic events in Japan are likely to continue for some time and become increasingly severe. Even suppliers that are not directly or immediately affected likely will experience some disruptions to their supply chains as the difficulties encountered by many tier 2 and tier 3 suppliers continue to ripple upward. As OEM plants reduce their production schedules to contend with parts shortages, purchasing forecasts could be sharply reduced and, in some instances, even suspended, causing ripples back downstream. Buyers and sellers, OEMs and suppliers, with and without a physical presence in Japan, with direct supply relationships or multi-tiered relationships with Japan are absorbing the shocks. Prudent suppliers will proactively review their contractual rights and obligations at the earliest opportunity, before situations become critical.
Apr 26, 2011
Media Law - Sunshine Laws Include Access to Voting Information
Certain documents relating to voting can be retrieved under Michigan’s Freedom of Information Act (“FOIA”). On March 9, 2010, the Michigan Court of Appeals ruled in Practical Political Consulting, Inc v Land 287 Mich. App. 434; 789 N.W.2d 178 (2010), that the government should turn over certain information regarding voters in Michigan’s 2008 Presidential Primary election.
Apr 01, 2011
Automation Alley Newsletter - The EEOC Issues Final ADA Regulations and Accompanying Interpretive Guidance
On Friday, March 25, 2011, the Equal Employment Opportunity Commission published its final regulations and accompanying interpretive guidance to implement the ADA Amendments Act of 2008 ("ADAAA"). The final regulations will take effect on May 24, 2011.
Mar 29, 2011
Client Alert - Labor & Employment - The EEOC Issues Final ADA Regulations and Accompanying Interpretive Guidance Implementing the ADA Amendments Act of 2008
On Friday, March 25, 2011, the Equal Employment Opportunity Commission published its final regulations and accompanying interpretive guidance to implement the ADA Amendments Act of 2008 ("ADAAA"). The final regulations will take effect on May 24, 2011.
Legal Service: Traditional Labor
Mar 28, 2011
Client Alert: Manufacturing/Automotive/Advisory - Dealing with Aftershocks of the Disaster in Japan
The disruptions to the automotive supply chain caused by the cataclysmic events in Japan are likely to continue for some time and become increasingly severe. Even suppliers that are not directly or immediately affected likely will experience some disruptions to their supply chains as the difficulties encountered by many tier 2 and tier 3 suppliers continue to ripple upward. As OEM plants reduce their production schedules to contend with parts shortages, purchasing forecasts could be sharply reduced and, in some instances, even suspended, causing ripples back downstream. Buyers and sellers, OEMs and suppliers, with and without a physical presence in Japan, with direct supply relationships or multi-tiered relationships with Japan are absorbing the shocks. Prudent suppliers will proactively review their contractual rights and obligations at the earliest opportunity, before situations become critical.
Mar 25, 2011
Client Alert - Labor & Employment - U.S. Supreme Court Holds that Retaliation Claims Under the FLSA can be Based on the “Filing” of Oral Complaints
Earlier this week, the United States Supreme Court yet again made it easier for employees to bring retaliation lawsuits against their employers. By a 6-2 decision (Justice Kagan did not participate), the Court held that oral complaints implicating the Fair Labor Standards Act ("FLSA") are covered by the Act's anti-retaliation protections.
Mar 01, 2011
Automation Alley Newsletter
When the Michigan Medical Marihuana Act ("MMMA") became law in 2008, Michigan employers were left wondering how the Act would affect their ability to maintain a drug-free workplace. Specifically, would the MMMA prevent an employer from disciplining or discharging an employee who violated company policy by testing positive for marijuana if the employee had a medical marijuana registry card? After two years of uncertainty, Michigan employers have finally received some much needed guidance.
Feb 23, 2011
Client Alert: Labor and Employment - Court Provides Employers with Guidance on Disciplining Employees Registered to Use Medical Marijuana
When the Michigan Medical Marihuana Act ("MMMA") became law in 2008, Michigan employers were left wondering how the Act would affect their ability to maintain a drug-free workplace. Specifically, would the MMMA prevent an employer from disciplining or discharging an employee who violated company policy by testing positive for marijuana if the employee had a medical marijuana registry card? After two years of uncertainty, Michigan employers have finally received some much needed guidance.
Author: James Rosenfeld | Legal Service: Traditional Labor
Feb 02, 2011
Client Alert - Environmental - Michigan Property Assessed Clean Energy Act
One of the many bills that was passed in Michigan at the end of the year was the Property Assessed Clean Energy Act. ; This legislation allows local units of government to establish a Property Assessed Clean Energy Program. Under the Program, the local unit of government could enter into a contract with the property owner to finance energy efficiency improvements or renewable energy systems. "Energy efficiency improvements" is defined as equipment, devices, or material intended to decrease energy consumption, including, but not limited to, all of the following:
Feb 01, 2011
Automation Alley Newsletter
In the United States, corporations and their executives increasingly are being prosecuted and punished for criminal activity. On November 1, 2010, recent amendments to the United States Sentencing Guidelines went into effect that impact the severity of punishment in white-collar cases involving corporations and their executives. These amendments will increase or reduce the severity of a corporation's recommended sentence depending upon, among other things, the strength and effectiveness of its compliance program. The stronger and more effective the program, the less severe the recommended sentence will be. Conversely, a weak compliance program – or the lack of one – will result in a harsher recommended sentence. With the start of a new year, corporations should create or strengthen existing compliance programs now, so as to help reduce the severity of the recommended punishment under the Sentencing Guidelines, and more importantly, to increase the likelihood of avoiding a charge in the first place.
Jan 25, 2011
Client Alert: Labor and Employment - Amendment Of The Michigan Payment Of Wages And Fringe Benefits Act To Permit The Payment Of Payroll By Mandatory Direct Deposit Or Payroll Debit Card

For years, the Michigan Payment of Wages and Fringe Benefits Act lagged behind the technologies available for how to pay employees. Specifically, unlike various other states' payment of wages statutes, the Michigan Act did not permit Michigan employers to require employees to receive their pay by direct deposit. Instead, an employee's consent to direct deposit had to be voluntary, and if an employee did not consent to direct deposit, then the employer had to issue a paper check to the employee.

Effective December 21, 2010, however, the Act was amended to permit, subject to certain conditions, the mandatory use of either direct deposit or a payroll debit card, which is also known as a payroll card or a paycard. This amendment means that an employee cannot insist on payment by the means of a paper check and that an employer can compel the use of direct deposit or payroll debit cards and can accordingly transition into a paperless payroll system with associated savings.

Jan 20, 2011
Client Alert: Business - New Federal Sentencing Guidelines Amendments Reward Strong Corporate Compliance Programs
In the United States, corporations and their executives increasingly are being prosecuted and punished for criminal activity. On November 1, 2010, recent amendments to the United States Sentencing Guidelines went into effect that impact the severity of punishment in white-collar cases involving corporations and their executives. These amendments will increase or reduce the severity of a corporation's recommended sentence depending upon, among other things, the strength and effectiveness of its compliance program. The stronger and more effective the program, the less severe the recommended sentence will be. Conversely, a weak compliance program – or the lack of one – will result in a harsher recommended sentence. With the start of a new year, corporations should create or strengthen existing compliance programs now, so as to help reduce the severity of the recommended punishment under the Sentencing Guidelines, and more importantly, to increase the likelihood of avoiding a charge in the first place.
Jan 19, 2011
Client Alert: Environmental - Self-Implementing Cleanups and "No Further Action" Letters

Butzel Long recently informed you that a package of bills reflecting significant amendments to Michigan's cleanup and liability protection laws passed the State House and Senate, and were awaiting the Governor's signature. Those bills were signed into law and became effective on December 14, 2010.

Two provisions of the new laws concern (a) self implementing cleanups and (b) letters that the Michigan Department of Environmental Quality ("MDEQ") (yes, effective January 4, 2011, it is back to being called DEQ) is now authorized to issue stating that there is no further response action required at a site. This alert provides a brief overview of these two new provisions.

Jan 18, 2011
Client Alert: Environmental - Green Chemistry Eligible to Receive Tax Credits

One of the bills passed by the Michigan Legislature at the end of 2010 was a bill that expanded the state economic development programs to include green chemistry. The Michigan Economic Development Corporation ("MEDC") currently has in its "toolbox" the ability to provide certain grants, tax credits, and other benefits to companies in the high technology and new and developing energy sectors. One such program is the Centers of Energy Excellent Program to promote the development, acceleration, and sustainability of new and developing sectors in the energy field by making state grants available to companies as part of the Michigan Twenty-First Century Job Fund Initiative. The legislation also expands the definition of "high-technology activity" to include "green chemistry" for the purpose of receiving Michigan Economic Growth Act ("MEGA") tax credits against the Michigan Business Tax.

The definition of "green chemistry" includes "chemistry and chemical engineering to design chemical products or processes that reduce or eliminate the use or generation of hazardous substances, while producing high-quality products through safe and efficient manufacturing processes."

Jan 14, 2011
Client Alert: Labor and Employment - UAW’s Principles For Fair Union Elections

The UAW recently issued its “Principles for Fair Union Elections.” In 2011, the UAW plans to use these Principles in an effort to organize new members, initially at foreign-owned automotive companies and, if successful, then potentially at automotive supply companies and companies in other industries. The UAW has publicized the Principles as evidence that the UAW is less confrontational and more collaborative with employers, especially foreign-owned automotive companies.

For employers, particularly in the automotive industry – either foreign-owned automotive manufacturers or non-unionized automotive suppliers – the questions are whether an employer should accept or reject the Principles and what would be the consequences of either acceptance or rejection of the Principles.

Author: Gary Klotz | Legal Service: Traditional Labor
Jan 01, 2011
Automation Alley Newsletter
NLRB Rules That Employer and Union Can Lawfully Negotiate Contract Terms Before The Union Represents A Majority of The Employers
Dec 23, 2010
E-news: Employee Benefits

The Patient Protection and Affordable Care Act ("Act") enacted on March 23, 2010 included a provision requiring insured group health plans (other than grandfathered health plans) to satisfy the nondiscrimination requirements of Internal Revenue Code ("Code") Section 105(h)(2). Prior to the Act, Code Section 105(h) only applied to self-insured health plans and required that they not discriminate in favor of highly compensated individuals as to eligibility to participate in the plan or in favor of highly compensated participants as to benefits available under the plan. The Act provided for the first time that insured group health plans comply with Code Section 105(h) under "rules similar to the rules" that applied to self-insured plans. In a Notice issued on December 22, 2010, the IRS has suspended application and enforcement of this rule for insured group health plans until regulatory guidance is issued.

Under the Act, an insured group health plan that failed to comply with the new nondiscrimination rules could have been subject to (1) an excise tax of $100 for each day of noncompliance with respect to each individual to whom such noncompliance relates (with certain exceptions), (2) in the case of a non-Federal governmental group health plan, civil money penalties under the Public Health Services Act of up to $100 per day per individual for each day the plan does not comply with the requirements (with certain exceptions), or (3) a civil action to enjoin a noncompliant act or practice or for other appropriate equitable relief under the Employee Retirement Income Security Act of 1974 ("ERISA").

Dec 23, 2010
E-news: Labor and Employment

The Employee Free Choice Act will not be enacted during the next two years. But the pro-union National Labor Relations Board will continue to issue rulings that will help unions organize new members.

The latest example of this NLRB trend is a decision involving Dana Corporation and the UAW. Dana Corporation, 356 NLRB #49 (2010). In a 2 to 1 decision, the NLRB ruled that Dana and the UAW, which represented Dana employees at 9 other facilities, did not violate federal labor law by entering a Letter of Agreement before the UAW represented the employees at a non-unionized Dana facility. The Letter was not even disclosed to the Dana employees whom the UAW wanted to organize.

Dec 22, 2010
E-news: Labor and Employment

On December 22, 2010, the National Labor Relations Board published, in the Federal Register, "Proposed Rules Governing Notification of Employee Rights under the National Labor Relations Act." For 60 days following December 22nd, members of the public may submit comments about these proposed rules to the NLRB.

These Proposed Rules confirm that the current NLRB will act aggressively to help labor unions.

Author: Gary Klotz | Legal Service: Traditional Labor
Dec 21, 2010
E-news: Intellectual Property

On December 16, in a conference call which included U.S. Commerce Secretary Gary Locke, U.S. Patent and Trademark Office (USPTO) Director David Kappos and Michigan Governor Jennifer Granholm it was announced that the USPTO will locate its first Regional Patent Office in Detroit, Michigan. Employing 100 patent examiners at the outset, the regional office is scheduled to open sometime in 2011. In part, this move by the USPTO is intended to facilitate the hiring of additional qualified examiners and so reduce the present pendency of patent applications at the USPTO. According to Secretary Locke, the goal is to "get down to a 1 year review."

According to USPTO Director Kappos, the corps of examiners in the new Detroit Regional Office will represent, at least in part, technologies that mesh well with local industries, including automotive and emerging technologies.

Oct 28, 2010
Feb 23, 2010