By Brad E. Bennett*
As Z&R recently reported, on October 26, 2015, the 5th Circuit Court of Appeals scolded the National Labor Relations Board’s (NLRB) attack on mandatory arbitration agreements in the Murphy Oil decision. Murphy Oil was the second time in two years that the 5th Circuit overturned the NLRB’s position regarding class waivers in mandatory arbitration agreements. Undeterred, the NLRB is at it again in Acevedo v. Amex Card Services Co., case number 28–CA–123865.
In Amex, the NLRB once again ordered an employer to remove sections from its mandatory arbitration policy and from its employee signature form that require employees to waive their right to bring class and collective employment actions. Even though the employer’s arbitration policy clearly stated that individual employees were not barred from filing charges with the NLRB, the form employees had to sign acknowledging receipt of the policy did not include that language. As a result, the NLRB found that the policy and signature form, when read together, created an “ambiguity” that could lead workers to think they had no access to the NLRB.
In deciding Amex, the NLRB relied on Murphy Oil for the proposition that a company violates the NLRA by requiring employees to waive their right to bring class and collective claims. The NLRB simply ignored the glaring fact that the 5th Circuit overturned the NLRB’s position in the appeal of Murphy Oil, as it did in the previous case of D.R. Horton. In Murphy Oil, just like Amex, the employer required employees to sign arbitration agreements that prohibited class and collective actions. Murphy Oil also revised its arbitration agreement to state that employees were not barred from “participating in proceedings to adjudicate unfair labor practice charges before the” NLRB, similar to the wording in Amex’s arbitration agreement. The 5th Circuit made it clear that an employer does not engage in unfair labor practices by enforcing an arbitration agreement prohibiting employee collective actions and by requiring employment-related claims to be resolved through individual arbitration. The 5th Circuit also found that arbitration clauses that expressly state they do not prohibit individual employees from participating in proceedings before the NLRB cannot be reasonably interpreted otherwise.
Based upon the 5th Circuit’s previous holdings of Murphy Oil and D.R. Horton, the NLRB may once again be overturned should Amex decide to appeal. What should employers, who have arbitration agreements, do in the interim? Since the NLRB continues to defy federal courts by attacking arbitration agreements, employers should have their arbitration agreements reviewed to ensure that they comply with the 5th Circuit’s position. Taking time to review an arbitration agreement now may provide your company with the legal shield it needs should the NLRB decide to make it the next target for an attack.
*Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment Law, practices at the firm’s Columbus office. He is well versed in all areas of labor and employment law including assisting employers with the implementation and administration of alternative dispute resolution agreements. If you have any questions about arbitration agreements or other labor/employment matters, please contact: Brad E. Bennett | beb@zrlaw.com | 614.224.4411
Wednesday, December 16, 2015
Tuesday, December 15, 2015
EMPLOYMENT LAW QUARTERLY | Volume XVII, Issue iii
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In June, the U.S. Supreme Court issued a landmark decision in Obergefell v. Hodges, holding that all states must issue marriage licenses to same-sex couples and recognize same-sex marriages validly performed in other states. The legalization of same-sex marriage affects the way employers provide benefits to same-sex employees. Marriage is not the only front on which LGBT rights are evolving. With much of the public and the media’s spotlight on changes in the law regarding same-sex marriage, people may not realize that several federal agencies already interpret anti-discrimination laws to prohibit discrimination on the basis of sexual orientation and gender identity.
The Equal Employment Opportunity Commission (“EEOC”), the Department of Labor (“DOL”), and the Department of Justice (“DOJ”) all take the position that statutes and orders prohibiting sex discrimination, such as Title VII of the Civil Rights Act of 1964, prohibit discrimination on the basis of gender identity (e.g., identifying as transsexual or transgender). These federal agencies reason that discrimination on the basis of gender identity is a form of sex discrimination. The EEOC and the DOL have stated further that prohibitions against sex discrimination protect discrimination on the basis of sexual orientation as well. Therefore, an individual may file a charge of discrimination with the EEOC on the basis of sexual orientation or gender identity, as a form of sex discrimination. Indeed, the EEOC has reported an increase in sexual orientation and gender identity-based charges, from 765 filed in 2013 to 1,093 filed in 2014.
Ohio’s anti-discrimination laws prohibit discrimination on the basis of sex, but Ohio courts have yet to interpret state law to prohibit sexual orientation discrimination. While Ohio courts generally interpret Ohio’s discrimination law to match federal anti-discrimination protections, Ohio’s 10th district appellate court ruled in its 2014 decision in Burns v. Ohio State Univ. College of Veterinary Med., 2014-Ohio-1190, 2014 Ohio App. LEXIS 1101 (10th App. Dist. 2014), that the state’s prohibition of sex discrimination does not extend to sexual orientation discrimination. Given the rapidly changing legal landscape regarding LGBT rights, Ohio courts’ stance may soon shift. Regardless, employers should be aware that employees experiencing sexual orientation or sexual identity discrimination may seek recourse with state or federal agencies or the court system.
*Ami J. Patel practices in all areas of labor and employment law. If you have questions about your employment policies in light of legal changes regarding LGBT individuals, please contact Ami at (ajp@zrlaw.com) or 216.696.4441.
Years ago, we watched with bated breath as the French mastiff Hooch helped Detective Scott Turner (Tom Hanks) apprehend a murderer. Sadly (*spoiler alert*), Hooch died in the film’s final minutes. However, had he lived and Detective Turner continued to use Hooch in police work, the Cypress Beach Police Department may have faced a question now facing many police departments, officers, and courts – should police departments pay for off-the-clock time spent caring for police dogs?
The Fair Labor Standards Act (“FLSA”) generally requires employers to compensate employees for all hours worked. “Work” includes “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944). In addition, the FLSA requires that employers compensate employees for activities performed before or after the employee’s regular work shift if the “activities are an integral and indispensable part of the principle activity” for which the employee is employed. Steiner v. Mitchell, 350 U.S. 247 (1956).
Courts and the Department of Labor have concluded that time-spent off-the-clock caring for police dogs constitutes work and an “integral and indispensable part” of the officer’s principle activity of employment.Specifically, time spent training the dog at home and the dog’s “care” are compensable. U.S. Dept. of Labor Wage and Hour Opinion Letter August 11, 1993. “Care” includes: bathing, brushing, exercising, feeding, grooming, related cleaning of the dog’s kennel or transport vehicle, administering medicine for illness, and transporting the dog to and from the veterinarian. So how much time must an employer compensate law enforcement personnel for these activities and at what rate?
Generally, employers must pay employees a rate of at least one and one-half times the employee’s regular rate of pay for hours worked in excess of 40 hours in a week. 29 U.S.C. §207(a)(1). However, employers may calculate law enforcement personnel overtime over a longer time-period, up to 171 hours in 28-day period. 29 U.S.C. §207(k). In addition, the FLSA allows employers and employees to agree upon different straight-time hourly rates where the employee performs “two or more kinds of work.” 29 U.S.C. §207(g). In the event an employer agrees upon a different straight-time hourly rate for dog-care, it must ensure that it only pays that different rate for dog-care and not law enforcement activities.
How much time a police department must compensate its personnel to care for police dogs varies by court.In one case, the court concluded the District of Columbia had to pay its officers 30-minutes per day (seven days/week) for “the care, feeding, and grooming” of the police dogs. Levering v. District of Columbia, 869 F. Supp. 24 (D.C. Cir. 1994). However, another court upheld the City of Cincinnati’s agreement, reached through a collective bargaining agreement, to compensate its canine officers for 17 minutes of straight-time per day. Brock v. City of Cincinnati, 236 F.3d 793 (6th Cir. 2001). There, in finding the agreement Cincinnati reached with its police union reasonable, the court considered the following additional benefits the City provided (among others): take-home vehicles; concrete-based fenced dog kennel at the officer’s home; payment of food and veterinary care; and the benefit of having a highly trained police dog as a family pet.
Employers that maintain police department canine units should review their compensation system to ensure they are properly compensating those caring for the canines. When determining what constitutes proper payment, in addition to an hourly rate, employers may consider other benefits provided. Employers should attempt to reach an agreement with personnel on a reasonable amount of compensation and contact counsel with questions.
*Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment Law, practices at the firm’s Columbus office.He is well versed in all areas of labor and employment law including FLSA compliance.If you have questions about the FLSA and police department canine units, please contact Brad (beb@zrlaw.com) at 614.224.4411.
“Ok we got Bin Laden . . . let’s go get Kasich next . . . who’s with me?” “[C]an’t believe what a snake my boss is. . . . he needs to keep his [creepy] hands to himself . . . just an all around d-bag!!” “If you are on public assistance, you may not have additional children and must be on birth control (e.g. an IUD).” These are statements that employees made on Facebook for which they received discipline, yet courts and an arbitrator reached different conclusions regarding the appropriateness of the discipline.
The decisions raise many questions. Can employers discipline employees for comments, posts, etc. that employees make while off-duty on non-employer social media sites? What standards apply to employee off-duty conduct? The arbitrator evaluating whether the Ohio Department of Rehabilitation and Correction had just cause to terminate the employee who made the Bin Laden comment above considered these issues. State of Ohio, Ohio Dep’t of Rehab. and Corr., (Pincus, Mar. 6, 2013). There, four employees who worked in the same correctional institution “liked” the corrections officer’s Bin Laden Facebook comment, which he posted off-duty. The officer’s Facebook profile included his job location and public employee status. Once the employer learned of the comment, it investigated and ultimately discharged the officer. However, the arbitrator concluded that the officer’s statement was nothing more than empty words. In addition, the employer’s “E-mail, Internet, and On-line Services Use” policy did not place the employee on notice that the policy covered his off-duty conduct. As a result, the arbitrator concluded that while officer’s alleged threat justified a 14-month suspension, the employer did not have just cause to terminate his employment.
The First Amendment protects a public employee’s right “to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410 (2006). A public employee must show the following to establish the First Amendment protected his or her speech: (1) the employee spoke as a private citizen rather than pursuant to official duties; (2) the speech involved a matter of public concern; and (3) the employee’s “interest as a citizen” in commenting on the matter outweighed the State’s interest, “as an employer, in promoting the efficiency of the public services it performs through its employees.” Westmoreland v. Sutherland, 662 F.3d 714 (6th Cir. 2011).
Employees have raised the First Amendment as a defense to their social media posts in a number of contexts with varying results. For example, the court affirmed the discharge of the children’s services worker who made the above (and many other) comments about people who received public assistance. Shepherd v. McGee, 986 F.Supp. 2d 1211 (D. Or. 2013). The court reasoned that since her comments were banter “rather than speech intended to help the public actually evaluate the performance of a public agency,” they stood “on the periphery of First Amendment protection.” The court also emphasized the heightened government interest that existed since the employee held a “public contact role.” In addition, the employee’s statements impaired her ability to do her job – testify at proceedings, since her statements raised credibility issues for prosecutors.
In evaluating employee conduct, discipline, and social media use, it is helpful for employers to have social media and computer use policies. However, employers must be cautious about the content and prohibitions included in such policies. The National Labor Relations Board (“NLRB”) analyzes whether employers violate Section 7 of the National Labor Relations Act (“NLRA”), which guarantees employees the right to join unions and engage in “concerted activity” for the purposes of “mutual aid or protection.” 29 U.S.C. §157. In the social media context, the NLRB considers whether an employee could reasonably construe a rule or policy to chill the employee’s exercise of their Section 7 rights.
The NLRB has shown it will go to great lengths to protect employee speech. In Three D, LLC v. NLRB, the Second Circuit affirmed the NLRB’s ruling that an employee’s Facebook post that the employer was “[s]uch an asshole” was concerted, protected activity. No. 14-3284, 2015 U.S. App. LEXIS 18493 (2d Cir. Oct. 21, 2015). The NLRB found the activity concerted because it involved multiple employees and protected because it involved workplace complaints about tax withholdings. Furthermore, the statements were within the NLRA’s protection because the comment at issue did not mention, let alone disparage, the employer’s products. Therefore, at least according to the NLRB, an employee may call their boss an “asshole” on social media without repercussion.
Beyond controlling and responding to employee use of social media, the prevalence of social media bleeds into the hiring process. Social media provides employers with another forum to post jobs and conduct background checks. However, employers should engage in social media checks with caution. First, employers should consider the accuracy of the information (e.g., potential for false profiles or accounts). In addition, by viewing a prospective employee’s social media account, the employer may incidentally obtain information regarding the individual’s race, gender, national origin, religion, age, disability, or genetic background. This knowledge could expose the employer to claims of discrimination. Therefore, any employer who chooses to review prospective employees’ social media accounts should take the following precautionary steps: (1) ensure the person reviewing social media accounts is wholly uninvolved in making the hiring decision; (2) only review publicly available social media; and (3) do not request social media account passwords during the hiring process.
The growing prevalence of social media has created a host of potential issues for employers. Given social media’s fast-paced growth and ever-changing nature, employers should constantly keep abreast of the current status of the law.
*Drew C. Piersall works in the firm’s Columbus office and practices in all areas of labor and employment law. If you have any questions about employee use of social media, please contact Drew (dcp@zrlaw.com) at 614.224.4411.
Employers that wait too long to report claims to an Employment Practices Liability Insurance (“EPLI”) carrier may lose coverage. A federal court recently determined that an employer violated its EPLI policy when it waited nearly two years to notify its insurance carrier of an Equal Employment Opportunity Commission (“EEOC”) Charge of Discrimination (“Charge”). E. Dillon Co. v. Travelers Cas. & Sur. Co. of Am., No. 1:14-cv-00070, 2015 U.S. Dist. LEXIS 76295 (W.D. Va. June 12, 2015). As a result, the insurance carrier did not have to provide coverage for the EEOC Charge and subsequent litigation.
The employer twice waited too long to provide notice of claims to its EPLI carrier. First, the employer waited almost 23 months after it received notice of a pending EEOC Charge (Apr. 4, 2011) before notifying the insurance carrier (Feb. 28, 2013). During that time, the EEOC dismissed the Charge (Apr. 28, 2012), reversed course and found reasonable cause to believe the employer violated the Americans with Disabilities Act (Sept. 27, 2012) and scheduled mediation (Mar. 14, 2013). Later, the employer waited approximately five months after it was served with a lawsuit related to the Charge (Sept. 9, 2013) to notify the insurance carrier of the lawsuit (Feb. 3, 2014). The employer provided notice of the lawsuit eight days before court-scheduled mediation was to occur.
The insurance carrier denied both claims after it concluded the employer failed to provide timely notice. The insurance policy covered any “Employment Claim,” which specifically included EEOC proceedings, and required the employer to provide written notice of claims “as soon as practicable.” The insurance carrier concluded that the employer’s decision to wait nearly 23 months and five months respectively to provide notice of the claims violated the “as soon as practicable” requirement.
The court agreed and concluded that the employer’s failure to provide timely notice constituted a material breach of the insurance agreement.The employer’s notification delay was unreasonable because the insurance agreement specifically defined “Employment Claim” to include EEOC proceedings. In addition, the delay prejudiced the insurance carrier, because the carrier: lost the chance to investigate the claims, to direct the employer’s defense, and t0 attempt to resolve the matter before the EEOC found reasonable cause; and the EEOC’s proposed Conciliation Agreement ($178,000 payment) diminished any settlement leverage the insurance company may have possessed.The court concluded the length of delay alone was sufficient to find that the employer materially breached the insurance agreement. In reaching this conclusion, the court considered other court cases which held that any delay beyond 75 days, without reasonable excuse, was unreasonable.
Upon receipt of a potential claim, employers should carefully review their EPLI policy’s reporting requirements and work with their brokers to avoid losing coverage for failing to timely report.Finally, all employers should consider whether to purchase an EPLI policy.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law, is head of the firm’s Labor and Employment Groups.If you have questions about this article, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
On October 30, 2015, the Equal Employment Opportunity Commission (“EEOC”) released a Notice of Proposed Rulemaking setting forth proposed changes to the regulations governing employer wellness programs in relation to Title II of the Genetic Information Nondiscrimination Act (“GINA”). GINA is a federal law that, in part, protects employees and applicants from discrimination based upon genetic information, including that of their family members. The proposed rule seeks to clarify the circumstances under which employers may offer inducements (i.e., wellness program incentives) in exchange for health-status information of employee spouses who participate in the employer’s group health plan.
A wellness program is “a program offered by an employer that is designed to promote health and prevent disease.” 42 U.S.C. 300gg-4(j)(1)(a). Wellness programs include a wide range of employer-sponsored services, from smoking cessation to workout programs to health assessments. Under GINA, wellness programs cannot condition employee inducements upon employee genetic information. “Genetic information” includes, among other things, information about employees and their family members’ (including spouses) genetic tests and family medical history.
Employers covered by GINA (i.e., those with 15 or more employees) are prohibited from requesting, requiring, or purchasing employee genetic information, unless a statutory exception applies. One exception allows employers to obtain genetic information as part of employer-provided voluntary health or genetic services, including wellness programs. This exception only applies if: (1) the provision of genetic information is actually voluntary (i.e., employees are not required to provide the genetic information and there is no penalty for not providing it); and (2) the individual provides “prior knowing, voluntary, and written authorization.” 29 C.F.R. 1635.8(b)(2)(i).
The EEOC’s proposed rule adds an additional requirement that an employer’s wellness program must be “reasonably designed to promote health or prevent disease.” This means the wellness program “must have a reasonable chance of improving the health of, or preventing disease in, participating individuals, and must not be overly burdensome, a subterfuge for violating [GINA] or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease.”
The EEOC’s proposed rule explains that, under GINA, employers can offer limited inducements for information about the current or past health status of an employee’s spouse covered by the employer’s group health plan. The provision of this information must be part of a “health risk assessment,” (e.g., medical questionnaire or examination to detect high cholesterol) conducted in connection with the spouse’s receipt of health or genetic services as part of the employer’s wellness program. The wellness program inducements may take various forms, from discounts or rebates to the avoidance of a premium surcharge. The total inducements offered under the wellness program may not exceed 30 percent of the total annual costs of coverage. To be valid, the provision of the spouse’s information must meet the requirements of GINA’s wellness program exception discussed above (i.e., voluntary and with prior written authorization). Furthermore, the information provided in exchange for the inducement must be limited to current and past health status and cannot include genetic information such as results of genetic tests.
The proposed exception for inducements is limited to employee spouses who are covered under the employer’s group health plan. Employers may not provide inducements in exchange for employee genetic information or their biological or non-biological child’s genetic information or current or past health status. Employers may offer inducements for completion of health risk assessments that ask questions about family medical history and other genetic information; however, the employer must make it clear that the inducement will be available regardless of whether the specific genetic information questions are answered.
Prior to announcing the proposed rule, the EEOC initiated litigation taking issue with multiple employers’ wellness programs. See, e.g., EEOC v. Honeywell Int’l. Inc., N0. 0:14-cv-04517 (D. Minn. 2014); EEOC v. Orion Energy Systems, Inc., N0. 1:14-cv-01019 (E.D. Wis. 2014). In Honeywell, the EEOC sought a temporary restraining order and preliminary injunction preventing the company from imposing surcharge penalties on employees and spouses that did not participate in biometric testing for health data including cholesterol and nicotine levels. The EEOC argued that the wellness program violated GINA and the Americans with Disabilities Act. The court denied the EEOC’s motion, but noted that “great uncertainty persists in how the [Affordable Care Act], [Americans with Disabilities Act] and other federal statutes such as GINA are intended to interact,” with respect to wellness programs.
The EEOC’s proposed GINA rule comes on the heels of an April 2015 proposed rule (discussed by Z&R here) addressing, in part, amendments to the EEOC’s regulations and guidance on the Americans with Disabilities Act relating to employer wellness programs. The comment period for the proposed Americans with Disabilities Act rule closed in June. The EEOC may make revisions in light of the comments before voting on the final rule. The EEOC is accepting comments on its proposed GINA rule until January 28, 2016. Employers can anticipate continued developments, and litigation, in this nascent area of employment law.
*Patrick Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. If you have questions about wellness programs, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
Zashin & Rich is pleased to congratulate the following 2016 Super Lawyers:
Brad E. Bennett, George S. Crisci, Jon M. Dileno, Jonathan J. Downes, Michele L. Jakubs, and Stephen S. Zashin were named Super Lawyers. Helena Oroz, Ami J. Patel, and David R. Vance were named Rising Stars.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
Super Lawyers Magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country.
Lisa A. Kainec Joins Z&R Cleveland
Lisa is a legal and human resources professional with 20+ years of experience in employment law across multiple industries including retail, healthcare, municipal, professional services, construction and manufacturing. Lisa has worked in-house as a human resources executive and senior employment counsel at Jo-Ann Stores. Lisa was a Certified Specialist in Labor and Employment Law. Lisa devotes her practice to providing practical strategies for proactive workforce management as well as vigorous defense of employee claims and litigation.
Brad E. Bennett Joins Z&R Columbus
Brad has 18 years of employment law experience as an attorney and human resources professional across multiple industries including healthcare, aviation, retail, public sector and construction. He represents public and private sector employers in all aspects of labor and employment law. In addition to his litigation practice, Brad represents public sector employers in collective bargaining, grievance arbitrations, and impasse proceedings. Additionally, Brad has drafted civil service rules for municipalities, represents public sector employers before the State Personnel Board of Review (SPBR), and counsels public employers regarding compliance with Ohio’s Open Meetings Act and Public Records Act. Brad is an OSBA Certified Specialist in Labor and Employment.
- Quiet Changes to Employment Laws: Federal Agencies Recognize Sexual Orientation and Gender Identity Discrimination
- How Much Is That Doggie In the Window? Or, Rather, How Much Do Employers Have to Pay Police Officers To Care For Those Police Doggies
- My Employee Said What on Facebook?
- Employment Practices Liability Insurance – Do Not Wait to Notify Carrier of Claims
- EEOC to Change Genetic Information Nondiscrimination Act Regulations on Wellness Programs
- Z&R SHORTS
Quiet Changes to Employment Laws: Federal Agencies Recognize Sexual Orientation and Gender Identity Discrimination
By Ami J. Patel*In June, the U.S. Supreme Court issued a landmark decision in Obergefell v. Hodges, holding that all states must issue marriage licenses to same-sex couples and recognize same-sex marriages validly performed in other states. The legalization of same-sex marriage affects the way employers provide benefits to same-sex employees. Marriage is not the only front on which LGBT rights are evolving. With much of the public and the media’s spotlight on changes in the law regarding same-sex marriage, people may not realize that several federal agencies already interpret anti-discrimination laws to prohibit discrimination on the basis of sexual orientation and gender identity.
The Equal Employment Opportunity Commission (“EEOC”), the Department of Labor (“DOL”), and the Department of Justice (“DOJ”) all take the position that statutes and orders prohibiting sex discrimination, such as Title VII of the Civil Rights Act of 1964, prohibit discrimination on the basis of gender identity (e.g., identifying as transsexual or transgender). These federal agencies reason that discrimination on the basis of gender identity is a form of sex discrimination. The EEOC and the DOL have stated further that prohibitions against sex discrimination protect discrimination on the basis of sexual orientation as well. Therefore, an individual may file a charge of discrimination with the EEOC on the basis of sexual orientation or gender identity, as a form of sex discrimination. Indeed, the EEOC has reported an increase in sexual orientation and gender identity-based charges, from 765 filed in 2013 to 1,093 filed in 2014.
Ohio’s anti-discrimination laws prohibit discrimination on the basis of sex, but Ohio courts have yet to interpret state law to prohibit sexual orientation discrimination. While Ohio courts generally interpret Ohio’s discrimination law to match federal anti-discrimination protections, Ohio’s 10th district appellate court ruled in its 2014 decision in Burns v. Ohio State Univ. College of Veterinary Med., 2014-Ohio-1190, 2014 Ohio App. LEXIS 1101 (10th App. Dist. 2014), that the state’s prohibition of sex discrimination does not extend to sexual orientation discrimination. Given the rapidly changing legal landscape regarding LGBT rights, Ohio courts’ stance may soon shift. Regardless, employers should be aware that employees experiencing sexual orientation or sexual identity discrimination may seek recourse with state or federal agencies or the court system.
*Ami J. Patel practices in all areas of labor and employment law. If you have questions about your employment policies in light of legal changes regarding LGBT individuals, please contact Ami at (ajp@zrlaw.com) or 216.696.4441.
How Much Is That Doggie In the Window? Or, Rather, How Much Do Employers Have to Pay Police Officers To Care For Those Police Doggies
By Brad E. Bennett*Years ago, we watched with bated breath as the French mastiff Hooch helped Detective Scott Turner (Tom Hanks) apprehend a murderer. Sadly (*spoiler alert*), Hooch died in the film’s final minutes. However, had he lived and Detective Turner continued to use Hooch in police work, the Cypress Beach Police Department may have faced a question now facing many police departments, officers, and courts – should police departments pay for off-the-clock time spent caring for police dogs?
The Fair Labor Standards Act (“FLSA”) generally requires employers to compensate employees for all hours worked. “Work” includes “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944). In addition, the FLSA requires that employers compensate employees for activities performed before or after the employee’s regular work shift if the “activities are an integral and indispensable part of the principle activity” for which the employee is employed. Steiner v. Mitchell, 350 U.S. 247 (1956).
Courts and the Department of Labor have concluded that time-spent off-the-clock caring for police dogs constitutes work and an “integral and indispensable part” of the officer’s principle activity of employment.Specifically, time spent training the dog at home and the dog’s “care” are compensable. U.S. Dept. of Labor Wage and Hour Opinion Letter August 11, 1993. “Care” includes: bathing, brushing, exercising, feeding, grooming, related cleaning of the dog’s kennel or transport vehicle, administering medicine for illness, and transporting the dog to and from the veterinarian. So how much time must an employer compensate law enforcement personnel for these activities and at what rate?
Generally, employers must pay employees a rate of at least one and one-half times the employee’s regular rate of pay for hours worked in excess of 40 hours in a week. 29 U.S.C. §207(a)(1). However, employers may calculate law enforcement personnel overtime over a longer time-period, up to 171 hours in 28-day period. 29 U.S.C. §207(k). In addition, the FLSA allows employers and employees to agree upon different straight-time hourly rates where the employee performs “two or more kinds of work.” 29 U.S.C. §207(g). In the event an employer agrees upon a different straight-time hourly rate for dog-care, it must ensure that it only pays that different rate for dog-care and not law enforcement activities.
How much time a police department must compensate its personnel to care for police dogs varies by court.In one case, the court concluded the District of Columbia had to pay its officers 30-minutes per day (seven days/week) for “the care, feeding, and grooming” of the police dogs. Levering v. District of Columbia, 869 F. Supp. 24 (D.C. Cir. 1994). However, another court upheld the City of Cincinnati’s agreement, reached through a collective bargaining agreement, to compensate its canine officers for 17 minutes of straight-time per day. Brock v. City of Cincinnati, 236 F.3d 793 (6th Cir. 2001). There, in finding the agreement Cincinnati reached with its police union reasonable, the court considered the following additional benefits the City provided (among others): take-home vehicles; concrete-based fenced dog kennel at the officer’s home; payment of food and veterinary care; and the benefit of having a highly trained police dog as a family pet.
Employers that maintain police department canine units should review their compensation system to ensure they are properly compensating those caring for the canines. When determining what constitutes proper payment, in addition to an hourly rate, employers may consider other benefits provided. Employers should attempt to reach an agreement with personnel on a reasonable amount of compensation and contact counsel with questions.
*Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment Law, practices at the firm’s Columbus office.He is well versed in all areas of labor and employment law including FLSA compliance.If you have questions about the FLSA and police department canine units, please contact Brad (beb@zrlaw.com) at 614.224.4411.
My Employee Said What on Facebook?
By Drew C. Piersall*“Ok we got Bin Laden . . . let’s go get Kasich next . . . who’s with me?” “[C]an’t believe what a snake my boss is. . . . he needs to keep his [creepy] hands to himself . . . just an all around d-bag!!” “If you are on public assistance, you may not have additional children and must be on birth control (e.g. an IUD).” These are statements that employees made on Facebook for which they received discipline, yet courts and an arbitrator reached different conclusions regarding the appropriateness of the discipline.
The decisions raise many questions. Can employers discipline employees for comments, posts, etc. that employees make while off-duty on non-employer social media sites? What standards apply to employee off-duty conduct? The arbitrator evaluating whether the Ohio Department of Rehabilitation and Correction had just cause to terminate the employee who made the Bin Laden comment above considered these issues. State of Ohio, Ohio Dep’t of Rehab. and Corr., (Pincus, Mar. 6, 2013). There, four employees who worked in the same correctional institution “liked” the corrections officer’s Bin Laden Facebook comment, which he posted off-duty. The officer’s Facebook profile included his job location and public employee status. Once the employer learned of the comment, it investigated and ultimately discharged the officer. However, the arbitrator concluded that the officer’s statement was nothing more than empty words. In addition, the employer’s “E-mail, Internet, and On-line Services Use” policy did not place the employee on notice that the policy covered his off-duty conduct. As a result, the arbitrator concluded that while officer’s alleged threat justified a 14-month suspension, the employer did not have just cause to terminate his employment.
The First Amendment protects a public employee’s right “to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410 (2006). A public employee must show the following to establish the First Amendment protected his or her speech: (1) the employee spoke as a private citizen rather than pursuant to official duties; (2) the speech involved a matter of public concern; and (3) the employee’s “interest as a citizen” in commenting on the matter outweighed the State’s interest, “as an employer, in promoting the efficiency of the public services it performs through its employees.” Westmoreland v. Sutherland, 662 F.3d 714 (6th Cir. 2011).
Employees have raised the First Amendment as a defense to their social media posts in a number of contexts with varying results. For example, the court affirmed the discharge of the children’s services worker who made the above (and many other) comments about people who received public assistance. Shepherd v. McGee, 986 F.Supp. 2d 1211 (D. Or. 2013). The court reasoned that since her comments were banter “rather than speech intended to help the public actually evaluate the performance of a public agency,” they stood “on the periphery of First Amendment protection.” The court also emphasized the heightened government interest that existed since the employee held a “public contact role.” In addition, the employee’s statements impaired her ability to do her job – testify at proceedings, since her statements raised credibility issues for prosecutors.
In evaluating employee conduct, discipline, and social media use, it is helpful for employers to have social media and computer use policies. However, employers must be cautious about the content and prohibitions included in such policies. The National Labor Relations Board (“NLRB”) analyzes whether employers violate Section 7 of the National Labor Relations Act (“NLRA”), which guarantees employees the right to join unions and engage in “concerted activity” for the purposes of “mutual aid or protection.” 29 U.S.C. §157. In the social media context, the NLRB considers whether an employee could reasonably construe a rule or policy to chill the employee’s exercise of their Section 7 rights.
The NLRB has shown it will go to great lengths to protect employee speech. In Three D, LLC v. NLRB, the Second Circuit affirmed the NLRB’s ruling that an employee’s Facebook post that the employer was “[s]uch an asshole” was concerted, protected activity. No. 14-3284, 2015 U.S. App. LEXIS 18493 (2d Cir. Oct. 21, 2015). The NLRB found the activity concerted because it involved multiple employees and protected because it involved workplace complaints about tax withholdings. Furthermore, the statements were within the NLRA’s protection because the comment at issue did not mention, let alone disparage, the employer’s products. Therefore, at least according to the NLRB, an employee may call their boss an “asshole” on social media without repercussion.
Beyond controlling and responding to employee use of social media, the prevalence of social media bleeds into the hiring process. Social media provides employers with another forum to post jobs and conduct background checks. However, employers should engage in social media checks with caution. First, employers should consider the accuracy of the information (e.g., potential for false profiles or accounts). In addition, by viewing a prospective employee’s social media account, the employer may incidentally obtain information regarding the individual’s race, gender, national origin, religion, age, disability, or genetic background. This knowledge could expose the employer to claims of discrimination. Therefore, any employer who chooses to review prospective employees’ social media accounts should take the following precautionary steps: (1) ensure the person reviewing social media accounts is wholly uninvolved in making the hiring decision; (2) only review publicly available social media; and (3) do not request social media account passwords during the hiring process.
The growing prevalence of social media has created a host of potential issues for employers. Given social media’s fast-paced growth and ever-changing nature, employers should constantly keep abreast of the current status of the law.
*Drew C. Piersall works in the firm’s Columbus office and practices in all areas of labor and employment law. If you have any questions about employee use of social media, please contact Drew (dcp@zrlaw.com) at 614.224.4411.
Employment Practices Liability Insurance – Do Not Wait to Notify Carrier of Claims
By Stephen S. Zashin*Employers that wait too long to report claims to an Employment Practices Liability Insurance (“EPLI”) carrier may lose coverage. A federal court recently determined that an employer violated its EPLI policy when it waited nearly two years to notify its insurance carrier of an Equal Employment Opportunity Commission (“EEOC”) Charge of Discrimination (“Charge”). E. Dillon Co. v. Travelers Cas. & Sur. Co. of Am., No. 1:14-cv-00070, 2015 U.S. Dist. LEXIS 76295 (W.D. Va. June 12, 2015). As a result, the insurance carrier did not have to provide coverage for the EEOC Charge and subsequent litigation.
The employer twice waited too long to provide notice of claims to its EPLI carrier. First, the employer waited almost 23 months after it received notice of a pending EEOC Charge (Apr. 4, 2011) before notifying the insurance carrier (Feb. 28, 2013). During that time, the EEOC dismissed the Charge (Apr. 28, 2012), reversed course and found reasonable cause to believe the employer violated the Americans with Disabilities Act (Sept. 27, 2012) and scheduled mediation (Mar. 14, 2013). Later, the employer waited approximately five months after it was served with a lawsuit related to the Charge (Sept. 9, 2013) to notify the insurance carrier of the lawsuit (Feb. 3, 2014). The employer provided notice of the lawsuit eight days before court-scheduled mediation was to occur.
The insurance carrier denied both claims after it concluded the employer failed to provide timely notice. The insurance policy covered any “Employment Claim,” which specifically included EEOC proceedings, and required the employer to provide written notice of claims “as soon as practicable.” The insurance carrier concluded that the employer’s decision to wait nearly 23 months and five months respectively to provide notice of the claims violated the “as soon as practicable” requirement.
The court agreed and concluded that the employer’s failure to provide timely notice constituted a material breach of the insurance agreement.The employer’s notification delay was unreasonable because the insurance agreement specifically defined “Employment Claim” to include EEOC proceedings. In addition, the delay prejudiced the insurance carrier, because the carrier: lost the chance to investigate the claims, to direct the employer’s defense, and t0 attempt to resolve the matter before the EEOC found reasonable cause; and the EEOC’s proposed Conciliation Agreement ($178,000 payment) diminished any settlement leverage the insurance company may have possessed.The court concluded the length of delay alone was sufficient to find that the employer materially breached the insurance agreement. In reaching this conclusion, the court considered other court cases which held that any delay beyond 75 days, without reasonable excuse, was unreasonable.
Upon receipt of a potential claim, employers should carefully review their EPLI policy’s reporting requirements and work with their brokers to avoid losing coverage for failing to timely report.Finally, all employers should consider whether to purchase an EPLI policy.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law, is head of the firm’s Labor and Employment Groups.If you have questions about this article, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
EEOC to Change Genetic Information Nondiscrimination Act Regulations on Wellness Programs
By Patrick Hoban*On October 30, 2015, the Equal Employment Opportunity Commission (“EEOC”) released a Notice of Proposed Rulemaking setting forth proposed changes to the regulations governing employer wellness programs in relation to Title II of the Genetic Information Nondiscrimination Act (“GINA”). GINA is a federal law that, in part, protects employees and applicants from discrimination based upon genetic information, including that of their family members. The proposed rule seeks to clarify the circumstances under which employers may offer inducements (i.e., wellness program incentives) in exchange for health-status information of employee spouses who participate in the employer’s group health plan.
A wellness program is “a program offered by an employer that is designed to promote health and prevent disease.” 42 U.S.C. 300gg-4(j)(1)(a). Wellness programs include a wide range of employer-sponsored services, from smoking cessation to workout programs to health assessments. Under GINA, wellness programs cannot condition employee inducements upon employee genetic information. “Genetic information” includes, among other things, information about employees and their family members’ (including spouses) genetic tests and family medical history.
Employers covered by GINA (i.e., those with 15 or more employees) are prohibited from requesting, requiring, or purchasing employee genetic information, unless a statutory exception applies. One exception allows employers to obtain genetic information as part of employer-provided voluntary health or genetic services, including wellness programs. This exception only applies if: (1) the provision of genetic information is actually voluntary (i.e., employees are not required to provide the genetic information and there is no penalty for not providing it); and (2) the individual provides “prior knowing, voluntary, and written authorization.” 29 C.F.R. 1635.8(b)(2)(i).
The EEOC’s proposed rule adds an additional requirement that an employer’s wellness program must be “reasonably designed to promote health or prevent disease.” This means the wellness program “must have a reasonable chance of improving the health of, or preventing disease in, participating individuals, and must not be overly burdensome, a subterfuge for violating [GINA] or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease.”
The EEOC’s proposed rule explains that, under GINA, employers can offer limited inducements for information about the current or past health status of an employee’s spouse covered by the employer’s group health plan. The provision of this information must be part of a “health risk assessment,” (e.g., medical questionnaire or examination to detect high cholesterol) conducted in connection with the spouse’s receipt of health or genetic services as part of the employer’s wellness program. The wellness program inducements may take various forms, from discounts or rebates to the avoidance of a premium surcharge. The total inducements offered under the wellness program may not exceed 30 percent of the total annual costs of coverage. To be valid, the provision of the spouse’s information must meet the requirements of GINA’s wellness program exception discussed above (i.e., voluntary and with prior written authorization). Furthermore, the information provided in exchange for the inducement must be limited to current and past health status and cannot include genetic information such as results of genetic tests.
The proposed exception for inducements is limited to employee spouses who are covered under the employer’s group health plan. Employers may not provide inducements in exchange for employee genetic information or their biological or non-biological child’s genetic information or current or past health status. Employers may offer inducements for completion of health risk assessments that ask questions about family medical history and other genetic information; however, the employer must make it clear that the inducement will be available regardless of whether the specific genetic information questions are answered.
Prior to announcing the proposed rule, the EEOC initiated litigation taking issue with multiple employers’ wellness programs. See, e.g., EEOC v. Honeywell Int’l. Inc., N0. 0:14-cv-04517 (D. Minn. 2014); EEOC v. Orion Energy Systems, Inc., N0. 1:14-cv-01019 (E.D. Wis. 2014). In Honeywell, the EEOC sought a temporary restraining order and preliminary injunction preventing the company from imposing surcharge penalties on employees and spouses that did not participate in biometric testing for health data including cholesterol and nicotine levels. The EEOC argued that the wellness program violated GINA and the Americans with Disabilities Act. The court denied the EEOC’s motion, but noted that “great uncertainty persists in how the [Affordable Care Act], [Americans with Disabilities Act] and other federal statutes such as GINA are intended to interact,” with respect to wellness programs.
The EEOC’s proposed GINA rule comes on the heels of an April 2015 proposed rule (discussed by Z&R here) addressing, in part, amendments to the EEOC’s regulations and guidance on the Americans with Disabilities Act relating to employer wellness programs. The comment period for the proposed Americans with Disabilities Act rule closed in June. The EEOC may make revisions in light of the comments before voting on the final rule. The EEOC is accepting comments on its proposed GINA rule until January 28, 2016. Employers can anticipate continued developments, and litigation, in this nascent area of employment law.
*Patrick Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. If you have questions about wellness programs, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
Z&R SHORTS
Z&R Announces Its 2016 Super Lawyers and Rising Stars
Zashin & Rich is pleased to congratulate the following 2016 Super Lawyers:
Brad E. Bennett, George S. Crisci, Jon M. Dileno, Jonathan J. Downes, Michele L. Jakubs, and Stephen S. Zashin were named Super Lawyers. Helena Oroz, Ami J. Patel, and David R. Vance were named Rising Stars.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
Super Lawyers Magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country.
Please join Z&R in welcoming two new attorneys to its Employment and Labor Groups.
Lisa A. Kainec Joins Z&R Cleveland
Lisa is a legal and human resources professional with 20+ years of experience in employment law across multiple industries including retail, healthcare, municipal, professional services, construction and manufacturing. Lisa has worked in-house as a human resources executive and senior employment counsel at Jo-Ann Stores. Lisa was a Certified Specialist in Labor and Employment Law. Lisa devotes her practice to providing practical strategies for proactive workforce management as well as vigorous defense of employee claims and litigation.
Brad E. Bennett Joins Z&R Columbus
Brad has 18 years of employment law experience as an attorney and human resources professional across multiple industries including healthcare, aviation, retail, public sector and construction. He represents public and private sector employers in all aspects of labor and employment law. In addition to his litigation practice, Brad represents public sector employers in collective bargaining, grievance arbitrations, and impasse proceedings. Additionally, Brad has drafted civil service rules for municipalities, represents public sector employers before the State Personnel Board of Review (SPBR), and counsels public employers regarding compliance with Ohio’s Open Meetings Act and Public Records Act. Brad is an OSBA Certified Specialist in Labor and Employment.
Monday, December 14, 2015
Public Sector Alert: Ohio “Bans the Box” – Public Employers Cannot Ask About Felony Convictions on Job Applications
By Brad E. Bennett*
On December 9, 2015, House Bill 56, known as the “ban the box” bill, passed both the Senate and the House. The bill becomes effective within ninety (90) days of Governor Kasich’s approval. This bill prevents all public employers, including counties, townships, and municipal corporations, from asking about previous criminal convictions on their job applications. The bill also modifies Ohio’s civil service law, making it clear that classified employees who are convicted of a felony “while employed in the civil service” may be removed under R.C. 124.34(A). Further, if an unclassified employee loses their position because they are convicted of a felony “while employed in the civil service,” the employee forfeits their right to resume a position in the classified service under R.C. 124.11(D)(3)(a).
The bill does not prohibit a public employer from including in a job application a statement, notifying applicants about potential disqualification, if they have a particular criminal history. The bill also does not prohibit public employers from inquiring about felony convictions later in the hiring process. The inquiry is only “banned” from the job application itself.
Public employers should also remain mindful of the EEOC’s 2012 Enforcement Guidelines. The EEOC has taken the position that employers cannot refuse to hire applicants simply because they have a felony conviction. Instead, the EEOC requires employers to demonstrate that the refusal to hire based upon a conviction is “job related and consistent with business necessity.” This will typically require the employer to weigh various factors including the nature of the job, the type of conviction, and the amount of time that has passed since the conviction occurred.
What actions should public employers take now? Public employers should immediately review and revise their job applications to ensure that they comply with House Bill 56. They should also provide training to managers involved in the hiring process to ensure compliance with House Bill 56 and the EEOC’s 2012 Enforcement Guidelines.
Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment Law, practices at the firm’s Columbus office. He is well versed in all areas of labor and employment law including assisting public sector employers with establishing lawful hiring guidelines. If you have questions about the H.B. 56 or your hiring process, please contact: Brad E. Bennett | beb@zrlaw.com | 614.224.4411
On December 9, 2015, House Bill 56, known as the “ban the box” bill, passed both the Senate and the House. The bill becomes effective within ninety (90) days of Governor Kasich’s approval. This bill prevents all public employers, including counties, townships, and municipal corporations, from asking about previous criminal convictions on their job applications. The bill also modifies Ohio’s civil service law, making it clear that classified employees who are convicted of a felony “while employed in the civil service” may be removed under R.C. 124.34(A). Further, if an unclassified employee loses their position because they are convicted of a felony “while employed in the civil service,” the employee forfeits their right to resume a position in the classified service under R.C. 124.11(D)(3)(a).
The bill does not prohibit a public employer from including in a job application a statement, notifying applicants about potential disqualification, if they have a particular criminal history. The bill also does not prohibit public employers from inquiring about felony convictions later in the hiring process. The inquiry is only “banned” from the job application itself.
Public employers should also remain mindful of the EEOC’s 2012 Enforcement Guidelines. The EEOC has taken the position that employers cannot refuse to hire applicants simply because they have a felony conviction. Instead, the EEOC requires employers to demonstrate that the refusal to hire based upon a conviction is “job related and consistent with business necessity.” This will typically require the employer to weigh various factors including the nature of the job, the type of conviction, and the amount of time that has passed since the conviction occurred.
What actions should public employers take now? Public employers should immediately review and revise their job applications to ensure that they comply with House Bill 56. They should also provide training to managers involved in the hiring process to ensure compliance with House Bill 56 and the EEOC’s 2012 Enforcement Guidelines.
Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment Law, practices at the firm’s Columbus office. He is well versed in all areas of labor and employment law including assisting public sector employers with establishing lawful hiring guidelines. If you have questions about the H.B. 56 or your hiring process, please contact: Brad E. Bennett | beb@zrlaw.com | 614.224.4411
Wednesday, December 2, 2015
Z&R ANNOUNCES ITS 2016 SUPER LAWYERS AND RISING STARS
Zashin & Rich is pleased to congratulate the following 2016 Super Lawyers:
Brad E. Bennett, George S. Crisci, Jon M. Dileno, Jonathan J. Downes, Michele L. Jakubs, and Stephen S. Zashin were named Super Lawyers. Helena Oroz, Ami J. Patel, and David R. Vance were named Rising Stars.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
Super Lawyers Magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country.
About Zashin & Rich Co., L.P.A.
With offices in Cleveland and Columbus Ohio, Z&R represents employers in all aspects of employment, labor, and workers' compensation law. The firm represents private and publicly traded companies as well as public sector employers throughout Ohio and the United States. Z&R defends employers in all aspects of private and public sector traditional labor law, employment litigation, and workers' compensation matters. The firm also counsels employers on a variety of daily workplace issues including, but not limited to, employee handbooks, non-compete agreements, social media, workplace injuries, investigations, disciplinary actions, and terminations.
Brad E. Bennett, George S. Crisci, Jon M. Dileno, Jonathan J. Downes, Michele L. Jakubs, and Stephen S. Zashin were named Super Lawyers. Helena Oroz, Ami J. Patel, and David R. Vance were named Rising Stars.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
Super Lawyers Magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country.
About Zashin & Rich Co., L.P.A.
With offices in Cleveland and Columbus Ohio, Z&R represents employers in all aspects of employment, labor, and workers' compensation law. The firm represents private and publicly traded companies as well as public sector employers throughout Ohio and the United States. Z&R defends employers in all aspects of private and public sector traditional labor law, employment litigation, and workers' compensation matters. The firm also counsels employers on a variety of daily workplace issues including, but not limited to, employee handbooks, non-compete agreements, social media, workplace injuries, investigations, disciplinary actions, and terminations.
Tuesday, December 1, 2015
FOOL’S GOLD: When HR Policies Are Not Enough
By Lisa A. Kainec*
Every HR professional knows that solid policies are essential to protect a company against legal claims and liabilities. Unfortunately, even the best policies cannot provide the best protections. Ask yourself a few “what if” scenarios about your key employees, your monetary investment in those employees, the information they have at their fingertips, and what would happen to your business if that information made its way to your competition? If your answers to those questions raise concerns, let’s talk about getting your best protections in place now and hope you’ll never need to use them.
Consider the following policies:
So why isn’t an employee handbook enough to protect you? In virtually every instance, a company’s employee handbook is not a contract of employment and the employer can amend, change, or modify the handbook at any time. In light of such rights, the statements made in an employee handbook are not contractual. The same also holds largely true for offer letters, codes of conduct, and other employer communications. In virtually all of these documents, the employer correctly advises employees that the policies are not contracts and that either the employer or the employer can terminate the relationship at any time.
While those disclaimers protect an employer from certain contractual claims, many employers are left vulnerable and unprotected. The above examples (among others) are instances where an employer’s best protection is a simple written agreement with the employee that specifies their obligations during and after employment. That is why a separate written agreement is essential for certain employees and situations. It also is critically important that a company work with labor and employment lawyers to ensure that their policies will hold up when challenged and are otherwise lawful.
*Lisa A. Kainec, former Vice President of Human Resources and Senior Employment Counsel for Jo-Ann Stores, recently joined the firm’s labor and employment group in its Cleveland office. Lisa represents employers in all areas of labor and employment law including policy review and compliance. If you have questions about employer policy or contract drafting, please contact Lisa A. Kainec | lak@zrlaw.com | 216.696.4441
Every HR professional knows that solid policies are essential to protect a company against legal claims and liabilities. Unfortunately, even the best policies cannot provide the best protections. Ask yourself a few “what if” scenarios about your key employees, your monetary investment in those employees, the information they have at their fingertips, and what would happen to your business if that information made its way to your competition? If your answers to those questions raise concerns, let’s talk about getting your best protections in place now and hope you’ll never need to use them.
Consider the following policies:
- Confidential Information: Most employee handbooks clearly set forth the employer’s policies on protecting the proprietary and confidential nature of information available to the employees. Those policies certainly provide the basis for corrective action up to and including termination of the employment relationship. But do those handbook policies adequately protect the employer if the employee takes confidential information – in paper or electronic form – prior to leaving the company?
- Relocation Benefits: Does your company provide relocation benefits to new employees? Many employers have great relocation packages that afford new employees payment for numerous relocating expenses. However, does your company only have a relocation policy that explains the benefits, but no contractual agreement that permits you to recoup those expenses if the employee leaves employment after a short time?
- Non-Compete and Non-Solicitation: What if the employee leaves and solicits his or her existing accounts to work with his or her new company? What if the employee solicits co-workers to join his or her new company? What happens when an employee leaves and attempts to compete with the prior employer? Is the employer protected from losing its customers and employees?
So why isn’t an employee handbook enough to protect you? In virtually every instance, a company’s employee handbook is not a contract of employment and the employer can amend, change, or modify the handbook at any time. In light of such rights, the statements made in an employee handbook are not contractual. The same also holds largely true for offer letters, codes of conduct, and other employer communications. In virtually all of these documents, the employer correctly advises employees that the policies are not contracts and that either the employer or the employer can terminate the relationship at any time.
While those disclaimers protect an employer from certain contractual claims, many employers are left vulnerable and unprotected. The above examples (among others) are instances where an employer’s best protection is a simple written agreement with the employee that specifies their obligations during and after employment. That is why a separate written agreement is essential for certain employees and situations. It also is critically important that a company work with labor and employment lawyers to ensure that their policies will hold up when challenged and are otherwise lawful.
*Lisa A. Kainec, former Vice President of Human Resources and Senior Employment Counsel for Jo-Ann Stores, recently joined the firm’s labor and employment group in its Cleveland office. Lisa represents employers in all areas of labor and employment law including policy review and compliance. If you have questions about employer policy or contract drafting, please contact Lisa A. Kainec | lak@zrlaw.com | 216.696.4441
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