Employers Should act Despite Supreme Court ‘Adopt and Amend’ Cliff Hanger

Back in July, I reported on the oral arguments before the Michigan Supreme Court in In re Advisory Opinion on 2018 PA 368 & 369. As you will recall, the Supreme Court was asked to advise on whether the “adopt and amend” process utilized by the Michigan Legislature with regard to the Paid Medical Leave Act (PMLA) and the Improved Workforce Opportunity Act was constitutional.

I would have thought that the Supreme Court would have weighed in by now, given it held oral argument during the middle of its summer break. I can only guess that there will be a strong dissent opinion and perhaps some separate concurrence opinions. Hopefully, the Supreme Court will issue an advisory opinion soon.

But, what should employers be doing now that 2019 is coming to an end? Unlike the Family and Medical Leave Act (FMLA), which becomes an issue when an employee indicates his or her need for a leave of absence, the PMLA grants most every non-exempt employee who worked, on average, 25 or more hours a week during the immediately preceding calendar year, 40 hours of paid time off that can be used for the purposes identified in the act.

So, this is just a reminder to audit your employee’s hours for 2019. Some employees who have been treated as full-time may no longer qualify if they took time off under the FMLA, for example. More importantly, other employees who were thought to be part-time, may have worked sufficient hours to become eligible for paid leave under the PMLA. So, run a report and make sure that you are applying the PMLA correctly as you head into 2020. Of course, this might all change when the Supreme Court rules!

PS, don’t forget that the Fair Labor Standards Act’s new regulations for the white collar exemptions take effect in a couple of weeks as well. So, in case you are wondering what you can do over the holidays, consider auditing your exempt employees’ salaries to ensure they can still be treated as exempt!

Yep, employment law – it’s the gift that keeps on giving!

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