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James Hermon

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Jim Hermon is the Leader of Dykema's Labor and Employment Practice Group. He provides full-circle employment counsel, helping clients manage employer-employee relationships at all levels and meet their state and federal regulatory and statutory obligations. Jim advises on all aspects of the workplace, from onboarding and handbooks to internal investigations and litigation, to exits and severance agreements, always with an eye on the client’s business objectives.

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The Sixth Circuit’s recent decision in Bruce v. Adams & Reese, LLP (No. 25-5210) provides critical guidance on the application of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA). This case clarifies the pleading standards for hostile work environment claims under Title VII, but also, and more importantly, establishes a significant precedent regarding the scope of the EFAA’s arbitration bar.Continue Reading Understanding the Sixth Circuit’s Decision in Bruce v. Adams & Reese, LLP: A Landmark Interpretation of the EFAA

Takeaways

  • The National Labor Relations Board has reinstated its 2020 joint employer standard, requiring substantial direct and immediate control over essential terms and conditions of employment to establish joint employer status.
  • The U.S. Department of Labor has proposed rescinding its 2024 independent contractor rule and returning to a Trump-era “economic reality” framework.
  • Employers should proactively reassess joint employer relationships and independent contractor classifications in light of these regulatory shifts and the DOL’s anticipated final rule later this spring.

NLRB Returns to 2020 Joint Employer Status Test

On February 26, 2026, the National Labor Relations Board announced a return to the joint employer status test in effect during President Trump’s first administration. The final rule replaces a 2023 Biden-era test that was vacated by an order from the United States District Court for the Eastern District of Texas on March 8, 2024. The Board explained that its final rule replaces the vacated regulatory text with the previous version of its rules that remain in effect after the Texas Order.Continue Reading Flip-Flop: Feds Announce a Final Rule on Joint Employer Status and a Proposed Rule on Independent Contractor Status

Takeaways

  • Employers that include unambiguous contractual language regarding integration and modification in employment agreements must ensure that the agreement contains all relevant terms and conditions of employment.
  • Careless drafting or inconsistent onboarding documents can eliminate otherwise enforceable employer protections.

The Michigan Court of Appeals recently provided employers with an important reminder about the interplay between employment applications and employment agreements in Mayberry v. Acrisure Wallstreet Partners, LLC. In that case, the Plaintiff signed both an employment application and a separate employment agreement at the time he was hired. The application included a shortened limitations period that required her to bring any claim against the Company within six months of the events underlying the claim. The employment agreement, signed later in the day, contained no such shortened limitations period.Continue Reading Michigan Court of Appeals Reminds Employers of the Importance of Carefully Drafting Employment Agreements and Onboarding Documents

Takeaways

  • The FTC’s withdrawal of its broad non-compete ban does not signal a retreat from enforcement—in fact, the agency is sharpening its focus.
  • Recent FTC actions show a clear shift toward targeted, case-by-case challenges to non-compete agreements deemed unfair or overbroad.
  • A new FTC complaint highlights the agency’s concern with blanket non-competes applied without regard to job role or responsibility.

It would not be unreasonable to question the future of FTC enforcement against non-compete agreements after the FTC abandoned the prior administration’s rule banning nearly all employee non-compete agreements.[1] But the FTC has signaled its intent to continue enforcement against those non-compete agreements that unreasonably restrain employment options in a more targeted, case-by-case manner under Section 5 of the FTC Act (15 U.S.C. § 45).Continue Reading FTC Signals Continued Scrutiny of Employee Non-Compete Agreements

Takeaways

  • The U.S. Supreme Court rejected a heightened standard for reverse discrimination claims under Title VII.
  • This decision, combined with Muldrow, lowers the bar for employees to bring discrimination lawsuits.

On June 5, 2025, the U.S. Supreme Court (“SCOTUS”) issued a unanimous decision in Ames v. Ohio Department of Youth Services, which rejected a heightened standard for pursuing reverse discrimination claims under Title VII. Ames filed a lawsuit under Title VII alleging that she was discriminated against for being heterosexual when she was denied a promotion and then demoted in favor of homosexual coworkers. Ames applied for a newly created and open position within the Ohio Department of Your Services (“ODYS”). Not only did Ames not receive the job, she was subsequently demoted to her prior position with a reduced salary. The ODYS hired a lesbian woman for the position Ames sought. It then hired a gay man to replace Ames in her program leadership position after she had been demoted.Continue Reading Reverse Discrimination Claims Are Easier To Pursue After SCOTUS Decision

In an 11th-hour compromise late on February 20th, the Michigan Legislature passed an amendment to the Earned Sick Time Act that was scheduled to go into effect on February 21st. The amendatory act addresses many of the provisions of the ESTA that employers found most onerous while keeping in place the basic contours of the original law. Among the changes:Continue Reading Michigan’s Last-Minute Sick Leave Overhaul: Key Changes Employers Need to Know

Mothering Justice Decision

On July 31, 2024, the Michigan Supreme Court decided Mothering Justice et al. v. Attorney General et al. In that case, the Court reinstated two laws, the Earned Sick Time Act and the Improved Workforce Opportunity Wage Act, that appeared on the Michigan state ballot in September 2018. After having been voted upon, the Michigan legislature amended both laws. In Mothering Justice, the Court found this amendment process to be unlawful and reinstated both laws as drafted in 2018, effective on February 21, 2025. Each has major implications for Michigan employers, as explained below:Continue Reading 2025 Michigan Labor and Employment Legal Updates

Earlier today, the United States District Court for the Eastern District of Texas granted summary judgment in favor of the state of Texas and a coalition of business organizations, striking down the Department of Labor’s regulations mandating significant increases to the salary basis for white-collar employees. As a result, the increases in salary implemented last July, as well as the increase that was to go into effect on January 1, have been nullified.Continue Reading Overtime Exemption Rules Requiring Salary Increases for White-Collar Employees Vacated By Texas Court

Yesterday, a federal court in Texas issued a nationwide injunction preventing the Federal Trade Commission’s rule banning nearly all employee non-compete agreements from taking effect on September 4, 2024. The case, Ryan LLC et al. v. Federal Trade Commission, Case No. 3:24-cv-00986 (N.D. Tex.), was brought by a Texas tax preparation company and the U.S. Chamber of Commerce. This ruling was widely expected because the court issued an order in July 2024 that blocked the FTC from applying the rule as to the plaintiff, but signaled that it would decide whether to issue a broader injunction before the FTC rule took effect. It followed through, and you can read the court’s opinion here.Continue Reading Federal Court Blocks FTC Rule Banning Employee Non-Competes

On Wednesday, July 31, 2024, the Michigan Supreme Court handed down its opinion in Mothering Justice et al. v. Attorney General et al. In this case, community organizations challenged the State Attorney General’s determination that the Michigan Legislature could adopt a citizen initiative ballot proposal and later amend it in the same legislative session. The two laws at issue, the Improved Workforce Opportunity Wage Act (the Wage Act) and the Earned Sick Time Act (the ESTA), were contained in ballot initiatives which were adopted by the Michigan Legislature in September of 2018. The Legislature’s adoption precluded the initiatives from appearing on the November 2018 ballot. The following December, however, the Legislature significantly amended the adopted proposals, including extending the time a new state minimum wage requirement would increase to $12 per hour and reinstating the tip credit at 38 percent of the regular minimum wage.Continue Reading Employers Take Note: Michigan Supreme Court Imposes a February 2025 Deadline to Drastically Overhaul Key Employment Policies Statewide