Client Alerts

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.

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.

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.

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.

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.

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.

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.

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.

Congress just returned Monday. Much has happened this past week.

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

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:

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.

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.

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.

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.

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.

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:

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.

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.

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.