American Society of Employers (ASE) looks at Supreme Court decision on same-sex marriage as it impacts Michigan employers

Livonia, Mich. —June 29, 2015 —Employers in Michigan and around the country have already begun reviewing their benefit offerings and internal policies to ensure that none of them exclude same-sex marriage partners or divorced partners. So said Mary E. Corrado, president and CEO of the American Society of Employers (ASE), one of the nation’s oldest and largest employer associations. Corrado’s comments came following the Supreme Court’s ruling on June 26 that same-sex couples have the fundamental right to marry, and any same-sex marriage must be recognized in all states.

“There are multiple employer practices that will be impacted by the Supreme Court’s decision,” said Corrado. “Examples include leave policies under the Family and Medical Leave Act (FMLA), dependent coverage in health insurance plans and survivor benefits under employer retirement plans.”

Corrado says the decision may provide administrative relief to employers who do business in multiple states, encompassing those states that already recognized same-sex marriages and those that did not. Further, employers who currently offer domestic partner benefits to unmarried same-sex and/or opposite-sex partners of their employees may choose to no longer offer such benefits. According to a benefits survey released by ASE earlier this month, more than 10% of survey respondents offered domestic partner benefits only to same-sex unmarried partners.

In a survey distributed by ASE this morning and completed by 60 member organizations (48% in manufacturing), 47% of respondents said they had policies that needed to be updated as a result of Friday’s Supreme Court ruling. The policies were largely related to health plans, FMLA, life insurance and retirement plans.

“Many Michigan employers are going to be very busy over the next several months as they re-write and introduce new policies and practices that adhere to the new same-sex marriage law,” Corrado said. “At the same time, many other employers who have been watching the trajectory regarding the same-sex marriage debate in Michigan have been anticipating this ruling and are well positioned to make a smooth transition.”

About the American Society of Employers (ASE) – a Centennial Organization
The American Society of Employers (ASE) is a not-for-profit trade association providing people-management information and services to Michigan employers. Since 1902, member organizations have relied on ASE to be their single, cost-effective source for information and support, helping to grow their bottom line by enhancing the effectiveness of their people. Learn more about ASE at www.aseonline.org.
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Brinks Gilson & Lione attorney reacts to Supreme Court ruling on Commil USA, LLC v Cisco Systems, Inc.

ANN ARBOR – On Tuesday, May 26, 2015, in Commil USA, LLC v. Cisco Systems, Inc. the Supreme Court overruled a prior ruling by the Court of Appeals for the Federal Circuit (CAFC) and held that a defendant’s belief regarding patent validity is not a defense to an induced infringement claim. Jon H. Beaupré, a shareholder in the Ann Arbor office of Brinks Gilson & Lione, one of the largest intellectual property law firms in the U.S., says this decision significantly changes the landscape of an inducement claim and was quoted as follows in the legal trade journal IP360.

“On one hand, the court eliminated an entire type of defense to inducement by holding that a defendant’s belief regarding patent validity is not a defense to induced infringement. On the other hand, the court also reaffirmed, and arguably bolstered, the knowledge requirement for induced infringement,” Beaupré said. “Taken together, defendants accused of inducing infringement should focus on establishing a good faith belief of noninfringement rather than invalidity. One possible way to support such a good faith belief is to obtain an opinion of counsel regarding noninfringement.”

Prior to the Supreme Court ruling, Cisco was found liable for both direct and induced infringement of Commil’s patent in two jury trials. On appeal to the CAFC, Cisco argued the lower court erred in not allowing evidence of Cisco’s good faith belief that the patent was invalid, because one cannot infringe an invalid patent. The CAFC agreed, holding that a good-faith belief in patent validity may prevent a finding that the alleged inducer had the requisite knowledge that the induced acts constitute patent infringement. The decision was appealed to the Supreme Court.

At Brinks, Beaupré specializes in patent, trademark, copyright, trade secret and unfair competition law in a broad range of technologies including mechanical engineering, medical devices, wireless technology, software technology, business methods and industrial mechanical devices. He also prepares and prosecutes patents, manages patent portfolios and counsels clients regarding various patent issues.

Beaupré’s litigation experience includes reexamination and Inter Partes review proceedings, trials, preliminary injunction hearings, Markman hearings, summary judgment proceedings, and all aspects of fact and expert witness discovery. He has represented clients before the USPTO, the International Trade Commission and the United States Court of Appeals for the Federal Circuit.

Brinks Gilson & Lione
The more than 135 attorneys, scientific advisors and patent agents at Brinks Gilson & Lione focus their practice in the field of intellectual property, making Brinks one of the largest intellectual property law firms in the U.S. Clients around the world use Brinks to help them protect and enforce their intellectual property rights. Brinks lawyers provide counseling in all aspects of patent, trademark, unfair competition, trade secret and copyright law. More information is available at www.brinksgilson.com.

This week’s U.S. Supreme Court decision on supervisors has far reaching implications for employers

“Act and educate, rather than celebrate”

Detroit, Michigan – June 28, 2013 –This week’s U.S. Supreme Court decision defining supervisors under Title VII as only those with the ability to take tangible actions against employees (Vance v. Ball State University) will have far ranging implications for employers, according to Patricia Nemeth, an attorney with Detroit-based employment law firm Nemeth Burwell, P.C. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.

“Employers will certainly be in a position to get many discrimination cases dismissed following this decision, but the new and narrowly defined definition of a supervisor requires employers to act and educate, rather than celebrate,” said Nemeth.

The first step employers need to take is to revisit job descriptions to verify they match actual job duties. Employees who have been acting as supervisors without the authority to hire, fire or take tangible employment actions with respect to other employees are not considered supervisors under the new ruling and should not be treated as such. Team leaders, for example, are popular positions in a variety of industries, but may have no true supervisory authority under the new Title VII definition. Employers need to be careful about how they treat team leaders, how they refer to them and how they train them. Another consideration is how employers classify employees as supervisory or non-supervisory for purposes of the National Labor Relations Act.

“The Supreme Court ruling impacted the definition of a supervisor under Title VII, not the National Labor Relations Act (NLRA), which covers private employers. Under the NLRA, supervisors cannot be unionized and are not entitled to the rights afforded to non-supervisors. Because the NLRA narrowly defines supervisors, more employees can be unionized,” said Nemeth. “From the perspective of an employer facing a union organizing drive, it is important to maximize the number of employees identified as supervisors so they cannot be unionized.

This is different from an employer’s goal in the Title VII context, where an employer may be trying to limit supervisory employees to limit potential automatic liability. Therefore, employers need to identify what their ultimate goals are and balance the interests involved when reviewing and redrafting job descriptions.”

Nemeth also noted the Court’s ruling did not automatically change the broad definition of a supervisor found in EEOC guidelines.

“It will be interesting to see how the EEOC responds to this ruling and also see if Congressional action is taken to overturn the Vance v. Ball State University decision,” said Nemeth.

Justice Ginsburg noted in her dissent that Congress may have to act to correct what she sees as the error made by the court. Currently, Title VII does not contain a definition for supervisor. As a result, it has been left to the courts to define the term. It remains to be seen whether Congress will now act to amend Title VII to expressly define who is a supervisor.

According to Nemeth, the ruling should help employers better understand the difference between a co-worker relationship and an employee/supervisor relationship. It should also help them properly identify who is or who is not a supervisor for purposes of Title VII.

“We receive questions from clients all the time about who is a supervisor and who is not. The definition is important for Title VII, for state law (the Elliott Larsen Civil Rights Act and common law) and for the NLRA,” said Nemeth.

Regardless of classification, employers need to have policies in place that clearly spell out the organization’s prohibition of any type of discrimination or harassment and also have an internal procedure in place so employees can notify employers of potential issues.
About Nemeth Burwell, P.C.: Nemeth Burwell specializes in employment litigation, traditional labor law and management consultation for private and public sector employers. It is the largest women-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.
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Political Action Committee Endorsements: 2012 Election

The Detroit Regional Chamber’s PAC Board has made the following candidate endorsements for the general election on November 6, 2012. For more information on the Chamber’s policy and legislation, visit the Vote4Biz – Advocacy page.

Michigan Supreme Court
2-Year Term: Justice Brian Zhara
8-Year Term: Justice Stephen Markman and Bridget Mary McCormack

Congress
District 2: Bill Huizenga (R-Zeeland)
District 4: Dave Camp (R-Midland)
District 5: Dan Kildee (D-Flint Twp.)
District 6: Fred Upton (R-St. Joseph)
District 9: Sander Levin (D-Royal Oak)
District 10: Candice Miller (R-Harrison Twp.)
District 12: John Dingell (D-Dearborn)
District 14: Gary Peters (D-Bloomfield Hills)

House of Representatives
District 6: Rashida Tlaib (D-Detroit)
District 7: Thomas Stallworth III (D-Detroit)
District 8: David Nathan (D-Detroit)
District 9: Harvey Santana (D-Detroit)
District 10: Phil Cavanagh (D-Redford Township)
District 11: David Knezek (D-Dearborn Heights)
District 12: Doug Geiss (D-Taylor)
District 13: Andrew Kandrevas (D-Southgate)
District 14: Paul Clemente (D-Lincoln Park)
District 15: George Darany (D-Dearborn)
District 16: Robert Kosowski (D-Westland)
District 17: Bill LaVoy (D-Monroe)
District 18: Sarah Roberts (D-St. Clair Shores)
District 19: John Walsh (R-Livonia)
District 20: Kurt Heise (R-Plymouth)
District 21: Dian Slavens (D-Canton)
District 22: Harold Haugh (D-Roseville)
District 23: Pat Somerville (R-New Boston)
District 24: Anthony Forlini (R-Harrison Township)
District 25: Sean Clark (R-Warren)
District 26: Jim Townsend (D-Royal Oak)
District 28: Jon Switalski (D-Warren)
District 29: Tim Greimel (D-Pontiac)
District 30: Jeff Farrington (R-Utica)
District 31: Marilyn Lane (D-Fraser)
District 33: Ken Goike (R-Ray)
District 34: Woodrow Stanley (D-Flint)
District 35: Rudy Hobbs (D-Southfield)
District 38: Hugh Crawford (R-Novi)
District 39: Klint Kesto (R-Walled Lake)
District 40: Michael McCready (R-Birmingham)
District 41: Martin Howrylak (R-Troy)
District 42: Bill Rogers (R-Brighton)
District 43: Gail Haines (R-Waterford)
District 44: Eileen Kowall (R-White Lake)
District 46: Bradford Jacobsen (R-Oxford)
District 49: Jim Ananich (D-Flint)
District 50: Charles Smiley (D-Burton)
District 51: Joseph Graves (R-Argentine Township)
District 52: Mark Ouimet (R-Scio Township)
District 53: Jeff Irwin (D-Ann Arbor)
District 54: David Rutledge (D-Ypsilanti)
District 55: Adam Zemke (D-Ann Arbor)
District 56: Dale Zorn (R-Ida)
District 57: Nancy Jenkins (R-Clayton)
District 59: Matt Lori (R-Constantine)
District 60: Sean McCann (D-Kalamazoo)
District 61: Margaret O’Brien (R-Portage)
District 62: Kate Segal (D-Battle Creek)
District 63: Jase Bolger (R-Marshall)
District 64: Earl Poleski (R-Jackson)
District 66: Aric Nesbitt (R-Lawton)
District 67: Tom Cochran (D-Mason)
District 68: Andy Schor (D-Lansing)
District 69: Sam Singh (D-East Lansing)
District 70: Rick Outman (R-Six Lakes)
District 71: Deb Shaughnessy (R-Charlotte)
District 73: Peter MacGregor (R-Rockford)
District 74: Rob VerHeulen (R-Westland)
District 75: Brandon Dillon (D-Grand Rapids)
District 77: Thomas Hooker (R-Byron Center)
District 78: Dave Pagel (R-Berrien Springs)
District 79: Al Pscholka (R-Stevensville)
District 81: Dan Lauwers (R-Brockway)
District 85: Ben Glarden (R-Owosso)
District 86: Lisa Posthumus Lyons (R-Alto)
District 87: Mike Callton (R-Nashville)
District 88: Roger Victory (R-Hudsonville)
District 89: Amanda Price (R-Park Township)
District 90: Joe Haveman (R-Holland)
District 93: Tom Leonard (R-DeWitt)
District 94: Tim Kelly (R-Saginaw)
District 98: Jim Stamas (R-Midland)
District 99: Kevin Cotter (R-Mt. Pleasant)
District 101: Ray Franz (R-Onekama)
District 103: Bruce Rendon (R-Lake City)
District 104: Wayne Schmidt (R-Traverse City)
District 106: Peter Pettalia (R-Presque Isle)
District 107: Frank Foster (R-Petoskey)
District 108: Ed McBroom (R-Vulcan)
District 110: Matt Huuki  (R-Atlantic Mine)

Detroit Regional Chamber’s Political Action Committee Announces Endorsements for the Michigan House, Supreme Court

DETROIT, September 20, 2012 – Today, the Detroit Regional Chamber’s Political Action Committee (PAC) announced endorsements for the Michigan House of Representatives and the Michigan Supreme Court for the general election. The Detroit Regional Chamber PAC Board of Directors regularly meets to identify and support pro-business candidates and policies that support the Chamber’s public policy priorities.

“The Chamber’s Political Action Committee selects the best candidates for elected offices who will help work toward creating good public policy that positions Michigan to prosper economically and moves our state forward,” said Brad Williams, the Chamber’s vice president of government relations. “With seats on the Michigan Supreme Court on the line, this election is critical to maintaining the momentum created by Governor Rick Snyder’s reforms. This year’s slate of endorsed candidates represents a talented and diverse cross-section of the state who will assist in continuing Michigan’s reinvention.”

The Chamber PAC Board of Directors made the endorsements based on responses to a Chamber PAC survey as well as input from PAC members and the Chamber’s government relations team. The Chamber’s top policy priorities include continued support of the New International Trade Crossing, repeal of the state’s personal property tax, implementation of a system of regional transit and increased investment in Michigan’s vital transportation system.

The Chamber-endorsed candidates are as follows:

Michigan Supreme Court:
2-Year Term: Justice Brian Zahra
8-Year Term: Justice Stephen Markman and Bridget Mary McCormack

Michigan House of Representatives:
District 6: Rashida Tlaib (D-Detroit)
District 7: Thomas Stallworth III (D-Detroit)
District 8: David Nathan (D-Detroit)
District 9:  Harvey Santana (D-Detroit)
District 10: Phil Cavanagh (D-Redford Township)
District 11: David Knezek (D-Dearborn Heights)
District 12: Doug Geiss (D-Taylor)
District 13: Andrew Kandrevas (D-Southgate)
District 14: Paul Clemente (D-Lincoln Park)
District 15: George Darany (D-Dearborn)
District 16: Robert Kosowski (D-Westland)
District 17:  Bill LaVoy (D-Monroe)
District 18:  Sarah Roberts (D-St. Clair Shores)
District 19: John Walsh (R-Livonia)
District 20: Kurt Heise (R-Plymouth)
District 21: Dian Slavens (D-Canton)
District 22: Harold Haugh (D-Roseville)
District 23: Pat Somerville (R-New Boston)
District 24: Anthony Forlini (R-Harrison Township)
District 25: Sean Clark (R-Warren)
District 26: Jim Townsend (D-Royal Oak)
District 28: Jon Switalski (D-Warren)
District 29: Tim Greimel (D-Pontiac)
District 30: Jeff Farrington (R-Utica)
District 31: Marilyn Lane (D-Fraser)
District 33: Ken Goike (R-Ray)
District 34: Woodrow Stanley (D-Flint)
District 35: Rudy Hobbs (D-Southfield)
District 38: Hugh Crawford (R-Novi)
District 39: Klint Kesto (R-Walled Lake)
District 40: Michael McCready (R-Birmingham)
District 41: Martin Howrylak (R-Troy)
District 42: Bill Rogers (R-Brighton)
District 43: Gail Haines (R-Waterford)
District 44: Eileen Kowall (R-White Lake)
District 46: Bradford Jacobsen (R-Oxford)
District 49: Jim Ananich (D-Flint)
District 50: Charles Smiley (D-Burton)
District 51: Joseph Graves (R-Argentine Township)
District 52: Mark Ouimet (R-Scio Township)
District 53: Jeff Irwin (D-Ann Arbor)
District 54: David Rutledge (D-Ypsilanti)
District 55: Adam Zemke (D-Ann Arbor)
District 56: Dale Zorn (R-Ida)
District 57: Nancy Jenkins (R-Clayton)
District 59: Matt Lori (R-Constantine)
District 60: Sean McCann (D-Kalamazoo)
District 61: Margaret O’Brien (R-Portage)
District 62: Kate Segal (D-Battle Creek)
District 63: Jase Bolger (R-Marshall)
District 64: Earl Poleski (R-Jackson)
District 66: Aric Nesbitt (R-Lawton)
District 67: Tom Cochran (D-Mason)
District 68: Andy Schor (D-Lansing)
District 69: Sam Singh (D-East Lansing)
District 70: Rick Outman (R-Six Lakes)
District 71: Deb Shaughnessy (R-Charlotte)
District 73: Peter MacGregor (R-Rockford)
District 74: Rob VerHeulen (R-Walker)
District 75: Brandon Dillon (D-Grand Rapids)
District 77: Thomas Hooker (R-Byron Center)
District 78:  Dave Pagel (R-Berrien Springs)
District 79: Al Pscholka (R-Stevensville)
District 81:  Dan Lauwers (R-Brockway)
District 85: Ben Glarden (R-Owosso)
District 86: Lisa Posthumus Lyons (R-Alto)
District 87: Mike Callton (R-Nashville)
District 88:  Roger Victory (R-Hudsonville)
District 89: Amanda Price (R-Park Township)
District 90: Joe Haveman (R-Holland)
District 93: Tom Leonard (R-Dewitt)
District 94: Tim Kelly (R-Saginaw)
District 98: Jim Stamas (R-Midland)
District 99: Kevin Cotter (R-Mt. Pleasant)
District 101: Ray Franz (R-Onekama)
District 103: Bruce Rendon (R-Lake City)
District 104: Wayne Schmidt (R-Traverse City)
District 106: Peter Pettalia (R-Presque Isle)
District 107: Frank Foster (R-Petoskey)
District 108: Ed McBroom (R-Vulcan)
District 110: Matt Huuki  (R-Atlantic Mine)

About the Detroit Regional Chamber
With over 20,000 members and affiliates, that employ over three-quarters of a million workers, the Detroit Regional Chamber is one of the largest chambers of commerce in the country. The Chamber’s mission is carried out through business attraction efforts, advocacy, strategic partnerships and providing valuable benefits to members. For more information, please visit detroitchamber.com.

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Supreme Court Upholds Health Care Law

What the Supreme Court Decision Means for You and for Michigan

In the wake of the Supreme Court’s  5 – 4 decision upholding  nearly all of the central features of the Patient
Protection and Affordable Care Act of 2010 (ACA), two elements stand out:

  • By construing the penalty for individuals who refuse to carry insurance coverage as a tax, Chief Justice John Roberts, who rendered the majority opinion, ruled that the individual mandate falls within Congress’ authority to levy taxes.
  • The Court also ruled that the federal government cannot require states to participate in the expansion of Medicaid by taking away funds from the existing Medicaid program. Many states are resisting the Medicaid expansion, a central objective of the legislation. Michigan is not among them.  Up to a half million citizens in Michigan will be eligible for Medicaid, in addition to the 1.9 million currently covered, and 90 percent of that newly expanded coverage will be paid by the federal government.


What It Means

The high court’s decision upholds the ACA as the law of the land. With the exception of the Medicaid opinion, the ruling upholds all of what has been done to date and what will be done through 2019 to implement the law. Significant parts of the implementation have already occurred, such as eliminating exclusions for pre-existing conditions, preventing medical underwriting, limiting insurers’ administrative costs, covering young people up to age 26, and offering subsidies to individuals and small employers to opt for insurance. Most of the remaining key provisions of the ACA will continue to unfold through 2014 – and most of those by January 1, 2014 – when employers of 50 or more will be required to offer credible coverage or pay penalties, and when individuals will also be required to carry coverage.

In Michigan, steps to create a Health Insurance Exchange for smaller businesses and individuals were put aside by the House of Representatives until the high court rendered its decision. Now, the state must move quickly to create its own exchange, or be covered by an exchange to be created by the federal government.  Within the exchange, the designation of what benefits are essential in an insurance product will be a key decision that will affect the cost of the products approved for listing on the exchange. The federal government has issued guidelines, but a lot of interpretation has been left to the states.  For their part, businesses will have to decide 1) whether to offer coverage to employees and 2) whether to use products in the exchange. In part, those decisions may reflect their interest in going beyond exchange benchmarks to compete for talent and to develop a more healthy, more productive team to improve their competitive position.

What the Future Holds

The court’s decision will not end the controversy surrounding ACA, where polls show a divided nation.  Nor will it resolve the nation’s health care ills. Cost and quality issues will persist, combined with an increasingly older population with growing chronic care needs. But it does provide a public policy road map for the next seven years, and it will certainly be tweaked from time to time by Congress. Over the next several months, Republicans will continue to challenge the law on the campaign trail. The November election will be the next major referendum, and the composition of the Executive Branch and Congress will determine the future of the ACA.  As things stand today, there are not sufficient votes in Congress to overturn the ACA. Whatever the outcome, expect the transformation of health care to continue and to accelerate – through private sector initiatives as well as public – simply because the size and costs of health care are far too big for anyone to ignore.

Where the Chamber Stands

The Detroit Regional Chamber has not taken a position on the Affordable Care Act. The Chamber, along with most of the business community, opposed the creation of a “public option” during the early discussion of the legislation. Once this provision was dropped, the Chamber assumed a neutral position. The Chamber has members that are strongly supportive of, strongly opposed to, and uncertain of, the ACA.

The Chamber is concerned about the rising cost of health care and its impact on the ability of businesses (especially small businesses) to thrive, grow the economy and create needed jobs.  The status quo is not acceptable as high costs and the uncertainty around health care legislation is contributing to a sluggish economic recovery. The Chamber respects the process the ACA went through.  It was legislation passed by Congress, signed by the President, challenged in court, and now the U.S. Supreme Court has settled that challenge. Now our attention must turn to how this law gets implemented.

The Chamber supports Governor Rick Snyder’s efforts to create a health care exchange in Michigan, as required by the recently upheld law, that will use market forces to allow greater access and lower health insurance costs to businesses and individuals.