Tuesday, June 27, 2017

EMPLOYMENT LAW QUARTERLY | Volume XIX, Issue i

Download PDF




Akron United: The Rubber City Passes New Law to Combat Discrimination

By Emilie M. Carver*

On March 20, 2017, the City of Akron joined a growing list of Ohio cities with non-discrimination ordinances when Mayor Dan Horrigan signed Ordinance Number 82-2017 into law. The new law protects Akron residents and visitors against discrimination in employment, housing, and public accommodations, and creates the Akron Civil Rights Commission to hear complaints and enforce the new law. The Mayor and City Council “wish to affirm the dignity and worth of all people and provide certainty to the residents and visitors of Akron that unlawful discrimination will not be tolerated in this City.”

The new ordinance is structured similarly to Ohio’s statewide anti-discrimination law, but includes protected classes not covered by state (or federal) law. Akron’s ordinance, like Ohio law, prohibits discrimination based on a person’s age, race, color, religion, national origin, ancestry, disability, sex, and military status, but adds protections for creed, marital status, familial status, gender identity or expression, and sexual orientation. Akron’s law follows the trend set by Cincinnati, Cleveland, Columbus, Dayton, Toledo, and Youngstown, among other Ohio cities.

With respect to employment discrimination, Akron’s law applies to employers that regularly employ four or more individuals. Similar to Ohio law, Akron’s law also applies to “any person acting on behalf of an employer, directly or indirectly.” Attorneys representing employees may argue the law provides for individual supervisor liability.

The ordinance also establishes the Akron Civil Rights Commission, whose five members will be appointed by the Mayor and confirmed by the Akron City Council. The Commission will “aim to include a diverse set of members from classes of individuals protected from discrimination” by the new ordinance. Commission members must be residents of the City of Akron.

The Akron Civil Rights Commission will hear and investigate complaints brought by individuals who believe they have been discriminated against. A party must file a complaint with the Akron Civil Rights Commission within one year of the alleged discriminatory practice. The new ordinance does not limit the right to file complaints with other agencies, including the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission. Notably, the Akron Civil Rights Commission is empowered to order some substantial remedies for discrimination: hiring, reinstatement, upgrading or promotion; back pay; compliance reporting; notice posting; damages for injury, humiliation, and embarrassment; costs; attorney fees; and civil penalties to the Akron Civil Rights Commission of up to $1,000.00 for each violation.

*Emilie M. Carver practices in all areas of employment and labor law. If you have questions regarding Akron’s new non‑discrimination ordinance, please contact Emilie (emc@zrlaw.com) at (216) 696-4441.




The Saga Continues: Sixth Circuit Rules Employment-Related Class Action Waivers In Arbitration Agreements Are Unenforceable

By Helena Oroz*

The U.S. Court of Appeals for the Sixth Circuit recently issued a much-anticipated decision that cracked the current class action waiver circuit court split even wider. In NLRB v. Alternative Entertainment, Inc., the Sixth Circuit held that an arbitration provision requiring employees to arbitrate individually all employment-related claims is unenforceable because it violates the National Labor Relations Act’s (“NLRA”) guaranteed right to collective action. 858 F. 3d 393 (6th Cir. 2017).

The case began, as so many do, with an employee’s termination. A field technician for Alternative Entertainment, Inc. (“AEI”) voiced his concerns about AEI’s changes to its compensation structure to coworkers, a manager, AEI’s Chief Financial Officer, and even the company’s president, repeatedly referring to technicians collectively. Two days after the employee spoke with the CFO and emailed the president, the company terminated his employment because the “relationship [was] not working out.”

The employee filed charges with the National Labor Relations Board (“NLRB”). An Administrative Law Judge determined that the company violated the NLRA, and the NLRB adopted that decision and filed an application to enforce the order. And that, in short, is how an employee literally makes a federal case out of discontent with compensation practices.

Specifically at issue in the case was AEI’s “Open Door Policy and Arbitration Program.” AEI’s arbitration program required employees to resolve employment-related disputes exclusively through binding arbitration. The company’s arbitration agreement contained a provision stating that the parties agreed that “a claim may not be arbitrated as a class action…and that a claim may not otherwise be consolidated or joined with the claims of others.” The NLRB concluded that this provision violated the NLRA because it prevented employees from taking any concerted legal action.

In reviewing the NLRB’s decision, the Sixth Circuit considered the compatibility of the Federal Arbitration Act (“FAA”), which governs the enforceability of arbitration agreements, and the NLRA, which protects the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” commonly referred to as “Section 7 rights.” The Court determined that the statutes do not conflict because of the FAA’s savings clause. The FAA’s savings clause provides that arbitration agreements are as enforceable as other contracts, but likewise are not any more enforceable than any other contracts “at law or in equity.” In other words, the Court reasoned that the FAA’s savings clause does not require enforcement of any arbitration agreement with illegal provisions. In this case, the arbitration agreement at issue included provisions that prohibited collective and class action suits – illegal under the NLRA as interfering with employees’ Section 7 rights.

In so holding, the Sixth Circuit agreed with the Seventh and Ninth Circuits’ previous holdings on the issue and completely disagreed with the Fifth Circuit’s previous holdings that arbitration provisions mandating individual arbitration of employment-related claims are enforceable. Now it is up to the U.S. Supreme Court to decide how the saga ends. Before the Sixth Circuit even had issued this decision, the Supreme Court had already granted writs of certiorari this past January in Morris v. Ernst & Young, LLP (9th Circuit, 2016), Lewis v. Epic Systems Corp. (7th Circuit, 2016), and Murphy Oil USA, Inc. v. NLRB (5th Circuit, 2015) and consolidated the three cases. The consolidated cases are currently in the briefing stage, so it remains unclear when the Supreme Court will actually issue a decision to resolve this ongoing circuit split.

In the meantime, if you are an employer with an arbitration program, keep tabs on these developments – and perhaps prepare for a change to your program pending the Supreme Court’s decision. Another take away, beyond the immediate scope of this article? Don’t rush to terminate an employee you find annoying because he or she is complaining about compensation changes or other terms and conditions of employment something, especially on behalf of a group. It’s a good way to start the NLRB ball rolling and end up in federal court.

*Helena Oroz, an OSBA Certified Specialist in Labor and Employment Law, is is a member of the firm’s Labor and Employment Groups and has extensive experience with arbitration agreements. If you have questions regarding your arbitration program, contact Helena at hot@zrlaw.com or (216) 696-4441.




More Data, More Problems? EEO-1 Now Requires Reporting of Summary Pay and Hours Worked Data

By Lisa A. Kainec*

If you thought the Equal Employment Opportunity Commission ("EEOC") was all up in your business before, 2017 won’t bring you any relief. Beginning with 2017 data, the EEOC has created additional reporting requirements for employers required to submit an Employer Information Report, or EEO-1.

Specifically, certain employers must now submit summary pay and hours worked data for their workforce. Starting with the 2017 report, due March 31, 2018:
  • Private employers and federal contractors/subcontractors with 100 or more employees will submit summary pay data.
  • Federal contractors/subcontractors with 50 to 99 employees will continue to report the same job category and demographic data as required in previous years (no summary pay data).
  • Private employers with 99 or fewer employees and federal contractors/subcontractors with 49 or fewer employees are not required to submit an EEO-1 report.

Until now, the EEO-1 required all reporting employers to categorize employees by job and demographics. Employers first categorize their employees into ten job categories, which remain the same (Executive/Senior Level Officials and Managers; First/Mid-Level Officials and Managers; Professionals; Technicians; Sales Workers; Administrative Support Workers; Craft Workers; Operatives; Laborers and Helpers; and Service Workers). Next, employers report the number of employees within each job classification by sex and ethnicity or race (White; Black or African American; Native Hawaiian or Pacific Islander; Asian; Native American or Alaska Native; or Two or More Races).

Now, applicable employers also must report summary pay data. The revised EEO-1 contains twelve pay bands into which the employer must categorize employees. Employers should pull employee pay data from Box 1 of employee Forms W-2 to prepare the revised EEO-1 but should not report individual pay or salaries. Instead, employers will mark the number of employees in a pay band that fall within a particular job category and demographic. For example, an employer may report five Native Hawaiian men in pay band 10 ($128,960 - $163,799) in the Executive/Senior Level Officials and Managers job category. See the new EEO-1 here: https://www.eeoc.gov/employers/eeo1survey/2016_new_survey_2.cfm.

In addition, applicable large employers must count and report hours worked for employees. Employers will report the total number of hours worked for all employees in a particular pay band and may count hours based on records required under the Fair Labor Standards Act (“FLSA”). For FLSA non-exempt employees, employers should report based on the hours those employees worked. For FLSA exempt employees, employers may: 1) report 20 hours per week for each part-time employee and 40 hours per week for each full-time employee; or 2) report the actual number of hours worked by each exempt employee. For example, four employees in a particular ethnicity and pay band (e.g., Black/African American in pay band 11) could work the following hours: 2,080; 2,500; 1,660; and 1,040. In that case, the employer would report 7,280 hours worked in the year in the Black/African American and pay band 11 column/row. See this portion of the new EEO-1 here: https://www.eeoc.gov/employers/eeo1survey/2016_new_survey_3.cfm.

Since applicable employers now must submit cumulative information for a given year (e.g., hours worked), the EEOC also changed the reporting deadline. Previously, the EEOC required employers to submit their EEO-1 report by September 30th in a given year. Now, the deadline is March 31st. Therefore, applicable employers must submit the next EEO-1 report, which reflects 2017 data, by March 31, 2018 (and will submit 2018 data by March 31, 2019, etc.).

The EEOC also modified the “workforce snapshot period” – the three-month window during which employers choose one pay period to identify and count employees for EEO-1 reporting purposes. Previously, the “workforce snapshot period” was July 1 to September 30. Under the revised EEO-1 report, that “workforce snapshot period” is from October 1 to December 31. Once the employer identifies the individuals on which it will report, it reports their information, including summary pay and hours worked data, for the calendar year.

While employers have some time to adjust to the new reporting requirements, they should begin developing and identifying processes for gathering the newly required data now.

*Lisa A. Kainec, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of employment and labor law. If you have questions about the EEO-1 or its new reporting requirements, contact Lisa (lak@zrlaw.com) at 216.696.4441.




Top Five Handbook Policies for Employers to Review in 2017

By Brad E. Bennett*

Federal and state legal developments over the past couple of years have brought changes that impact workplace policies and procedures. While President Trump has indicated that federal employment regulations will be pulled back under his administration, employers should make sure their handbooks are up to date in order to comply with current federal and state laws. Here are five policy provisions to review based upon federal and state developments over the past couple years.

1. Whistleblower Provisions

Employers should make sure their handbook provisions do not inadvertently discourage employees from reporting potential legal violations to the employer or to government agencies. The Equal Employment Opportunity Commission (“EEOC”) has been targeting any policy that may be interpreted as curbing an employee's right to go to the EEOC—or any other agency—to report violations of the law. Reviewing language throughout a handbook in order to address this issue is encouraged. Further, ensuring that a strong anti-retaliation policy or provision is contained in the handbook will prove to be invaluable.

2. Background Checks

Public employers also should take a close look at their background check policies and procedures to make sure they align with Ohio’s “ban-the-box” law that went into effect in March of 2016. The law prohibits Ohio public employers from asking about criminal convictions in the initial application.

The EEOC also has previously issued an Enforcement Guidance regarding the use of criminal background checks in employment. The EEOC Guidance, which is applicable to both public and private sector employers, should also be taken into consideration when revising background check policies and procedures. The EEOC Guidance states that policies which exclude applicants with any criminal conviction from employment are considered discriminatory. Instead, the EEOC requires employers to determine whether specific criminal conviction exclusions are “job related and consistent with business necessity.” To make such a determination, the EEOC utilizes a three-factor test utilized by the Eighth Circuit Court of Appeals in Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975) (the "Green factors"). Based upon the Green factors, the EEOC will review whether the employer considered the following in denying employment based upon a criminal conviction:
  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

Therefore, employers are encouraged to review their background check policy and procedure in light of Ohio’s “ban-the-box” law and the EEOC Guidance.

3. Drug Testing Policies

As of September 2016, medical marijuana is legal in Ohio. However, nothing in the new law interferes with an employer’s right to prohibit the use, possession or distribution of marijuana in the workplace. Because marijuana is still listed on Schedule I of the Federal Controlled Substance Act, it is also still illegal under federal law. Therefore, Ohio’s medical marijuana law specifically authorizes employers, through a drug-free workplace policy, to treat medical marijuana’s presence in an employee’s system as a violation of the policy. It is advisable for employers to make it clear in their drug-free workplace policies that detection of the presence of medical marijuana in an employee’s system through a drug test will violate the policy.

4. Weapons Ban Policies


Effective March of 2017, Ohio’s new concealed carry law prohibits both public and private employers from having or enforcing policies that restrict valid concealed carry holders (as well as covered active military members) from transporting or storing their firearms and ammunition in their personal vehicles. While nothing in the new law requires employers to allow concealed carry holders to bring their weapons into employer buildings or employer owned or operated vehicles, it does permit concealed carry holders and covered active military members to store their personal firearms and ammunition in their personal vehicles as long as the vehicle is in a location where it is otherwise permitted to be (e.g. a parking lot).

As a result, weapons policies, vehicle usage policies, and other applicable policies should be reviewed and revised in order to ensure continued compliance with Ohio law in this area.

5. Workplace Accommodations and Light Duty Policies

By now, employers are well aware of their obligation to provide a “reasonable accommodation” to a qualified employee or applicant with a disability under Ohio and Federal law. As such, most employers already have a “disability accommodation” policy. However, an employee or applicant with a disability is not the only area where employers must provide a reasonable accommodation.

Title VII of the Civil Rights Act (“Title VII”) also requires employers to provide reasonable accommodations for an employee’s religious practices. In 2015, the requirement to provide religious accommodations was brought to the forefront when the U.S. Supreme Court found that Abercrombie & Fitch failed to inquire whether a reasonable accommodation to its dress code policy could be provided when it rejected a Muslim applicant who wore a hijab to the job interview. See EEOC v. Abercrombie & Fitch, 135 S.Ct. 2028 (2015).

In the case of Young v. UPS, 135 S.Ct. 1338 (2015), the U.S. Supreme Court also held that employer light duty policies that are limited to only workplace injuries and which cannot be utilized by pregnant employees violate the Pregnancy Discrimination Act and Title VII. The U.S. Supreme Court made it clear that polices must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” As a result, light duty policies and accommodation policies should address female employees who, due to pregnancy, are limited in their ability to work.

Based upon the U.S. Supreme Court’s duel opinions regarding religious accommodations and accommodating pregnancy-related limitations, employers should take a second look at both their light duty and workplace accommodations policies and procedures. Employers should spell out in their handbooks not only the legal basis for accommodations but also the employer’s intention to comply with them when they are reasonable.

So, there you have it – the top five handbook policies to review for 2017 (thus far). Of course, don’t forget the value of supplying employee and management training once your handbook policies are revised. Managers also should be trained regarding their obligations when confronted with a request for an accommodation or for light duty under the law and under the handbook policy.

*Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment law, is a member of the firm’s Labor and Employment Groups and practices out of the firm’s Columbus, Ohio office. If you have questions regarding your company’s handbook policies, contact Brad at beb@zrlaw.com or (614) 224-4411.




Substance Over Form: Employers Need the Right Evidence to Combat Disability Discrimination Claims

By David P. Frantz*

Even though a stock clerk could not fulfill his job’s lifting requirements, a court concluded that he was qualified for the job. In Camp v. Bi-Lo, LLC, 662 Fed. Appx. 357 (6th Cir. 2016), a grocery store discharged a stock clerk when the clerk’s doctor did not clear him to lift 60 pounds, which was a “frequent” requirement of his job. The clerk sued, claiming the store discriminated against him on the basis of his disability in violation of the Americans with Disabilities Act (“ADA”).

At issue in Camp was whether the stock clerk was qualified for his position, given his inability to lift 60 pounds and the employer’s contention that this was an essential job function. When determining whether a particular job function is essential, courts consider a number of factors: 1) the employer’s judgment; 2) the written job description; 3) the amount of time the employee spends performing the function; 4) the consequences of not requiring the employee to perform the function; 5) the work experience of previous employees who held the position; and 6) the current work experiences of employees in similar jobs.

The court in Camp rejected the employer’s reliance on the stock clerk job description. The employer created the job description more than thirty years after the clerk started working for the company. In addition, the clerk’s immediate supervisor testified that heaving lifting was not an essential job function. The court found that a supervisor’s testimony may rebut claimed essential functions detailed in a job description.

Further, the employer submitted nothing more than the job description to prove two facts: 1) that heavy lifting took up a significant percentage of the clerk’s job; and 2) the clerk’s inability to lift more than 35 pounds caused an actual burden. In contrast, everyone who worked with the clerk testified that heavy lifting was a small and non-important part of the job. The court also concluded that any consequences resulting from the clerk’s disability were de minimis, as the clerk and his co-workers had an arrangement alleviating the clerk from having to lift the heaviest items. Those co-workers also testified that such an arrangement would have minimal effect on store operations. Finally, the court considered that the clerk fulfilled his job duties for years with his disability and the help of co-workers.

The Camp case teaches employers several important lessons. Disability discrimination cases are fact-specific. It is imperative that employers engage in an interactive process with individual employees to determine if any reasonable accommodations exist. In addition, employers should fully evaluate whether a job function is truly essential and should not simply rely on an old written job description. Employers also should ensure that management and supervisors have the same understanding regarding a job’s essential functions.

*David P. Frantz practices in all areas of employment and labor law. If you have questions about this decision, disability discrimination, or reasonable accommodations, please contact David (dpf@zrlaw.com) at 216.696.4441.





Z&R SHORTS


Please join Z&R in welcoming Sean Kelly to its Employment and Labor Groups.


Sean Kelly joined Zashin & Rich in 2017. He represents public and private sector employers in all aspects of labor and employment law and employee benefits disputes. Sean has extensive litigation experience before state federal courts and administrative agencies. His representative cases include complex occupational safety and health, workplace intentional tort, employment discrimination, and whistleblower matters. Sean also has experience handling disputes arising under the Employer Retirement Income Security Act of 1974 (ERISA) and state insurance law. Sean has appeared before the Supreme Court of Ohio, and has set Ohio precedent in the area of workers' compensation. In addition to his litigation practice, Sean counsels employers in EEO, OSHA, employee benefits, executive compensation, wages and hours, and other compliance matters. He brings over a decade of experience in highly specialized industry sectors including aviation, maritime, health care, and oil and gas production. His practice includes helping employers properly address inspections by government agencies including OSHA, NIOSH, and the FAA.

Upcoming Speaking Engagements


Monday, August 21, 2017
Patrick M. Watts presents “Creating Fair Labor Standard Act (FLSA) Compliance Strategies That Work” at the National Business Institute’s seminar on Advanced Employment Law held at the Hilton Garden Inn Akron in Akron, Ohio.

Wednesday–Friday, September 13–15, 2017
Patrick M. Watts and Lisa A. Kainec present “Medical Marijuana and the Heroin Epidemic: Impact on the Workplace” at the Ohio Society for Human Resource Management seminar held at Kalahari Resorts in Sandusky, Ohio.

Monday, October 2, 2017
Jonathan J. Downes presents “Labor and Employment Law Challenges” at the Ohio Association Chiefs of Police New Chiefs’ Workshop held at the Crowne Plaza Columbus North‐Worthington in Columbus, Ohio.

Tuesday, October 24, 2017

Lisa A. Kainec presents “Employment Law Hot Topics and Legislative Update” at the Medina Society for Human Resource Management seminar held at Weymouth Country Club in Medina, Ohio.

Monday, March 27, 2017

Ohio Senate Bill Proposes New Protections for Retail & Fast Food Workers

*By Scott H. DeHart

On March 15, 2017, State Senator Michael Skindell (D-Lakewood) introduced Senate Bill 101, the “Retail and Restaurant Employee Rights Act.” The Bill is intended to address hiring and scheduling practices of large retailers and fast-food restaurant franchises that employ part-time workers at relatively low wages, which results in many workers holding multiple jobs. The Bill takes aim at "just in-time" scheduling practices that are perceived to make it difficult for employees to hold second jobs or handle personal needs such as caring for family members.

Senate Bill 101 outlines a series of hiring, scheduling, and other provisions that employers must follow in order to make work schedules fair and predictable for their employees.

  • Under the proposed law, employers would be required to offer additional work to any “available” existing workers before hiring or leasing new employees. “Available” workers include those who are scheduled for less than 35 hours per week and are qualified to perform that work.
  • Employers would also be required to post their employees’ schedules publicly at least 14 days in advance, including both regular and on-call shifts.
  • If an employer cancels a worker’s shift with less than 14 days’ notice, the employee must still be paid some compensation that will vary with the length of notice given. In addition, the legislation outlines pay for on-call shifts.
  • The legislation also includes provisions requiring part-time and full-time employees to be treated similarly regarding hourly wages, employee benefits including healthcare, access to time off, and eligibility for promotions.
  • Successor employers would also be subject to certain requirements to retain existing workers after a transition in ownership.

In a press release about the Bill, Senator Skindell explained that “[t]he proposed legislation would provide hours and retention protections for fair and predictable scheduling and treatment of part-time employees of some chain stores and fast food restaurants. It is imperative that we work toward increasing economic security and providing strong worker protections at the state level.” If enacted, the Ohio Department of Commerce would be responsible for the enforcement of the Bill’s requirements. Remedies for an employer’s violation of the proposed law would include requiring employers to offer additional work, reinstate employees, pay lost wages and penalties, and pay for enforcement costs and attorney’s fees.

Senate Bill 101 has the potential to dramatically increase the legal compliance burdens of retail and fast-food businesses operating in Ohio. Zashin & Rich, Co. L.P.A. will continue to monitor new developments as SB 101 proceeds through the legislative process in the General Assembly.

*Scott H. DeHart is the newest member of the firm’s Labor and Employment Groups and practices out of the firm’s Columbus, Ohio office. If you have questions regarding this proposed legislation, contact Scott at shd@zrlaw.com or 614-224-4411.

Friday, January 20, 2017

U.S. Citizenship and Immigration Services Give Form I-9 a “Smart” Makeover

By Scott H. DeHart*

One of the most widely-recognized “new hire” employee forms in the United States has received a twenty-first century makeover. Beginning January 22, 2017, employers must complete a new Form I-9, Employment Eligibility Verification, for all new hires in the United States.

Employers have had to complete Form I-9s since November 1986, when Congress passed the Immigration Reform and Control Act (“IRCA”). The IRCA prohibits employers from hiring workers, including U.S. citizens, for employment in the U.S. without verifying their identity and employment authorization using Form I-9.

The new Form I-9, dated November 14, 2016, includes a number of changes designed to make the form easier for employers to complete. Those changes include the following new “smart” features (i.e., enhancements for completing the form on a computer) and modifications to the form’s content:

Smart Features
  • Drop-down menus, lists, and calendars;
  • Hover text for on-screen instructions;
  • Real-time prompts to notify users that a required field has been left blank or not completed correctly;
  • Automatically marking fields as “Not Applicable,” based on the employee’s selected citizenship or immigration status; and
  • Automatically creating a quick response (QR) code when the form is printed.

Content Changes
  • Instructions for completing Form I-9 moved to a separate document;
  • The “Other Names Used” field replaced with “Other Last Names Used” field;
  • A supplemental page added to designate preparers/translators who assist in completing the form; and
  • A dedicated area for including additional information.

Employers can download a PDF version of the new Form I-9 at the website for U.S. Citizenship and Immigration Services (“USCIS”), along with instructions about how to complete the form: https://www.uscis.gov/i-9. USCIS designed the new Form I-9 so that it could be completed using a computer and then printed for signing. Employers may also print and complete an alternate version of the form (without any smart features and fillable fields) by hand.

Beginning January 22, 2017, companies must begin using the new Form I-9. Employers should review and monitor their hiring processes, and consult with their legal counsel for assistance as needed to ensure that they are using the Form I-9 correctly.

*Scott H. DeHart is the newest member of the firm’s Labor and Employment Groups and practices out of the firm’s Columbus, Ohio office. If you have questions regarding your company’s transition to the new Form I-9, contact Scott at shd@zrlaw.com or 614-224-4411.

Thursday, January 12, 2017

Park Your Ride and Your Piece: New Employer Limits on Workplace Weapons Bans in Ohio

*By Helena Oroz

Many employers allow employees to bring some of the comforts of home to work: lunch, music, personal d├ęcor, even their pets. Generally speaking, the list doesn’t include firearms, though – in fact, many employers have strict “no weapons” rules on their property, including their parking lots. But what if an employee doesn’t want to part with his or her gun during the workday?

Until recently, Ohio was not among those states with so-called “parking lot laws” on the books: laws that limit or even prohibit employer restrictions on employee storage of firearms and/or ammunition in private vehicles parked on employer property. Private employers were free to establish blanket weapon prohibitions on their property, even as concerned individuals with concealed handgun permits.

As of March 20, 2017, Ohio employers are no longer so free – at least with respect to their parking lots. Ohio Governor John Kasich signed Senate Bill 199 into law on December 19, 2016. Among other things, Senate Bill 199 creates Ohio Revised Code section 2923.10, Ohio’s new parking lot law. The law forbids business entities, including public and private employers, from maintaining or enforcing a rule that prohibits a concealed handgun licensee from transporting or storing a firearm or ammunition in their vehicle, if two conditions are met.

  • First, the firearm/ammunition must remain inside the person’s vehicle while the person is physically present inside the vehicle; or the firearm/ammunition must be locked within the trunk, glove box, or other enclosed compartment within the vehicle.
  • Second, the vehicle must be in an authorized location.

The new law takes effect March 20, 2017.

Takeaways:


  • Ohio’s new law does not create a “take your gun to work day” every day. Employers are still free to prohibit firearms in their buildings, in company-owned vehicles, and basically everywhere other than in employee-owned vehicles permissibly parked in employer-owned parking lots.
  • The law concerns itself only with restrictions on those holding valid concealed handgun licenses, not illegal gun-toters and the like. (Side note: Senate Bill 199 also amends existing Ohio law to specify that an active duty member of the U.S. Armed Forces does not need a concealed handgun license – and, therefore, would seemingly not qualify as an illegal gun-toter – if the member is carrying valid military identification and documentation of successful completion of specified firearms training.)
  • The new parking lot law does not refer to or amend existing Ohio law regarding posting: private property owners may post signage in a conspicuous location on premises prohibiting persons from carrying firearms or concealed firearms onto those premises. Given the new law’s prohibitions, however, any existing signage should be reviewed to ensure compliance.
  • If your Employee Handbook or Workplace Violence policy includes a blanket prohibition on firearms on employer property, including parking lots, revise your policy to ensure compliance with the new law.

If you have questions about Ohio’s new parking lot law, please contact Helena Oroz (hot@zrlaw.com or 216/696-4441).

Thursday, December 22, 2016

Cleveland Minimum Wage Increase Ballot Initiative Thwarted

*By Andrew Cleves

On December 19, 2016, Governor John Kasich signed Senate Bill 331 into law, which prohibits local governments from setting a minimum wage rate higher than the state rate. In effect, this law nullifies the upcoming Cleveland minimum wage increase ballot initiative. Cleveland voters are set to vote on a minimum wage increase on May 2, 2017. Under that proposal, the minimum wage rate in Cleveland would increase from $8.10 per hour to $12.00 per hour in January 2018. Then, the rate would increase another $1 per hour for three years, until it reached $15.00 per hour. Therefore, at least for now, this legislation likely ends attempts to raise the minimum wage rate in Cleveland.

*Andrew Cleves practices in all areas of employment and labor law. If you have questions about Senate Bill 331, Cleveland’s minimum wage increase ballot initiative, or Ohio’s wage and hour laws, please contact Andrew (ajc@zrlaw.com) at 216.696.4441.

Wednesday, November 23, 2016

Texas Court Strikes Again – Halts the Implementation of the DOL’s Revised Overtime Regulations

By Michele L. Jakubs*

On November 22, 2016, the Court in State of Nevada, et al. v. U.S. Dept. of Labor, granted a nationwide preliminary injunction halting implementation of the Department of Labor’s rule increasing the minimum salary threshold required to qualify for the Fair Labor Standards Act’s “white collar” overtime exemptions. The rule was set to take effect on December 1, 2016 and would have increased the minimum salary threshold from $23,660 per year to $47,476 per year. For the time being, the salary threshold for the “white collar” exemptions remains $23,660 per year ($455 per week).

As the Court’s ruling is only a preliminary injunction, subject to future modification, we will continue to monitor this case as it proceeds forward and will advise of any additional rulings.

*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience defending employers in FLSA actions and is well versed in the nuances of the law. If you have questions about the DOL’s final rule or the FLSA more generally, please contact Michele (mlj@zrlaw.com) at 216.696.4441.

Thursday, November 17, 2016

TRUMPED: Texas Federal Court Permanently Enjoins the DOL’s “Persuader Rule” – Will the DOL Changes to the FLSA Exemptions Thresholds Face the Same Fate?

By Patrick J. Hoban*

Yesterday, the Federal District Court for the Northern District of Texas made permanent the preliminary injunction it issued earlier this year to prevent the U.S. Department of Labor (“DOL”) from enforcing its controversial “persuader” rule (“Persuader Rule”). Judge Sam R. Cummings announced the decision on Wednesday in a concise two-page opinion, in which he concluded that the Persuader Rule violated the federal Administrative Procedure Act, 5 U.S.C. § 706 (“APA”) and is unenforceable. The case, National Federation of Independent Businesses v. Perez, No. 5:16-cv-00066-C (N.D. Texas, November 16, 2016), effectively converts the preliminary injunction granted by the same court on June 27, 2016 into a permanent injunction with nationwide effect.

The Persuader Rule, which took effect on April 25, 2016, dramatically expanded the reporting requirements imposed on employers and their labor relations consultants under the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”). Under the LMRDA, employers and their labor relations consultants are required to disclose agreements to engage in activities to persuade employees regarding their rights to unionize and collectively bargain. These onerous disclosure reports required that employers, attorneys and consultants provide details about the nature and cost of the services consultants provide. Although the reporting requirements were subject to certain exemptions, including an exemption related to the provision of “advice,” the DOL’s guidance on the Persuader Rule made clear that it would decide what services qualified as advice on a case-by-case basis.

Historically, the DOL has interpreted the “advice” exemption to exclude from the reporting requirements an employer’s engagement of consultants, including attorneys, to assist in responding to a unionizing campaign, where: (1) the consultant or attorney had no direct contact with the employees; and (2) the employer retained discretion to reject the recommendations of the consultant or attorney. The DOL’s new Persuader Rule upended this long-standing interpretation by requiring employers and labor relations consultants to report their agreements even in the absence of direct contact between the consultants and the employees.

U.S. Secretary of Labor Thomas E. Perez defended the Persuader Rule from withering criticism, describing the changes as a “matter of basic fairness” to ensure that workers have “the information they need to make informed choices about how they pursue their rights to organize and bargain collectively.” Employers, labor relations consultants, and attorneys opposed the changes. Of particular concern was the extent to which the Persuader Rule would have compelled employers and law firms to disclose information protected by the attorney-client privilege. Absent the Court’s June injunction, enforcement of the Persuader Rule and its new reporting requirements would have begun on July 1, 2016.

Yesterday, Judge Cummings granted summary judgment to those challenging the Persuader Rule and reiterated his previous conclusions that it was “defective to its core,” “arbitrary and capricious,” “violated free speech and association rights,” and was “unconstitutionally vague.” Additionally, Judge Cummings affirmed that the Persuader Rule violated the Administrative Procedures Act and that the DOL did not have authority to issue it. On these grounds, the Court issued a nationwide permanent injunction prohibiting enforcement of the Persuader Rule.

The DOL previously appealed Judge Cumming’s decision granting the preliminary injunction of its Persuader Rule to the U.S. Fifth Circuit Court of Appeals, but that appeal was rendered moot by Wednesday’s summary judgment ruling. However, in June 2016, a federal district court in Minnesota refused to enjoin the Persuader rule.

The Persuader Rule is one among several hotly-contested Obama administration changes to employment and labor relations law. Those changes have caused significant disruption and include the National Labor Relations Board (“NLRB”)’s “ambush” election rules, the NLRB’s Specialty Healthcare decision that opened the floodgates for “micro” union organizing, and the DOL’s changes to the salary threshold for exempt status under the Fair Labor Standards Act (“FLSA”) (which likely takes effect on December 1, 2016).

Like the Persuader Rule, the DOL changes to FLSA exemptions were also challenged in federal court in Texas by twenty-one states and multiple business entities – including challenges under the Administrative Procedures Act. Although the new FLSA exemptions rule takes effect on December 1, the judge in that case announced yesterday that on November 22 he will issue a decision on whether DOL will be prohibited from enforcing the new rule. As a result, we will soon see if the Eastern District of Texas reaches the same conclusion with regard to the changes to the FLSA exemptions as Judge Cummings did for the Persuader Rule.

Yesterday’s decision is subject to appeal. However, as President-Elect Donald Trump will take office in January, there is reason to believe the Trump DOL will not seek review. The Court’s ruling on the Persuader Rule provides employers with relief from reporting requirements and potential liability. As we look to the future, it is anticipated that Trump administration appointments at DOL and the NLRB may offer employers a more level playing field.

*Patrick Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about the DOL’s persuader rule or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.