During the last month of 2019, Michigan Attorney General Dana Nessel joined attorneys general from across the nation in the following multi-state actions:
Negative Option Marketing Schemes: Comment Letter
On Dec. 2, 2019, Nessel joined 22 other attorneys general in urging the Federal Trade Commission (FTC) to adopt regulations to prevent consumers from being deceived by negative option marketing schemes – a practice where marketers present consumers with an offer and the consumers’ silence or failure to take action in response is deemed an acceptance of the offer.
“Counting on consumers to pay for recurring charges they did not knowingly sign up for is deceptive and invasive,” said Nessel. “I joined my colleagues in submitting this comment letter because we must always protect our residents from the constant traps laid to get their hard-earned money.”
One especially problematic type of negative option offer involves a so-called “free” trial. Consumers are offered a free trial period for a product or service and must submit their billing information to receive the promotion. However, the free trial has additional terms, which are not clearly disclosed, stating that unless consumers cancel the goods or services, they are agreeing to continue to receive and pay for them.
The attorneys general recommend in their letter that the FTC expand its regulations to achieve the following:
• Informed Consent – In addition to consenting to any trial offer, sellers should have to obtain a separate consent to charge for goods or services after the trial period has ended.
• Periodic Notices – Sellers should be required to send regular notifications that consumers are enrolled in a negative option plan, disclose the timing, amount, and method by which the seller bills the consumers for the renewal, and provide a convenient method to cancel the goods or services.
• Define Simple Cancellation Processes – Consumers should be allowed to cancel their memberships by the same method as enrollment.
• Refunds – Consumers who are unwittingly enrolled in negative option plans should be entitled to a refund from the date of enrollment.
80/20 Rule: Comment Letter
Nessel joined 18 other attorneys general on Dec. 9, 2019 to oppose the U.S. Department of Labor’s (DOL) proposed elimination of the “80/20 Rule” which has protected tipped workers for decades. The rule ensures that any worker being paid $3.67 per hour in Michigan—due to their employer utilizing the “tip credit”—spends at least 80 percent of their work time doing tipped work.
Under the DOL’s proposal, eliminating the “80/20 Rule” would allow employers to assign unlimited amounts of non-tipped work – such as cleaning, cooking and other “back of the house” tasks – while still taking a tip credit and paying workers a lower wage.
“The proposal to eliminate the 80/20 Rule would raid the pockets of at least 100,000 service workers in Michigan like waiters, waitresses and bartenders who rely on tips to provide for their families,” said Nessel. “These individuals could be forced to spend significantly more than 20% of their time performing duties that do not generate tips while still being paid below minimum wage for those services. Not only would eliminating this rule negatively impact low-income workers, it would also put a strain on assistance programs provided by the state.”
In their letter, the attorneys general argue the proposed rule would further erode the already low wages of tipped workers and leave them more vulnerable to wage theft.
The coalition also insists that the proposal is contrary to the purpose of the Fair Labor Standards Act – to protect workers – and that the DOL did not abide by the requirements of the Administrative Procedure Act when it failed to examine the proposal’s impact on wages and increased reliance on social safety net programs.
Indian Child Welfare Act: Amicus Brief
On Dec. 13, 2019, Nessel and 26 other attorneys general defended the Indian Child Welfare Act (ICWA) and called for it to be upheld by filing an amicus brief in Brackeen v. Bernhardt before the full U.S. Fifth Circuit Court of Appeals.
Michigan is home to approximately 200,000 Indian persons/Native Americans and 12 federally recognized tribes. Collectively, the states that make up the bipartisan coalition are home to more than 90 percent of federally recognized tribes in the United States and nearly 70 percent of the overall American Indian and Alaska Native population.
First enacted in 1978, the Indian Child Welfare Act was a response to a history of culturally insensitive and ignorant removal of Native American children from their birth families, which also removed them from their tribes and their heritage. ICWA’s purpose is to “protect the best interests of Indian children and promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards” used in child welfare proceedings involving Native American children.
“All children in this nation deserve life decisions that are made with compassion and consideration for their heritage,” said Nessel. “For the last 41 years, the best interests of Native American children and the preservation of their connections to their heritage have been a priority during placement proceedings. To ensure that this consideration in the decision-making process continues, I have joined my colleagues in filing this brief.”
To further combat a threat to the very existence of Indian culture, in 2012 Michigan passed its own enhanced version of ICWA – the Michigan Indian Family Preservation Act (MIFPA) – that mirrors and strengthens the ICWA’s protections.
Asylum Cooperative Agreements: Comment Letter
Nessel joined 19 other attorneys general to protect the rights of asylum-seekers on Dec. 19, 2019. Under a new interim final rule, the Trump Administration is effectively attempting to ignore asylum claims by sending people – many of whom are fleeing violence and persecution – to a different country that has signed asylum cooperative agreements with the federal government. The rule, which went into immediate effect, will block states from welcoming asylum-seekers who make significant cultural and economic contributions to communities across the country and threatens to tear families apart.
Currently, Guatemala is the only country where an asylum cooperative agreement (an arrangement formed between the U.S. and foreign countries where aliens removed to those countries would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection) is officially in effect and the federal government has already announced agreements with El Salvador and Honduras.
As the attorneys general note in their letter, Guatemala, El Salvador and Honduras – also known as the Northern Triangle – are among the most dangerous countries in the world ranking first, fifth and sixth for top homicide rates globally.
Furthermore, Guatemala only has 12 officials working on asylum cases in the entire country, and only three of them are tasked with interviewing applicants. Furthermore, the rule has no requirement that families who arrived together in the U.S. be removed to the same country, raising the specter of additional trauma that could have significant health consequences for families and children.
“This interim final rule ignores the vital economic contributions of immigrants throughout our state and this country and blatantly disregards the fact that asylum-seekers are already seeking protection from dangerous circumstances,” said Nessel. “Forcing them into countries with some of the highest homicide rates in the world and providing no safeguards against family separation is not only counterproductive but pushes asylum-seekers further into the danger they’ve fought so hard to flee.”
Temporary Protected Status (TPS) for Haitian Nationals: Amicus Brief
On Dec. 30, 2019, Nessel joined 20 of her colleagues to challenge the Trump Administration’s effort to revoke Temporary Protected Status (TPS) for Haitian nationals. This action would cause Haitian TPS holders across the nation to lose their legal status, leaving them vulnerable to deportation.
In an amicus brief filed in Saget v. Trump before the United States Court of Appeals for the Second Circuit, the coalition argues that the administration lacked a reasonable rationale for the move, violating the Administrative Procedure Act (APA). The brief urges the Court of Appeals to affirm the lower court’s ruling and uphold a nationwide injunction against the termination to prevent widespread harm in the states named in the brief.
“Haiti first received TPS designation following a devastating earthquake 10 years ago that left the country and its residents vulnerable,” said Nessel. “The federal government’s actions are arbitrary, capricious and an abuse of discretion and we as attorneys general have an obligation to hold them accountable.”
In the brief, the attorneys general argue the harms that the states will suffer if this TPS is terminated would include separating families, harming the states economically in the workforce, increase healthcare costs, and public safety.
According to a July 2018 report from the U.S. Citizenship and Immigration Service, Michigan is home to more than 1,500 individuals with Temporary Protected Status from the following countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, Syria, and Yemen.
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