Julie A. Gafkay, Author at Saginaw Daily

Governor signs bills to repeal ‘Right to Work’ and reinstate prevailing wages

Julie A. Gafkay — Sun, 26 Mar 2023 16:01:40 +0000

On March 24, Gov. Gretchen Whitmer signed into law Public Acts 8 and 9 (2023). These two bills repeal right-to-work laws passed in 2013, restoring the rights of workers in Michigan. The legislation eliminates language in the law that allowed workers to receive the benefits of a collective bargaining agreement without having to pay union dues. Under the new legislation, both public and private employers can require employees to pay union dues as a condition of employment.

Public Act 8 relates to private employees and Public Act 9 relates to public employees. Public Act 9 only becomes effective upon the ratification of a constitutional amendment or “a decision or ruling by the United States Supreme Court that reverses or limits, in whole or in part, Janus v AFSCME.” Until then, public employees will still be able to choose not to be become members of the union and pay dues, while continuing to enjoy pay and benefits under the union contract.

In addition to the repeal of “right to work” laws, on March 24 the governor also signed into law a bill reinstating prevailing wages for state-funded construction. In 2018, Michigan repealed its prevailing wage law. Now that it has been reinstated, a commissioner with the Department of Labor and Economic Opportunity will establish prevailing wages and fringe benefits for state construction projects, and a schedule of these rates will be part of the specifications for the work performed. In March of 2022, the State of Michigan began requiring all state contractors to pay prevailing wages on construction-based contracts issued by the Department of Technology, Management & Budget. The new law expanded the prevailing wage for any state construction project which includes:

Public buildings
Schools
Bridges
Highways
Roads

The new legislation repealing “right to work” laws and reinstating prevailing wages in Michigan is a historic win for labor unions and workers. Labor unions are hoping other states will follow.

Julie A. Gafkay is a civil rights attorney with an office in Saginaw for the past 20 years. She attained her law degree from Whittier Law School in 1995 and her undergraduate degree from James Madison College at Michigan State University in 1992. She is a past president of the Saginaw County Bar and Women Lawyers Association of Michigan. In 2019, she was awarded the Champion of Justice award from the State Bar of Michigan.

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Bill expands LGBTQ+ state civil rights protections

Julie A. Gafkay — Sat, 11 Mar 2023 21:02:03 +0000

This past week, the Michigan House lawmakers voted in favor of expanding protections under the Michigan Elliott-Larsen Civil Rights Act (Civil Rights Act) to include sexual orientation and gender identity. Gov. Gretchen Whitmer’s signature is expected. Under the current law passed in 1976, the Civil Rights Act includes the following protections:

Religion
Race and Color
National Origin
Age
Sex
Height
Weight
Familial status
Marital status

If the Governor signs the bill, as expected, the protections will include sexual orientation, gender identity or expression. Under the bill, “gender identify or expression” means having or being perceived as having a gender-related self-identify or expression whether or not associated with an individual’s assigned sex at birth.

The Civil Rights Act protects individuals with regard to employment, in public accommodations (such as businesses and transportation), educational institutions, and housing. The Civil Rights Act also protects individuals from retaliation.

On July 28, 2022, the Michigan Supreme Court found that sexual orientation is protected under the Civil Rights Act in Rouch World, LLC v Dep’t of Civil Rights. The case involved a same-sex couple that was denied a request to host their wedding at a facility. The Court held discrimination based on sexual orientation constitutes discrimination because of sex. The bill provides further guarantees that individuals in Michigan will be protected from discrimination based on sexual orientation or gender identity.

The expansion under the Civil Rights Act to include sexual orientation and gender identify will provide needed protections to a historically marginalized group of individuals who deserve to be treated equitably and with decency. It is a victory for all in Michigan when individuals are provided equal opportunities in this state.

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Noncompete agreements in employment may be banned

Julie A. Gafkay — Fri, 24 Feb 2023 22:28:28 +0000

Currently, noncompete agreements are generally enforceable in Michigan. Noncompete agreements are contractual agreements that limit an employee’s ability to work for a competing company after leaving his or her current employer. In Michigan, these types of agreements are common, particularly in industries such as technology, healthcare, and manufacturing.

In Michigan, noncompete agreements are subject to certain restrictions. For example, to be enforceable, agreements must be:

reasonable in the length of time an employee cannot compete
reasonable in the limitation on an employee from competing
there must be a legitimate business interest (such as protecting trade secrets or preventing unfair competition)

If a Court finds that a noncompete is unreasonable or not supported by legitimate business interest, it may refuse to enforce the agreement.

Noncompete agreements are disfavored because they limit workers’ ability to find new employment. The Federal Trade Commission (“FTC”) has estimated that the banning of noncompete agreements could increase wages by $300 billion and expand career opportunities for about 30 million Americans. On January 5, 2023, the FTC proposed a new rule that would ban employers from imposing noncompete agreements on their workers.

The FTC’s proposed rule would generally prohibit employers from using noncompete clauses. Specifically, the FTC’s new rule would make it illegal for an employer to:

enter into or attempt to enter into a noncompete with a worker;
maintain a noncompete with a worker; or
represent to a worker, under certain circumstances, that the worker is subject to a noncompete.

The proposed rule would apply to independent contractors and anyone who works for an employer, whether paid or unpaid. It would also require employers to rescind existing noncompete agreements and actively inform workers that they are no longer in effect.

The FTC is accepting comments from the public on the new rule until March 30, 2023. After that, the FTC should be issuing a final rule likely banning noncompete agreements.

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