* By Lawrence E. Dube and Peyton M. Sturges
A recent decision holding that an employer may require its employees to sign an arbitration agreement that waives their rights to participate in class or collective actions, without interfering with their rights under federal labor laws, has important implications for health care employers, attorneys told Bloomberg BNA (D.R. Horton, Inc. v. NLRB, 2013 BL 335349, 5th Cir., No. 12-60031, 12/3/13).
The ruling by a split U.S. Court of Appeals for the Fifth Circuit, finding the National Labor Relations Board erred in concluding homebuilder D.R. Horton Inc. interfered with employees’ National Labor Relations Act rights by mandating arbitration with waivers, provides a green light for health-care employers to adopt similar provisions in their employment agreements, the attorneys said.
The decision is also important because it rebuffed the NLRB with respect to one of its many recent initiatives aimed at nonunion workplaces, they said. Although the NLRB is widely expected to appeal the decision, the Fifth Circuit’s ruling is consistent with those of the other federal appeals courts that have addressed the class and collective action waiver issue and recognized the primacy of the Federal Arbitration Act in interpreting and enforcing arbitration provisions, they added.
Patrick J. Hoban, with Zashin & Rich, Cleveland, said the implications of the court’s decision for health-care employers are substantial, but that health care employers are really no different from other employers when it comes to the need to manage the threat of class action litigation. ‘‘Health-care employers face the same risk of class action litigation under the Fair Pay Act, Title VII, the Fair Labor Standards Act, and other employment and discrimination laws as employers in other industries, so this decision is extremely important to them,’’ he said.
Health Care Implications. Edward Berbarie, with Littler Mendelson PC, Dallas, said the D.R. Horton ruling ‘‘is a big victory for all employers, including those in the health-care industry’’ who ‘‘should consider implementing an arbitration program containing class and collective action waivers.’’ The decision ‘‘reaffirms the U.S. Supreme Court’s mandate to enforce arbitration agreements so that litigants get the benefits of informal, efficient, cost-effective dispute resolution,’’ he said.
‘‘The Fifth Circuit has removed what could have been a big hurdle to the enforcement of class-action waiver provisions, and there is no reason that health-care employers should not, at the very least, seriously consider instituting an arbitration program that provides for the efficient and streamlined resolution of claims,’’ he said.
John Doran, in Littler’s Providence, R.I., office, agreed that the decision is very helpful for health-care employers, particularly because it reined in the board with respect to an issue arising in a nonunion setting.
‘‘The NLRB has made a concerted effort over the last several years to expand its reach to nonunion employees,’’ Doran said. ‘‘Although the NLRA does in fact apply to both union and nonunion employees alike, the NLRB has traditionally focused its energies on union employees.’’
‘‘This has changed in recent years with the NLRB actively pursuing cases against nonunion employers on, allegedly, overbroad policies such as social media policies, confidentiality provisions in employee handbooks and class action waivers in arbitration agreements,’’ he continued. ‘‘There is no doubt that D.R. Horton is primarily about the efficacy of class action waivers in general and the benefits that provides to employers, but the courts reining in the NLRB is an important subtext of the decision.’’
Hoban agreed. ‘‘In recent years, the activist, Obama-appointed NLRB has invaded nonunion employer activities and repeatedly held that long-standing and standardized employer practices violate employees’ NLRA rights,’’ he said. ‘‘Here, the Fifth Circuit joined the Second, Eighth, and Ninth circuits in rejecting the NLRB’s rationale and enforcing mandatory arbitration agreements containing class action waivers.’’
Among those decisions, Hoban noted, was Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013), in which the Eighth Circuit found a former nursing home employee was required to arbitrate her FLSA overtime pay claim even though the arbitration pact contained a class action waiver that forecloses her ability to bring the claim as an FLSA collective action (22 HLR 85, 1/17/13).
‘‘Notably, the Fifth Circuit affirmed the NLRB’s conclusion that D.R. Horton’s arbitration agreement violated the NLRA because employees could reasonably interpret its language to prohibit them from filing unfair labor practice charges with the NLRB,’’ Hoban continued. ‘‘Nevertheless, the Fifth Circuit’s decision provides some light for employers who have or are considering mandatory arbitration agreements prohibiting class arbitration.’’
‘‘However, as the NLRB is very likely to appeal the decision to the U.S. Supreme Court, final resolution of this issue is pending. In the meantime, employers that require employees to sign arbitration agreements must ensure that the agreements clearly set forth that employees retain the right to file unfair labor practices and other administrative charges to avoid running afoul of the NLRA,’’ Hoban concluded.
FAA Controls. In a Dec. 3 ruling, and writing for the majority that included Judge Carolyn Dineen King, Judge Leslie H. Southwick said the NLRB ‘‘did not give proper weight to the Federal Arbitration Act,’’ which made the agreement enforceable. The National Labor Relations Act, which protects the right of employees to engage in concerted activity, ‘‘should not be understood to contain a congressional command overriding the application of the FAA,’’ Southwick wrote in the 2-1 ruling.
Judge James E. Graves dissented from the court’s ruling that maintaining the arbitration agreement with the challenged waivers was lawful.
The court was unanimous in rejecting several ancillary arguments asserted by Horton, including its allegation that the NLRB lacked a quorum to decide the unfair labor practice case. Horton didn’t make a timely challenge to President Barack Obama’s 2010 recess appointment of former NLRB member Craig Becker, the Fifth Circuit said, and the company failed to establish that Becker’s appointment expired before he participated in the NLRB decision.
The appellate court agreed with the NLRB, however, that the homebuilder’s arbitration agreement could reasonably be understood by employees as precluding them from bringing unfair labor practice cases before the NLRB. It therefore enforced the NLRB’s order that the company revise the document to clarify that the agreement didn’t limit the employees’ rights to pursue claims before the NLRB.
The appeals court dismissed the company’s allegations that the NLRB order was void because the board lacked a quorum to decide the case against the company. The court acknowledged the D.C. Circuit’s decision in NLRB v. Noel Canning Division of Noel Corp., 705 F.3d 490 (D.C. Cir. 2013), and the fact that the U.S. Supreme Court has agreed to review that decision (22 HLR 977, 6/27/13).
Nevertheless, it found Horton never challenged the validity of board quorum. The court also rejected Horton’s argument that the board lacked authority to issue its decision against the company in the absence of a proper delegation of authority to the three-member panel.
NLRA, FAA Have ‘Equal Importance.’ The appeals court turned to NLRB’s finding that Horton violated Section 8(a)(1) of the NLRA by interfering with the right of employees under Section 7 to engage in concerted activity for their mutual aid or protection. Although the NLRB concluded that an individual filing a class or collective action on behalf of employees is engaged in Section 7 activity, and maintaining an employment policy that requires employees to relinquish the statutory right violates Section 8(a)(1), the court found the waiver didn’t affect substantive rights.
The court also found the NLRB couldn’t rely on FAA’s savings clause to support its decision to invalidate the waiver of class procedures in the Horton arbitration agreement. Finally, the court rejected the contention that the NLRA contained a congressional command to ‘‘override’’ the FAA.
Noting the NLRA doesn’t explicitly provide for employee collective actions or procedures for collective claims, the court said ‘‘there is no basis on which to find that the text of the NLRA supports a congressional command to override the FAA.’’
The court also cited Richards v. Ernst & Young LLP, 2013 BL 22217 (9th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013); and Owen v. Bristol Care Inc., 702 F.3d 1050 (8th Cir. 2013), and said ‘‘[e]very one of our sister circuits to consider the issue has either suggested or expressly stated that they would not defer to the NLRB’s rationale, and held arbitration agreements containing class waivers enforceable.’’
Dissent. Graves dissented from the majority’s finding on the legality of the class and collective action waiver. Citing the board’s Horton decision, Graves said he agreed that the agreement interfered with employee rights under the NLRA and that it didn’t conflict with the FAA.
‘‘The Board made it clear that it was not mandating class arbitration in order to protect employees’ rights under the NLRA, but rather was holding that employers may not compel employees to waive their NLRA right to collectively pursue litigation of employment claims in all forums, judicial and arbitral,’’ Graves wrote.
Noting the majority conceded the court’s deference to NLRB decisions interpreting ambiguous statutory provisions, Graves said ‘‘there is authority to support the Board’s analysis’’ and concluded the NLRB’s order against Horton should have been enforced in its entirety.
Ronald W. Chapman, of Ogletree, Deakins, Nash, Smoak & Stewart, in Dallas, argued the case for D.R. Horton Inc. NLRB attorney Kira Dellinger Vol, in Washington, argued for the board.
To contact the reporter on this story: Lawrence E. Dube´ in Washington at ldube@bna.com and Peyton M. Sturges in Washington at psturges@bna.com. To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com.
The opinion is available at http://www.bloomberglaw.com/public/document/DR_Horton_Incorporated_v_NLRB_Docket_No_1260031_5th_Cir_Jan_13_20/3
Reproduced with permission from BNA's Health Law Reporter, 22 HLR 1839 (Dec. 19. 2013). Copyright 2013 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
Sunday, December 29, 2013
Monday, December 9, 2013
Waive that Class Goodbye: The Fifth Circuit Reverses the NLRB on Class Action Waivers
By Patrick J. Hoban*
On December 4, 2013, the Fifth Circuit Court of Appeals, in D.R. Horton, Inc. v. NLRB, No. 12-60031, reversed the National Labor Relations Board ("NLRB") decision that mandatory class and collective action waivers in employment arbitration agreements violate the National Labor Relations Act ("NLRA"). In recent years, the activist Obama-appointed NLRB has invaded non-union employer activities including social media policies, at-will statements in employee handbooks, and workplace investigations. The NLRB has repeatedly held that long-standing and standardized employer practices violate employees' NLRA rights. One such practice is the inclusion of waivers of class and collective actions in mandatory employment arbitration agreements.
In a 2012 decision (which Z&R discussed here), the NLRB started a firestorm when it held that homebuilder D.R. Horton's mandatory arbitration agreement, which included a class and collective action waiver, violated employee rights. Specifically, the NLRB held that employees had a substantive right under Section 7 of the NLRA to bring a class or collective actions as a form of protected concerted activity. Although the NLRB continued its attack on class action waivers in subsequent decisions (which Z&R discussed here), the Second, Eighth, and Ninth Circuit Courts of Appeals each rejected the NLRB's rationale and enforced mandatory arbitration agreements containing class action waivers. See Richards v. Ernst & Young, LLP, No. 11-17530 (9th Cir. Aug. 21, 2013); Sutherland v. Ernst & Young, LLP, 726 F.3d 290 (2d Cir. 2013); Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013).
In its decision, the Fifth Circuit held that the NLRA does not prohibit mandatory arbitration agreements with class action waivers. Contrary to the NLRB, the Court held that the right to class action procedures is not a substantive legal right, but rather a procedural device. Therefore, the Court rejected the NLRB's position that Section 7 of the NLRA includes the right to bring class or collective actions as a protected concerted activity.
The Court further explained that the Federal Arbitration Act ("FAA") establishes a national policy of favoring arbitration to resolve disputes. Under the FAA, arbitration agreements must be enforced as written in the same manner as any other contract. The Court held that because there is no substantive right to bring class or collective actions protected by the NLRA, no grounds existed under the FAA to invalidate D.R. Horton's arbitration agreement. The Court further explained that the NLRB's decision actually disfavored arbitration by sacrificing lower costs and informality in favor of time consuming and drawn-out class action arbitration while leaving employers with very limited rights of appeal. Altogether, the Court concluded, the NLRB's decision would make employers less likely to consider using arbitration to resolve employment disputes.
The Fifth Circuit further held that there is nothing in the text or legislative history of the NLRA revealing a congressional intent that its provisions override the FAA and its clear purpose favoring arbitration.
Notably for employers, the Fifth Circuit affirmed the NLRB's conclusion that D.R. Horton's arbitration agreement violated the NLRA because employees could reasonably interpret its language to prohibit them from filing unfair labor practice charges with the NLRB. Specifically, the language failed to expressly state that employees retained the right to file unfair labor practice charges and suggested that such claims were subject to arbitration. Based on this, the Court upheld the NLRB's order requiring D.R. Horton to rescind and revise its mandatory arbitration policy.
The Fifth Circuit's decision in D.R. Horton provides some light for employers who have or are considering mandatory arbitration agreements prohibiting class arbitration. However, as the NLRB is very likely to appeal the decision to the U.S. Supreme Court, final resolution of this issue is pending. In the meantime, employers that require employees to sign arbitration agreements must ensure that the agreements clearly set forth that employees retain the right to file unfair labor practices and other administrative charges to avoid running afoul of the NLRA.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about arbitration agreements, this decision, or the NLRA, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
On December 4, 2013, the Fifth Circuit Court of Appeals, in D.R. Horton, Inc. v. NLRB, No. 12-60031, reversed the National Labor Relations Board ("NLRB") decision that mandatory class and collective action waivers in employment arbitration agreements violate the National Labor Relations Act ("NLRA"). In recent years, the activist Obama-appointed NLRB has invaded non-union employer activities including social media policies, at-will statements in employee handbooks, and workplace investigations. The NLRB has repeatedly held that long-standing and standardized employer practices violate employees' NLRA rights. One such practice is the inclusion of waivers of class and collective actions in mandatory employment arbitration agreements.
In a 2012 decision (which Z&R discussed here), the NLRB started a firestorm when it held that homebuilder D.R. Horton's mandatory arbitration agreement, which included a class and collective action waiver, violated employee rights. Specifically, the NLRB held that employees had a substantive right under Section 7 of the NLRA to bring a class or collective actions as a form of protected concerted activity. Although the NLRB continued its attack on class action waivers in subsequent decisions (which Z&R discussed here), the Second, Eighth, and Ninth Circuit Courts of Appeals each rejected the NLRB's rationale and enforced mandatory arbitration agreements containing class action waivers. See Richards v. Ernst & Young, LLP, No. 11-17530 (9th Cir. Aug. 21, 2013); Sutherland v. Ernst & Young, LLP, 726 F.3d 290 (2d Cir. 2013); Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013).
In its decision, the Fifth Circuit held that the NLRA does not prohibit mandatory arbitration agreements with class action waivers. Contrary to the NLRB, the Court held that the right to class action procedures is not a substantive legal right, but rather a procedural device. Therefore, the Court rejected the NLRB's position that Section 7 of the NLRA includes the right to bring class or collective actions as a protected concerted activity.
The Court further explained that the Federal Arbitration Act ("FAA") establishes a national policy of favoring arbitration to resolve disputes. Under the FAA, arbitration agreements must be enforced as written in the same manner as any other contract. The Court held that because there is no substantive right to bring class or collective actions protected by the NLRA, no grounds existed under the FAA to invalidate D.R. Horton's arbitration agreement. The Court further explained that the NLRB's decision actually disfavored arbitration by sacrificing lower costs and informality in favor of time consuming and drawn-out class action arbitration while leaving employers with very limited rights of appeal. Altogether, the Court concluded, the NLRB's decision would make employers less likely to consider using arbitration to resolve employment disputes.
The Fifth Circuit further held that there is nothing in the text or legislative history of the NLRA revealing a congressional intent that its provisions override the FAA and its clear purpose favoring arbitration.
Notably for employers, the Fifth Circuit affirmed the NLRB's conclusion that D.R. Horton's arbitration agreement violated the NLRA because employees could reasonably interpret its language to prohibit them from filing unfair labor practice charges with the NLRB. Specifically, the language failed to expressly state that employees retained the right to file unfair labor practice charges and suggested that such claims were subject to arbitration. Based on this, the Court upheld the NLRB's order requiring D.R. Horton to rescind and revise its mandatory arbitration policy.
The Fifth Circuit's decision in D.R. Horton provides some light for employers who have or are considering mandatory arbitration agreements prohibiting class arbitration. However, as the NLRB is very likely to appeal the decision to the U.S. Supreme Court, final resolution of this issue is pending. In the meantime, employers that require employees to sign arbitration agreements must ensure that the agreements clearly set forth that employees retain the right to file unfair labor practices and other administrative charges to avoid running afoul of the NLRA.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about arbitration agreements, this decision, or the NLRA, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
Monday, November 25, 2013
EMPLOYMENT LAW QUARTERLY | Fall 2013, Volume XV, Issue iii
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Given the recent number of large-scale acts of violence, many employers are concerned about workplace safety and limiting access to firearms on company property. In an effort to prevent workplace violence, employers have increased security and banned weapons. In many states, however, “bring your gun to work” laws limit employers from banning guns in their parking lots. Employers affected by these laws are responding in a number of ways, including lobbying for their rights to ban guns on company property and developing policies and procedures to help prevent incidents of workplace violence.
There are 22 states that currently have some form of a “bring your gun to work” law, which allow employers to ban guns in the workplace but prohibit employers from banning guns in the parking lot. Two states, Missouri and North Carolina, have laws that only apply to state employers. Seven states (Florida, Georgia, Indiana, Kansas, Maine, Mississippi, and Texas) have laws that apply to all employers, while 13 states (Alabama, Alaska, Arizona, Illinois, Kentucky, Louisiana, Minnesota, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and Wisconsin) have laws that apply to all property owners.
While some argue that ready access to firearms makes workplaces safer, some employers believe the availability of guns in or near the workplace increases the odds of violent and potentially deadly incidents. Stressful events like terminations of employment occur on a regular basis. Ready access to a firearm in these situations arguably increases the possibility that an enraged or disgruntled individual may use a gun in an act of workplace violence. Therefore, many employers believe that “bring your gun to work” laws impede their ability to institute measures to minimize the risk of potentially deadly workplace incidents.
Employers in states that have no “bring your gun to work” law are free to ban employees from bringing guns onto their property, including the parking lots. Employers in states with “bring your gun to work” laws need to make sure that their policies do not violate these laws. In either situation, employers should consider implementing measures and policies, including updating or increasing security and employee training, which may reduce violence and increase safety in the workplace.
*David R. Vance practices in all areas of labor and employment law. He has extensive experience counseling employers as to workplace safety and related issues. For more information about this ever changing area of the law, please contact >David (drv@zrlaw.com) at 216.696.4441.
The Supreme Court’s decision in U.S. v. Windsor, 133 S.Ct. 2675 (2013) to strike down the definition of marriage in Section 3 of the Defense of Marriage Act (“DOMA”) created uncertainty for employers. A number of laws and federal programs, including the Family and Medical Leave Act (“FMLA”), relied on DOMA’s definition of marriage as that between a man and woman. After the Supreme Court held that definition to be unconstitutional, it was, and in some cases continues to be, unclear how laws and programs that relied on DOMA’s definition apply to same-sex spouses. Recently, the federal government and the Department of Labor (“DOL”) in particular have started to address the uncertainty that resulted from the Windsor decision.
The FMLA is one of the major laws that relied upon DOMA’s definition of marriage. Among other things, the FMLA allows eligible employees to take a leave of absence from employment to care for a family member that has a serious health condition. A spouse is a family member under the FMLA. While the FMLA defines a spouse as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides,” 29 C.F.R. 825.102, the DOL stated in a 1998 opinion letter that a “spouse” could only be a member of the opposite sex. Thus, even if a same-sex couple was legally married in New York, they would have been denied FMLA leave because the federal government, under DOMA, did not recognize same-sex marriage.
After the Windsor decision struck down DOMA’s definition of marriage, there were two possible ways to apply the FMLA (and similar statutes) to same-sex couples. The first approach is referred to as the “State of Residency” rule in which the federal government would merely adopt each state’s definition of marriage when enforcing its programs in that state. For example, if a same-sex couple is married in New York, and they request FMLA leave for a sick spouse while they live in New York, the FMLA leave should be granted because New York recognizes same-sex marriage. The second approach is referred to as the “State of Celebration” rule. Under this rule, the federal government would adopt the spousal definition of the state in which the individual was married. For example, if a same-sex couple is married in New York and then subsequently moves to Ohio, the couple’s marriage would still be viewed as legitimate by the federal government even though Ohio does not recognize same-sex marriage. Meanwhile, this same couple’s marriage would not be recognized under the “State of Residency” rule because Ohio, the couple’s state of residency, does not recognize same-sex marriage.
The DOL recently released two pieces of guidance that shed light on the application of two different federal laws to same-sex spouses. First, in Fact Sheet #28F, the DOL applied the “State of Residency” rule to the FMLA. The Fact Sheet contains a definition section under which “spouse” is defined as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage” (emphasis added). Therefore, employers in states that recognize same-sex marriage must treat same-sex married couples the same as heterosexual married couples under the FMLA. Employees residing in states that do not recognize same-sex marriage are not eligible to receive FMLA leave for same-sex spouses even if they moved from a state that allows same-sex marriage.
Contrary to the approach taken under the FMLA, the DOL adopted the “State of Celebration” rule for employee benefit plans under the Employee Retirement Income Security Act (“ERISA”). In Technical Release No. 2013-04, the DOL stated that for ERISA purposes, the term “spouse” refers to “any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages.” Therefore, under ERISA, same-sex married employees must be treated the same as heterosexual married couples even if the employee’s state of residence does not recognize same-sex marriage.
In addition to the guidance from the DOL, the Internal Revenue Service (“IRS”) recently announced that same-sex married couples may file joint federal tax returns in IRS Revenue Ruling 2013-17. In reaching this conclusion, the IRS applied the “State of Celebration” standard. As such, all same-sex married couples are entitled to file jointly, regardless of where they live, so long as they were married in a state that allows same-sex marriage.
In light of the uncertainty following the Windsor decision, employers should review their employment policies and practices to ensure — to the extent possible — that they are in compliance with the laws that were affected by the decision. While not binding on the courts, the DOL and the IRS have provided some guidance to employers. Employers should take a proactive approach in order to keep up-to-date with the latest developments and to avoid future liability.
*Emily A. Smith, practices in all areas of employment law and has extensive experience helping employers comply with the FMLA. If you have questions about how the Windsor decision impacts your company, please contact Zashin & Rich at 614.224.4441.
With a majority of states having workplace smoking bans, you may have thought that the days of an employee kicking back in his or her office chair and taking a few puffs were a thing of the past. However, at least for the time being, this may not be the case. With the advent of e-cigarettes, some smokers may rejoice as workplace smoking bans struggle to keep up with advances in technology.
Ohio’s smoking ban, which can be found at Ohio Revised Code Section 3794, generally prohibits “smoking” in any enclosed workplace or in areas directly adjacent to the entry or exit of a workplace. “Smoking” is defined as “inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other lighted smoking device for burning tobacco or any other plant.” Although the definition sounds comprehensive, it does not extend to e-cigarettes because they operate by vaporizing (not burning) liquid nicotine (not tobacco). Touted by the e-cigarette industry as a safer alternative to traditional cigarettes, these battery operated devices emit a relatively scentless vapor that looks similar to cigarette smoke.
States and employers have responded to e-cigarettes in a variety of manners. In January 2010, New Jersey amended its workplace smoking ban, the New Jersey Smoke Free Air Act, to ban e-cigarettes in the workplace. Other states have also passed laws restricting the sale of e-cigarettes to minors. A number of employers also started imposing penalties, in the form of fees and increased health insurance premiums, on employees who use e-cigarettes.
Employers wishing to prevent employees from using e-cigarettes in the workplace may ban their use, even in areas where state or local municipality smoking laws do not apply to e-cigarettes. Employers who do not mind e-cigarette use should make sure that such use does not violate their state’s law or any local ordinances before permitting e-cigarette use in the workplace. Either way, as e-cigarettes become more popular, employers should be cognizant of the potential legal issues that they pose and plan accordingly, whether that be revising or instituting a new workplace smoking policy or seeking legal advice on applicable state and local laws.
*David Frantz practices in all areas of employment law. If you have questions about state or local smoking bans or workplace smoking policies, please contact David (dpf@zrlaw.com) at 216.696.4441.
Employee leaves of absence under the Family and Medical Leave Act (“FMLA”) continue to increase, which in turn, increases an employer’s vulnerability to claims related to such leave. Employers must carefully evaluate all employee requests for FMLA leave. The following practices and procedures may help employers effectively administer FMLA leave while also reducing FMLA leave abuse.
It is important that employers draft, enforce, and provide employees with a copy of company leave of absence policies and procedures. Specifically, employers should notify employees of their rights under the FMLA and the proper procedures to request leave. Employers must display an FMLA information poster at the workplace. This information also must be available in the employee handbook, or if the employer does not have a handbook, must be distributed to employees when they are hired.
Handling FMLA leave requests is a complicated process that can lead to costly mistakes. Employers should contact counsel for advice and assistance in developing policies and procedures that will help reduce FMLA leave abuse and limit potential liability.
*Stephen Zashin, an OSBA Certified Specialist in Labor and Employment Law and a Best Lawyer in America (2014), is the head of the firm’s Employment and Labor Group. Stephen’s practice encompasses all areas of employment litigation. He has extensive experience helping employers navigate through FMLA leave administration, certification, and other employment issues. For more information about this ever changing area, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
In a counter-intuitive decision, the Sixth Circuit Court of Appeals recently addressed the ambiguity under the Family and Medical Leave Act (“FMLA”) as to when paid-volunteers should be considered employees. In Mendel v. City of Gibraltar, 727 F.3d 565 (2013), the court held that a city’s paid-volunteer firefighters were employees for purposes of the FMLA. This decision impacts smaller cities and other political subdivisions that utilize paid-volunteer forces and previously thought these forces were not subject to the FMLA.
In order for an employer to be subject to claims under the FMLA, it must have 50 or more “employees” working within a 75 mile radius. Thanks to the rather imprecise definitions used in the Fair Labor Standards Act (“FLSA”)—upon which the FMLA relies for its definitions of terms like “employ” and “employee”—the United States Supreme Court developed an “economic realities” test to determine who qualifies as an employee under the Acts. This test takes a case-by-case approach, weighing the circumstances of the business activity as a whole instead of relying on isolated factors.
In Mendel, a dispatcher for the city’s police department claimed that he was terminated in violation of the FMLA. The city argued that its employees were not covered by the FMLA because the city only employed 41 people, not 50 as is necessary for the FMLA to apply. The city contended that its 20-35 paid-volunteer firefighters were not employees
In determining whether the volunteer firefighters were employees, the court focused heavily on the amount of wages paid to the volunteer firefighters. Under the FLSA and the FMLA, volunteers for public agencies are excluded from the definition of “employee” if they are not paid or only receive a nominal fee for their services. The firefighters at issue in Mendel received $15 per hour for responding to calls and maintaining equipment while nearby communities paid full-time firefighters wages ranging from $14 to $17 per hour. In light of the “economic realities” of the situation, the court found that the “substantial compensation” paid to the volunteer firefighters was not a nominal fee, and as such, the firefighters were employees.
The court did not weigh other factors that would support a finding against employee status as heavily. For example, the volunteer firefighters were not required, whatsoever, to actually respond to any emergency calls, they had no consistent schedules or set shifts, they did not staff a fire station, and they maintained other employment. Despite the clear lack of control by the city over these volunteer firefighters, the court found that these factors were insufficient to overcome the fact that the city paid the firefighters substantial wages for their services.
In light of the Mendel decision, employers using paid-volunteer forces should reevaluate whether they are truly volunteers. If not, additional laws and regulations may apply to the employer when including its paid-volunteer forces as employees. Although courts will determine employee status on a case-by-case basis, this decision sheds light on the factors that the Sixth Circuit and other courts may emphasize in their determinations. Concerned employers should seek advice from legal counsel in determining potential liability under the FMLA, the FLSA, and other statutes.
*Jonathan Downes is an OSBA Certified Specialist in Employment and Labor Law and a Best Lawyer in America (2014). He has extensive experience developing policies for and advising municipalities and public entities. For more information about this article or general issues please contact Jonathan (jjd@zrlaw.com) at 614.224.4441.
The federal minimum wage will remain at $7.25 for non-tipped employees and $2.13 for tipped employees in 2014. The following states though are increasing their minimum wage as follows:
George Crisci, Jon Dileno, Jonathan Downes, and Stephen Zashin of the firm's Employment and Labor Group were all named Best Lawyers in America in 2014. The firm congratulates these four attorneys as well as all of its attorneys that contribute to the firm’s labor and employment practice. The firm represents clients from publicly traded national corporations to small businesses in matters ranging from discrimination and harassment complaints to workers' compensation.
Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers® is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers® is considered a singular honor.
Sunday, February 2, 2014
Jonathan Downes presents “Advance Techniques in Arbitration Matters” at the Ohio Public Employers Labor Relations Association’s Annual Training Conference. For more details, go to www.ohpelra.org.
Thursday, February 20, 2014
Stephen Zashin presents “HR Issues” before the American Payroll Association Greater Cleveland Chapter. For more details, go to www.americanpayroll.org.
Thursday, April 17, 2014
Jonathan Downes speaks at the Labor Relations Information Systems conference on “Collective Bargaining for Public Safety Personnel” in Las Vegas. For more details, go to www.lris.com/lris-seminars/.
Tuesday, April 29, 2014
Jonathan Downes presents “Update on Employment and Labor Issues Affecting Law Enforcement” and “Collective Bargaining and Arbitration Decisions for Police Chiefs” at the Ohio Association of Chiefs of Police annual Chiefs In-Service. For more details, go to www.oacp.org/annualconf/chiefs.html.
Wednesday, May 21, 2014
George Crisci speaks at the National Business Institute’s Employee Documentation, Discipline, and Discharge seminar in Akron entitled, “Special Concerns When Dealing with Union Environments.”
- Employers Struggle with “Bring Your Gun to Work” Laws
- “Marriage” After Windsor: How to Resolve the Uncertainty Surrounding Same-Sex Marriage with Respect to Employment Benefits
- Don’t E-Smoke ‘em If You Got ‘em: E-Cigarettes in the Workplace
- FMLA Certification: Proactive Measures to Reduce Fraud and Abuse of FMLA Leave
- Clearing Away the Smoke: When a “Volunteer” is Really an “Employee” under the FLSA and FMLA
- State Minimum Wage Increases for 2014
- Z&R Shorts
Employers Struggle with “Bring Your Gun to Work” Laws
By David R. Vance*Given the recent number of large-scale acts of violence, many employers are concerned about workplace safety and limiting access to firearms on company property. In an effort to prevent workplace violence, employers have increased security and banned weapons. In many states, however, “bring your gun to work” laws limit employers from banning guns in their parking lots. Employers affected by these laws are responding in a number of ways, including lobbying for their rights to ban guns on company property and developing policies and procedures to help prevent incidents of workplace violence.
There are 22 states that currently have some form of a “bring your gun to work” law, which allow employers to ban guns in the workplace but prohibit employers from banning guns in the parking lot. Two states, Missouri and North Carolina, have laws that only apply to state employers. Seven states (Florida, Georgia, Indiana, Kansas, Maine, Mississippi, and Texas) have laws that apply to all employers, while 13 states (Alabama, Alaska, Arizona, Illinois, Kentucky, Louisiana, Minnesota, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and Wisconsin) have laws that apply to all property owners.
While some argue that ready access to firearms makes workplaces safer, some employers believe the availability of guns in or near the workplace increases the odds of violent and potentially deadly incidents. Stressful events like terminations of employment occur on a regular basis. Ready access to a firearm in these situations arguably increases the possibility that an enraged or disgruntled individual may use a gun in an act of workplace violence. Therefore, many employers believe that “bring your gun to work” laws impede their ability to institute measures to minimize the risk of potentially deadly workplace incidents.
Employers in states that have no “bring your gun to work” law are free to ban employees from bringing guns onto their property, including the parking lots. Employers in states with “bring your gun to work” laws need to make sure that their policies do not violate these laws. In either situation, employers should consider implementing measures and policies, including updating or increasing security and employee training, which may reduce violence and increase safety in the workplace.
*David R. Vance practices in all areas of labor and employment law. He has extensive experience counseling employers as to workplace safety and related issues. For more information about this ever changing area of the law, please contact >David (drv@zrlaw.com) at 216.696.4441.
“Marriage” After Windsor: How to Resolve the Uncertainty Surrounding Same-Sex Marriage with Respect to Employment Benefits
By Emily Smith*The Supreme Court’s decision in U.S. v. Windsor, 133 S.Ct. 2675 (2013) to strike down the definition of marriage in Section 3 of the Defense of Marriage Act (“DOMA”) created uncertainty for employers. A number of laws and federal programs, including the Family and Medical Leave Act (“FMLA”), relied on DOMA’s definition of marriage as that between a man and woman. After the Supreme Court held that definition to be unconstitutional, it was, and in some cases continues to be, unclear how laws and programs that relied on DOMA’s definition apply to same-sex spouses. Recently, the federal government and the Department of Labor (“DOL”) in particular have started to address the uncertainty that resulted from the Windsor decision.
The FMLA is one of the major laws that relied upon DOMA’s definition of marriage. Among other things, the FMLA allows eligible employees to take a leave of absence from employment to care for a family member that has a serious health condition. A spouse is a family member under the FMLA. While the FMLA defines a spouse as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides,” 29 C.F.R. 825.102, the DOL stated in a 1998 opinion letter that a “spouse” could only be a member of the opposite sex. Thus, even if a same-sex couple was legally married in New York, they would have been denied FMLA leave because the federal government, under DOMA, did not recognize same-sex marriage.
After the Windsor decision struck down DOMA’s definition of marriage, there were two possible ways to apply the FMLA (and similar statutes) to same-sex couples. The first approach is referred to as the “State of Residency” rule in which the federal government would merely adopt each state’s definition of marriage when enforcing its programs in that state. For example, if a same-sex couple is married in New York, and they request FMLA leave for a sick spouse while they live in New York, the FMLA leave should be granted because New York recognizes same-sex marriage. The second approach is referred to as the “State of Celebration” rule. Under this rule, the federal government would adopt the spousal definition of the state in which the individual was married. For example, if a same-sex couple is married in New York and then subsequently moves to Ohio, the couple’s marriage would still be viewed as legitimate by the federal government even though Ohio does not recognize same-sex marriage. Meanwhile, this same couple’s marriage would not be recognized under the “State of Residency” rule because Ohio, the couple’s state of residency, does not recognize same-sex marriage.
The DOL recently released two pieces of guidance that shed light on the application of two different federal laws to same-sex spouses. First, in Fact Sheet #28F, the DOL applied the “State of Residency” rule to the FMLA. The Fact Sheet contains a definition section under which “spouse” is defined as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage” (emphasis added). Therefore, employers in states that recognize same-sex marriage must treat same-sex married couples the same as heterosexual married couples under the FMLA. Employees residing in states that do not recognize same-sex marriage are not eligible to receive FMLA leave for same-sex spouses even if they moved from a state that allows same-sex marriage.
Contrary to the approach taken under the FMLA, the DOL adopted the “State of Celebration” rule for employee benefit plans under the Employee Retirement Income Security Act (“ERISA”). In Technical Release No. 2013-04, the DOL stated that for ERISA purposes, the term “spouse” refers to “any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages.” Therefore, under ERISA, same-sex married employees must be treated the same as heterosexual married couples even if the employee’s state of residence does not recognize same-sex marriage.
In addition to the guidance from the DOL, the Internal Revenue Service (“IRS”) recently announced that same-sex married couples may file joint federal tax returns in IRS Revenue Ruling 2013-17. In reaching this conclusion, the IRS applied the “State of Celebration” standard. As such, all same-sex married couples are entitled to file jointly, regardless of where they live, so long as they were married in a state that allows same-sex marriage.
In light of the uncertainty following the Windsor decision, employers should review their employment policies and practices to ensure — to the extent possible — that they are in compliance with the laws that were affected by the decision. While not binding on the courts, the DOL and the IRS have provided some guidance to employers. Employers should take a proactive approach in order to keep up-to-date with the latest developments and to avoid future liability.
*Emily A. Smith, practices in all areas of employment law and has extensive experience helping employers comply with the FMLA. If you have questions about how the Windsor decision impacts your company, please contact Zashin & Rich at 614.224.4441.
Don’t E-Smoke ‘em If You Got ‘em: E-Cigarettes in the Workplace
By David Frantz*With a majority of states having workplace smoking bans, you may have thought that the days of an employee kicking back in his or her office chair and taking a few puffs were a thing of the past. However, at least for the time being, this may not be the case. With the advent of e-cigarettes, some smokers may rejoice as workplace smoking bans struggle to keep up with advances in technology.
Ohio’s smoking ban, which can be found at Ohio Revised Code Section 3794, generally prohibits “smoking” in any enclosed workplace or in areas directly adjacent to the entry or exit of a workplace. “Smoking” is defined as “inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other lighted smoking device for burning tobacco or any other plant.” Although the definition sounds comprehensive, it does not extend to e-cigarettes because they operate by vaporizing (not burning) liquid nicotine (not tobacco). Touted by the e-cigarette industry as a safer alternative to traditional cigarettes, these battery operated devices emit a relatively scentless vapor that looks similar to cigarette smoke.
States and employers have responded to e-cigarettes in a variety of manners. In January 2010, New Jersey amended its workplace smoking ban, the New Jersey Smoke Free Air Act, to ban e-cigarettes in the workplace. Other states have also passed laws restricting the sale of e-cigarettes to minors. A number of employers also started imposing penalties, in the form of fees and increased health insurance premiums, on employees who use e-cigarettes.
Employers wishing to prevent employees from using e-cigarettes in the workplace may ban their use, even in areas where state or local municipality smoking laws do not apply to e-cigarettes. Employers who do not mind e-cigarette use should make sure that such use does not violate their state’s law or any local ordinances before permitting e-cigarette use in the workplace. Either way, as e-cigarettes become more popular, employers should be cognizant of the potential legal issues that they pose and plan accordingly, whether that be revising or instituting a new workplace smoking policy or seeking legal advice on applicable state and local laws.
*David Frantz practices in all areas of employment law. If you have questions about state or local smoking bans or workplace smoking policies, please contact David (dpf@zrlaw.com) at 216.696.4441.
FMLA Certification: Proactive Measures to Reduce Fraud and Abuse of FMLA Leave
By Stephen Zashin*Employee leaves of absence under the Family and Medical Leave Act (“FMLA”) continue to increase, which in turn, increases an employer’s vulnerability to claims related to such leave. Employers must carefully evaluate all employee requests for FMLA leave. The following practices and procedures may help employers effectively administer FMLA leave while also reducing FMLA leave abuse.
Require Employees that Request FMLA Leave to Obtain Medical Certification
The medical certification process can help employers avoid granting improper FMLA requests or denying legitimate ones. Employers who require certification must provide notice to an employee in the Rights and Responsibilities Notice provided to employees with their Eligibility Notice. Any employee requesting medical leave must provide his or her employer with a complete and sufficient medical certification if the employer requests it. The employee must pay all costs associated with the initial medical certification. A medical certification may include: health care provider contact information; the date the health condition commenced; detailed information about the condition; details about how the condition prevents the employee from performing the essential functions of his or her job; in cases where the employee is taking leave to care for a family member, information about the care that is needed; and for intermittent leave, information about the condition that calls for intermittent leave and details concerning the dates of leave or frequency of incapacity. If an employee who has requested leave fails to provide the requested certification, the employer may deny the employee’s request.Maintain Clear and Detailed Job Requirements and Keep Track of All Absences
Employers should maintain written job requirements and duties for each position at the company. When an employee requests FMLA leave, employers can attach these requirements to the certification forms that the employee submits to a health care provider. Health care providers use the job requirements to determine if the employee requesting leave can perform the essential functions of his or her job despite the condition. Employers should also track all employee absences. Work attendance statistics can be extremely helpful in detecting fraudulent leave requests. Employers can use this information during the certification process to verify with health care providers that an employee’s absences are an expected result of the condition at issue.Authenticate and Clarify any Ambiguities that Appear on an Employee’s Certification
Occasionally, an employee will provide his or her employer with an incomplete or ambiguous medical certification. If so, the employer must provide the employee with written notice of any deficiencies and allow the employee to clarify ambiguities and correct deficiencies on the medical certification. Once an employee provides a complete certification, the employer can no longer request additional information from the employee’s health care provider. However, there are certain avenues through which the employer can seek clarification or authentication of the certification from the employee’s health care provider. Specifically, the employer may use: (1) a human resource professional; (2) a leave administrator; or (3) another health care provider to contact the issuing health care provider. It is critical that the employee’s immediate supervisor or someone to whom the employee reports to or works with directly does not contact the health care provider.Require Employees with Questionable Certificates to Obtain a Second Opinion
If the employer contacts the health care provider and still believes the employee’s certification is unclear or invalid, the employer may require the employee to obtain a second medical certification from a different health care provider. The employer is responsible for choosing the second health care provider; however, this provider cannot be one the employer regularly utilizes. The employer bears the cost for the second medical certification. If inconsistencies arise between the first and second certification, the employer may request a third and final certification. The employer also must pay for the cost of this certification. Although second and third medical certifications come at a cost to employers, employers may request them if they believe the original certification is fraudulent or ambiguous.Require Employees that Request Additional Leave to Get Recertified
Employers may require an employee on leave to obtain recertification before extending the employee’s leave. Employers may request recertification of an employee every 30 days unless the employee suffers from a serious health condition that impairs his or her ability to perform job requirements for a period of time exceeding 30 days. If the certification indicates that the minimum duration is more than 30 days, the employer must wait until the minimum duration expires before requesting recertification. An employer may request recertification after a period of less than 30 days if: (1) the employee requests an extension of leave; (2) the employee’s circumstances have changed since the previous certification; or (3) the employer has reason to believe that the previous medical certification was invalid. By requesting employee recertification, employers can help determine whether an employee’s original issue still inhibits his or her job performance. Generally, employers must allow the employee at least 15 days to provide the recertification, but the employee bears the expense of the recertification.Require Employees that are Returning to Work from FMLA Leave to Obtain a “Fitness for Duty” Certification
Requiring employees to obtain a fitness for duty certification can help prevent employees from injuring themselves or others in an accident caused by a premature return to work. Employers may request a fitness for duty certificate for the particular health condition precipitating the employee’s need for leave only. Employers must provide notice to employees in their Designation Notices if they require employees to obtain fitness for duty certification before returning to work, and whether the certification must address an employee’s ability to preform the essential functions of his or her job. Employers should provide written job descriptions or a list of the essential functions of the employee’s position to employees with the Designation Notice. The employee is responsible for paying all costs associated with this certification. The employer may contact the health care provider to authenticate or clarify the certification in the same manner as the original medical certification. However, the employer may not request a second or third opinion. Also, if an employee’s return to work is governed by a collective bargaining agreement, the employer should abide by such agreement before proceeding with a request for a fitness for duty certification.It is important that employers draft, enforce, and provide employees with a copy of company leave of absence policies and procedures. Specifically, employers should notify employees of their rights under the FMLA and the proper procedures to request leave. Employers must display an FMLA information poster at the workplace. This information also must be available in the employee handbook, or if the employer does not have a handbook, must be distributed to employees when they are hired.
Handling FMLA leave requests is a complicated process that can lead to costly mistakes. Employers should contact counsel for advice and assistance in developing policies and procedures that will help reduce FMLA leave abuse and limit potential liability.
*Stephen Zashin, an OSBA Certified Specialist in Labor and Employment Law and a Best Lawyer in America (2014), is the head of the firm’s Employment and Labor Group. Stephen’s practice encompasses all areas of employment litigation. He has extensive experience helping employers navigate through FMLA leave administration, certification, and other employment issues. For more information about this ever changing area, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
Clearing Away the Smoke: When a “Volunteer” is Really an “Employee” under the FLSA and FMLA
By Jonathan Downes*In a counter-intuitive decision, the Sixth Circuit Court of Appeals recently addressed the ambiguity under the Family and Medical Leave Act (“FMLA”) as to when paid-volunteers should be considered employees. In Mendel v. City of Gibraltar, 727 F.3d 565 (2013), the court held that a city’s paid-volunteer firefighters were employees for purposes of the FMLA. This decision impacts smaller cities and other political subdivisions that utilize paid-volunteer forces and previously thought these forces were not subject to the FMLA.
In order for an employer to be subject to claims under the FMLA, it must have 50 or more “employees” working within a 75 mile radius. Thanks to the rather imprecise definitions used in the Fair Labor Standards Act (“FLSA”)—upon which the FMLA relies for its definitions of terms like “employ” and “employee”—the United States Supreme Court developed an “economic realities” test to determine who qualifies as an employee under the Acts. This test takes a case-by-case approach, weighing the circumstances of the business activity as a whole instead of relying on isolated factors.
In Mendel, a dispatcher for the city’s police department claimed that he was terminated in violation of the FMLA. The city argued that its employees were not covered by the FMLA because the city only employed 41 people, not 50 as is necessary for the FMLA to apply. The city contended that its 20-35 paid-volunteer firefighters were not employees
In determining whether the volunteer firefighters were employees, the court focused heavily on the amount of wages paid to the volunteer firefighters. Under the FLSA and the FMLA, volunteers for public agencies are excluded from the definition of “employee” if they are not paid or only receive a nominal fee for their services. The firefighters at issue in Mendel received $15 per hour for responding to calls and maintaining equipment while nearby communities paid full-time firefighters wages ranging from $14 to $17 per hour. In light of the “economic realities” of the situation, the court found that the “substantial compensation” paid to the volunteer firefighters was not a nominal fee, and as such, the firefighters were employees.
The court did not weigh other factors that would support a finding against employee status as heavily. For example, the volunteer firefighters were not required, whatsoever, to actually respond to any emergency calls, they had no consistent schedules or set shifts, they did not staff a fire station, and they maintained other employment. Despite the clear lack of control by the city over these volunteer firefighters, the court found that these factors were insufficient to overcome the fact that the city paid the firefighters substantial wages for their services.
In light of the Mendel decision, employers using paid-volunteer forces should reevaluate whether they are truly volunteers. If not, additional laws and regulations may apply to the employer when including its paid-volunteer forces as employees. Although courts will determine employee status on a case-by-case basis, this decision sheds light on the factors that the Sixth Circuit and other courts may emphasize in their determinations. Concerned employers should seek advice from legal counsel in determining potential liability under the FMLA, the FLSA, and other statutes.
*Jonathan Downes is an OSBA Certified Specialist in Employment and Labor Law and a Best Lawyer in America (2014). He has extensive experience developing policies for and advising municipalities and public entities. For more information about this article or general issues please contact Jonathan (jjd@zrlaw.com) at 614.224.4441.
State Minimum Wage Increases for 2014
By George S. Crisci*The federal minimum wage will remain at $7.25 for non-tipped employees and $2.13 for tipped employees in 2014. The following states though are increasing their minimum wage as follows:
| 2014 STATE MINIMUM WAGE INCREASES | ||||
| State | Non-tipped | Increase | Tipped | Increase |
Arizona
|
$7.90
|
$0.10
|
$4.90
|
$0.10
|
California†
|
$9.00
|
$1.00
|
N/A
|
N/A
|
Colorado††
|
$8.00
|
$0.22
|
$4.98
|
$0.22
|
Connecticut
|
$8.70
|
$0.45
|
(No change)
|
|
Florida
|
$7.93
|
$0.14
|
$4.91
|
$0.14
|
Missouri
|
$7.50
|
$0.15
|
$3.75
|
$0.08
|
Montana
|
$7.90
|
$0.10
|
N/A
|
N/A
|
New Jersey
|
$8.25
|
$1.00
|
(No change)
|
|
New York
|
$8.00
|
$0.75
|
(Varies by industry)
|
|
Ohio*
|
$7.95
|
$0.10
|
$3.98
|
$0.05
|
Oregon
|
$9.10
|
$0.15
|
N/A
|
N/A
|
Rhode Island
|
$8.00
|
$0.25
|
(No change)
|
|
Vermont
|
$8.73
|
$0.13
|
$4.23
|
$0.06
|
Washington
|
$9.32
|
$0.13
|
N/A
|
N/A
|
†Not effective until July 1, 2014.
††Currently proposed; final rules pending. *Only applies to employers with annual gross receipts of more than $292,000.00. |
||||
*George S. Crisci, an OSBA Certified Specialist in
Employment and Labor Law and a Best Lawyer in America (2014), has
extensive knowledge of wage and hour laws. For more information about
changes to the minimum wage or your labor and employment law needs,
please contact George (gsc@zrlaw.com) at 216.696.4441.
Z&R Shorts
Best Lawyers ® Best Law Firms
Zashin & Rich Co., L.P.A. is pleased to announce that the firm's Employment and Labor Group has received First Tier ranking in Employment Law - Management in the Cleveland Region and Labor Law - Management in both the Cleveland and Columbus Regions by U.S. News - Best Lawyers® “Best Law Firms” in 2014.George Crisci, Jon Dileno, Jonathan Downes, and Stephen Zashin of the firm's Employment and Labor Group were all named Best Lawyers in America in 2014. The firm congratulates these four attorneys as well as all of its attorneys that contribute to the firm’s labor and employment practice. The firm represents clients from publicly traded national corporations to small businesses in matters ranging from discrimination and harassment complaints to workers' compensation.
Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers® is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers® is considered a singular honor.
Zashin & Rich is pleased to announce the addition of David Frantz to the firm’s Employment and Labor Group in its Cleveland office.
David’s practice encompasses all areas of employment and labor law, including employment discrimination, retaliation, and labor relations. As a student at Case Western Reserve University School of Law, David served as an editor for the Case Western Reserve Law Review and received an award for excelling in the study of labor and employment law. Prior to joining Z&R, David externed with the United States Equal Employment Opportunity Commission and Judge Joan Synenberg at the Cuyahoga County Court of Common Pleas.Upcoming Speaking Engagements
Sunday, February 2, 2014
Jonathan Downes presents “Advance Techniques in Arbitration Matters” at the Ohio Public Employers Labor Relations Association’s Annual Training Conference. For more details, go to www.ohpelra.org.
Thursday, February 20, 2014
Stephen Zashin presents “HR Issues” before the American Payroll Association Greater Cleveland Chapter. For more details, go to www.americanpayroll.org.
Thursday, April 17, 2014
Jonathan Downes speaks at the Labor Relations Information Systems conference on “Collective Bargaining for Public Safety Personnel” in Las Vegas. For more details, go to www.lris.com/lris-seminars/.
Tuesday, April 29, 2014
Jonathan Downes presents “Update on Employment and Labor Issues Affecting Law Enforcement” and “Collective Bargaining and Arbitration Decisions for Police Chiefs” at the Ohio Association of Chiefs of Police annual Chiefs In-Service. For more details, go to www.oacp.org/annualconf/chiefs.html.
Wednesday, May 21, 2014
George Crisci speaks at the National Business Institute’s Employee Documentation, Discipline, and Discharge seminar in Akron entitled, “Special Concerns When Dealing with Union Environments.”
Wednesday, November 20, 2013
OSHA Compliance Deadline Approaching: Employers Must Train Employees on the Revised Hazard Communication Standard by December 1, 2013
*By Scott Coghlan
Recently, the Occupational Safety and Health Administration (“OSHA”) revised its Hazardous Communication Standard (“HCS”). The revised HCS introduces new labeling requirements for hazardous chemicals in the workplace and standardized Safety Data Sheets (formerly called Material Safety Data Sheets). The revised HCS will be implemented in phases from December 1, 2013 to June 1, 2016. For the first compliance deadline, December 1, 2013, employers must make sure that their employees are trained on the new labels and Safety Data Sheets.
A detailed OSHA Brief on the new labels can be found at:
https://www.osha.gov/Publications/OSHA3636.pdf.
While employers are not required to comply with the new labeling requirements until June 1, 2015, they are free to start using the new labels before that date. However, employers must train their employees on the new labels before December 1, 2013.
As a part of the new hazardous chemical label training, employers must train their employees on the following information included in the new labels: (1) the product identifier, which may be in the form of the chemical’s name or a code or batch number; (2) the signal word identifying the severity of the hazard posed by the chemicals, being either “Danger” for the most severely hazardous and “Warning” for the less severely hazardous chemicals; (3) the OSHA designated pictograms; (4) the hazard statement or statements, which identify the hazard posed by the chemical and in some instances the degree of hazard; (5) the precautionary statement or statements, which explain recommended safety measures to protect individuals from the hazards posed by the chemicals; and (5) the name, address, and phone number of the manufacturer, distributor, or importer of the chemical.
Before December 1, 2013, employers must also train their employees on how the employee will use the new labels and how the various elements on each label work together. As examples of the types of information that needs to be conveyed to employees in this training, OSHA explains that employers should: (1) explain how employees can use label information to make sure that chemicals are properly stored; (2) explain how to use the labels in emergency situations and for information on first aid; (3) explain that there will be various pictograms on chemicals that pose multiple hazards and how the pictograms will correspond to hazard classes; and (4) explain that in instances where multiple precautionary statements apply to a chemical, the statement with the most protective information will be on the label.
Before December 1, 2013, employers must train their employees on the new format of the Safety Data Sheets and explain how they relate to the new labels. Employers must train employees on each of the 16 sections included in the Safety Data Sheets and explain the type of information that will be found in each of the sections.
Employers who have not done so already, need to train their employees on the new hazardous chemical labels and Safety Data Sheets before the December 1, 2013 compliance deadline. Employers should contact counsel to make sure that they are properly training their employees under the revised HCS as required by OSHA and to keep up-to-date on the future compliance deadlines which will be implemented in phases until June 1, 2016.
*Scott Coghlan, the chair of the firms’ Workers’ Compensation Group, has extensive experience in all aspects of OSHA and workers’ compensation. For more information about OSHA compliance, please contact Scott at 216.696.4441 or sc@zrlaw.com.
Recently, the Occupational Safety and Health Administration (“OSHA”) revised its Hazardous Communication Standard (“HCS”). The revised HCS introduces new labeling requirements for hazardous chemicals in the workplace and standardized Safety Data Sheets (formerly called Material Safety Data Sheets). The revised HCS will be implemented in phases from December 1, 2013 to June 1, 2016. For the first compliance deadline, December 1, 2013, employers must make sure that their employees are trained on the new labels and Safety Data Sheets.
Hazardous Chemical Label Training Requirements
The revised HCS defines labels as “an appropriate group of written, printed or graphic information elements concerning a hazardous chemical that is affixed to, printed on, or attached to the immediate container of a hazardous chemical, or to the outside packaging.” Beginning on June 1, 2015, employers must comply with new labeling requirements for all hazardous chemicals utilized in the workplace.A detailed OSHA Brief on the new labels can be found at:
https://www.osha.gov/Publications/OSHA3636.pdf.
While employers are not required to comply with the new labeling requirements until June 1, 2015, they are free to start using the new labels before that date. However, employers must train their employees on the new labels before December 1, 2013.
As a part of the new hazardous chemical label training, employers must train their employees on the following information included in the new labels: (1) the product identifier, which may be in the form of the chemical’s name or a code or batch number; (2) the signal word identifying the severity of the hazard posed by the chemicals, being either “Danger” for the most severely hazardous and “Warning” for the less severely hazardous chemicals; (3) the OSHA designated pictograms; (4) the hazard statement or statements, which identify the hazard posed by the chemical and in some instances the degree of hazard; (5) the precautionary statement or statements, which explain recommended safety measures to protect individuals from the hazards posed by the chemicals; and (5) the name, address, and phone number of the manufacturer, distributor, or importer of the chemical.
Before December 1, 2013, employers must also train their employees on how the employee will use the new labels and how the various elements on each label work together. As examples of the types of information that needs to be conveyed to employees in this training, OSHA explains that employers should: (1) explain how employees can use label information to make sure that chemicals are properly stored; (2) explain how to use the labels in emergency situations and for information on first aid; (3) explain that there will be various pictograms on chemicals that pose multiple hazards and how the pictograms will correspond to hazard classes; and (4) explain that in instances where multiple precautionary statements apply to a chemical, the statement with the most protective information will be on the label.
Safety Data Sheet Training Requirements
Safety Data Sheets provide more in-depth information on hazardous chemicals than the labels. Under the revised HCS, chemical manufacturers, distributors, and importers must ensure that they provide Safety Data Sheets for all hazardous chemicals. A detailed OSHA Brief on the content of the Safety Data Sheets can be found at: https://www.osha.gov/Publications/OSHA3514.pdf. Employers are required to make sure that the Safety Data Sheets for all hazardous chemicals in the workplace are readily available to their employees. OSHA recommends keeping the Safety Data Sheets in binders or on computers that are easily accessible to workers in the work area and keeping back-up copies available.Before December 1, 2013, employers must train their employees on the new format of the Safety Data Sheets and explain how they relate to the new labels. Employers must train employees on each of the 16 sections included in the Safety Data Sheets and explain the type of information that will be found in each of the sections.
Employers who have not done so already, need to train their employees on the new hazardous chemical labels and Safety Data Sheets before the December 1, 2013 compliance deadline. Employers should contact counsel to make sure that they are properly training their employees under the revised HCS as required by OSHA and to keep up-to-date on the future compliance deadlines which will be implemented in phases until June 1, 2016.
*Scott Coghlan, the chair of the firms’ Workers’ Compensation Group, has extensive experience in all aspects of OSHA and workers’ compensation. For more information about OSHA compliance, please contact Scott at 216.696.4441 or sc@zrlaw.com.
Monday, November 18, 2013
First Tier Ranking from Best Lawyers®
Zashin & Rich Co., L.P.A. is pleased to announce that the firm's Labor & Employment Group has received First Tier ranking in Employment Law – Management in the Cleveland Region and Labor Law – Management in both the Cleveland and Columbus Regions by U.S. News – Best Lawyers® "Best Law Firms" in 2014.
The U.S. News – Best Lawyers® "Best Law Firms" rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking in a particular practice area and metro region, a law firm must have at least one lawyer who is included in Best Lawyers in that particular practice area and metro.
George Crisci, Jon Dileno, Jonathan Downes, and Stephen Zashin of the firm's Labor & Employment Group were all named Best Lawyers in America in 2014.The firm congratulates these four attorneys who were recognized in their field as well as all of its attorneys that contribute to the firm's workplace and employment practice that represents clients from publicly traded national corporations to small businesses in matters ranging from discrimination and harassment complaints to workers' compensation.
Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor.
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.
The U.S. News – Best Lawyers® "Best Law Firms" rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking in a particular practice area and metro region, a law firm must have at least one lawyer who is included in Best Lawyers in that particular practice area and metro.
George Crisci, Jon Dileno, Jonathan Downes, and Stephen Zashin of the firm's Labor & Employment Group were all named Best Lawyers in America in 2014.The firm congratulates these four attorneys who were recognized in their field as well as all of its attorneys that contribute to the firm's workplace and employment practice that represents clients from publicly traded national corporations to small businesses in matters ranging from discrimination and harassment complaints to workers' compensation.
Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor.
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.
Monday, November 4, 2013
Do I Need To Give Employees Time Off To Vote?
*By David R. Vance
With the 2013 elections just one day away, many employers may be wondering if they must give employees time off to vote. No federal law covers this issue, and the laws vary by state with most states requiring employers provide time for employees to vote. The laws vary greatly though – some specify whether the employer must provide paid time off while others only specify how many hours the employer must provide.
In general, most employers will need to provide employees with time to vote if the polls are not open for two to four consecutive hours before or after the employee's scheduled shift. Is your company required to give employees time off to vote?
*David R. Vance is experienced in all aspects of workplace law, including questions about employee leave. For more information about these issues or other employment law concerns, please contact David at 216.696.4441 or drv@zrlaw.com.
With the 2013 elections just one day away, many employers may be wondering if they must give employees time off to vote. No federal law covers this issue, and the laws vary by state with most states requiring employers provide time for employees to vote. The laws vary greatly though – some specify whether the employer must provide paid time off while others only specify how many hours the employer must provide.
In general, most employers will need to provide employees with time to vote if the polls are not open for two to four consecutive hours before or after the employee's scheduled shift. Is your company required to give employees time off to vote?
- The following states require employers provide voting leave and require a specific amount of time that the employer must provide to vote: Alabama (up to one hour), Arizona (up to three hours), California (two hours), Colorado (up to two hours), Georgia (up to two hours), Hawaii (up to two hours), Illinois (two hours), Kansas (up to two hours), Kentucky (at least four hours), Maryland (up to two hours), Massachusetts (up to two hours; limited to certain employers), Nebraska (two hours), Nevada (up to three hours), New Mexico (two hours), New York (without loss of pay for up to two hours), Oklahoma (two hours), South Dakota (up to two hours), Tennessee (up to three hours), Utah (up to two hours), Washington (up to two hours), West Virginia (up to three hours), Wisconsin (up to three hours), and Wyoming (one hour).
- The following states require employers provide voting leave, but do not specify the amount of time required: Alaska, Arkansas, Iowa, Minnesota, Missouri, Ohio, and Texas.
- The following states allow employers to designate voting hours: Alabama, Georgia, Illinois, Iowa, Kansas, Kentucky, Missouri, Nebraska, Nevada, New Mexico, Oklahoma, South Dakota, Tennessee, Utah (unless the employee requests leave at the beginning or end of the work shift), Wisconsin, and Wyoming.
- Paid leave for voting exists in 22 states, including: Alaska, Arizona, California, Colorado, Hawaii, Illinois, Iowa, Kansas, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
- Seven states do not require paid time off: Alabama, Arkansas, Georgia, Kentucky, Massachusetts, Ohio, and Wisconsin.
- States that require advance notice include: Alabama (reasonable notice), Arizona (one day), California (one day), Georgia (reasonable notice), Illinois (one day), Iowa (one day), Kentucky (at least one day), Massachusetts (upon request), Missouri (one day), Nebraska (one day), Nevada (one day), New York (two to ten days), Oklahoma (one day), Tennessee (by noon on the day before Election Day), Utah (one day), West Virginia (three days), and Wisconsin (one day).
*David R. Vance is experienced in all aspects of workplace law, including questions about employee leave. For more information about these issues or other employment law concerns, please contact David at 216.696.4441 or drv@zrlaw.com.
Wednesday, October 2, 2013
Maryland Law Requiring Pregnancy-Related Accommodations Takes Effect Today
*By Helena Oroz
In May 2013, Maryland Governor Martin O’Malley signed into law HB 804, Reasonable Accommodations for Disabilities Due to Pregnancy. The law, which amends Maryland’s Fair Employment Practices Act, takes effect today, October 1, 2013.
In general, the new law requires Maryland employers with 15 or more employees to provide accommodations to an employee with a disability caused by or contributed to by pregnancy, unless the accommodation would impose an undue hardship on the employer’s business.
If an employee requests a reasonable accommodation under the law, the employer must explore “all possible means” of providing the accommodation with the employee, including (1) changing the employee’s job duties; (2) changing the employee’s work hours; (3) relocating the employee’s work area; (4) providing mechanical or electrical aids; (5) transferring the employee to a less strenuous or less hazardous position; or (6) providing leave. The law also establishes specific rules for transfer requests. The text of the law can be found here:
http://mgaleg.maryland.gov/2013RS/bills/hb/hb0804t.pdf.
Employers may require a pregnant employee to submit certification from her healthcare provider explaining the medical advisability of a reasonable accommodation if the employer requires such certification for other temporary disabilities. The certification must include (1) the date the reasonable accommodation became medically advisable; (2) the probable duration of the accommodation; and (3) an explanation of the medical advisability of the accommodation.
Finally, Maryland employers “shall post in a conspicuous location, and include in any employee handbook, information concerning an employee’s rights to reasonable accommodations and leave for a disability caused or contributed to by pregnancy.”
The Maryland Commission on Civil Rights recently issued a guidance document concerning the new law that can be found here:
http://mccr.maryland.gov/publications/Reas.%20Acc.Preg.Guidance.09.09.13.pdf.
Unfortunately, the Commission does not yet offer much in the way of guidance, beyond restating key provisions of HB 804. The Commission also made clear in this guidance document that it will not be issuing a poster until some point in the future, and that employers should consult legal counsel with respect to their posting and handbook requirements.
Maryland’s new law creates additional burdens for employers beyond those required under federal law. Covered employers should carefully review their obligations under the new law when responding to employees requesting accommodations related to their pregnancy. Maryland employers should also ensure that they comply with the law’s posting and handbook requirements. Until the Maryland Commission on Civil Rights issues an official poster or more specific handbook guidance, employers are on their own.
*Helena Oroz practices in all areas of employment litigation and has extensive experience helping employers comply with pregnancy-related issues, including reasonable accommodations and leave. For more information or for assistance with your posting and handbook obligations, please contact Helena (hot@zrlaw.com) at 216.696.4441.
In May 2013, Maryland Governor Martin O’Malley signed into law HB 804, Reasonable Accommodations for Disabilities Due to Pregnancy. The law, which amends Maryland’s Fair Employment Practices Act, takes effect today, October 1, 2013.
In general, the new law requires Maryland employers with 15 or more employees to provide accommodations to an employee with a disability caused by or contributed to by pregnancy, unless the accommodation would impose an undue hardship on the employer’s business.
If an employee requests a reasonable accommodation under the law, the employer must explore “all possible means” of providing the accommodation with the employee, including (1) changing the employee’s job duties; (2) changing the employee’s work hours; (3) relocating the employee’s work area; (4) providing mechanical or electrical aids; (5) transferring the employee to a less strenuous or less hazardous position; or (6) providing leave. The law also establishes specific rules for transfer requests. The text of the law can be found here:
http://mgaleg.maryland.gov/2013RS/bills/hb/hb0804t.pdf.
Employers may require a pregnant employee to submit certification from her healthcare provider explaining the medical advisability of a reasonable accommodation if the employer requires such certification for other temporary disabilities. The certification must include (1) the date the reasonable accommodation became medically advisable; (2) the probable duration of the accommodation; and (3) an explanation of the medical advisability of the accommodation.
Finally, Maryland employers “shall post in a conspicuous location, and include in any employee handbook, information concerning an employee’s rights to reasonable accommodations and leave for a disability caused or contributed to by pregnancy.”
The Maryland Commission on Civil Rights recently issued a guidance document concerning the new law that can be found here:
http://mccr.maryland.gov/publications/Reas.%20Acc.Preg.Guidance.09.09.13.pdf.
Unfortunately, the Commission does not yet offer much in the way of guidance, beyond restating key provisions of HB 804. The Commission also made clear in this guidance document that it will not be issuing a poster until some point in the future, and that employers should consult legal counsel with respect to their posting and handbook requirements.
Maryland’s new law creates additional burdens for employers beyond those required under federal law. Covered employers should carefully review their obligations under the new law when responding to employees requesting accommodations related to their pregnancy. Maryland employers should also ensure that they comply with the law’s posting and handbook requirements. Until the Maryland Commission on Civil Rights issues an official poster or more specific handbook guidance, employers are on their own.
*Helena Oroz practices in all areas of employment litigation and has extensive experience helping employers comply with pregnancy-related issues, including reasonable accommodations and leave. For more information or for assistance with your posting and handbook obligations, please contact Helena (hot@zrlaw.com) at 216.696.4441.
Tuesday, September 3, 2013
There’s an App for That: The New NLRB Smartphone App
*By Jonathan D. Decker
Despite two federal courts’ invalidation of the National Labor Relations Board’s (“NLRB”) “posting rule,” the NLRB marked this year’s Labor Day holiday by introducing a mobile app designed to inform employers and employees about the National Labor Relations Act (“NLRA”). According to the NLRB, this app “provides employers, employees and unions with information regarding their rights and obligations under the National Labor Relations Act.”
Obviously, the NLRB’s new app makes it easier for employees to receive information about the NLRA, as well as connect with the NLRB. The app allows users to contact the NLRB’s main telephone line from their smartphone with just a few clicks. The app can also use the smartphone’s GPS function to locate the nearest NLRB regional office and display the office’s contact information, including address and telephone number. In addition, the app contains language similar to the NLRB’s “posting rule,” including a statement to employees that “[w]hether or not you are represented by a union, federal law gives you the right to join together with coworkers to improve your lives at work – including joining together in cyberspace, such as on Facebook.” The NLRB’s launch of its new app tracks a similar strategy the Department of Labor (“DOL”) recently initiated, including a “Timesheet” application to record hours worked and calculate the amount an employee may be owed by their employers. Zashin & Rich Co., L.P.A. explained the DOL’s app in a May 2011 alert.
This latest app demonstrates the NLRB’s continued strategy to reach out to workers regarding their rights under the NLRA, even in the face of judicial scrutiny of the agency’s recent activities. In an increasingly digital world, employers must recognize the issues posed by technology in the workplace, account for employees’ ease of access to the NLRB’s information, and utilize proactive measures to counter the NLRB’s more aggressive posture.
Despite two federal courts’ invalidation of the National Labor Relations Board’s (“NLRB”) “posting rule,” the NLRB marked this year’s Labor Day holiday by introducing a mobile app designed to inform employers and employees about the National Labor Relations Act (“NLRA”). According to the NLRB, this app “provides employers, employees and unions with information regarding their rights and obligations under the National Labor Relations Act.”
Obviously, the NLRB’s new app makes it easier for employees to receive information about the NLRA, as well as connect with the NLRB. The app allows users to contact the NLRB’s main telephone line from their smartphone with just a few clicks. The app can also use the smartphone’s GPS function to locate the nearest NLRB regional office and display the office’s contact information, including address and telephone number. In addition, the app contains language similar to the NLRB’s “posting rule,” including a statement to employees that “[w]hether or not you are represented by a union, federal law gives you the right to join together with coworkers to improve your lives at work – including joining together in cyberspace, such as on Facebook.” The NLRB’s launch of its new app tracks a similar strategy the Department of Labor (“DOL”) recently initiated, including a “Timesheet” application to record hours worked and calculate the amount an employee may be owed by their employers. Zashin & Rich Co., L.P.A. explained the DOL’s app in a May 2011 alert.
This latest app demonstrates the NLRB’s continued strategy to reach out to workers regarding their rights under the NLRA, even in the face of judicial scrutiny of the agency’s recent activities. In an increasingly digital world, employers must recognize the issues posed by technology in the workplace, account for employees’ ease of access to the NLRB’s information, and utilize proactive measures to counter the NLRB’s more aggressive posture.
Thursday, August 29, 2013
EMPLOYMENT LAW QUARTERLY | Summer 2013, Volume XV, Issue ii
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On July 11, 2013, Ohio Governor John Kasich signed a law allowing employers seeking to cut costs to reduce temporarily all employees’ hours by 10 to 50 percent. The law became effective immediately. Touted by supporters as a win-win for both employers and employees, the state-approved layoff prevention program (called SharedWork Ohio) allows employees to keep their health and retirement benefits, as well as seek unemployment compensation for up to half of their missing wages. Employers will benefit by avoiding higher unemployment compensation taxes and the costs associated with training new workers.
SharedWork Ohio, which is similar to state-approved programs in 25 other states, will be funded by the federal government for the next two years. Thereafter, costs associated with the program will be funded through the unemployment compensation system.
Employers wanting to participate in the program must submit a plan to the director of the Ohio Department of Job and Family Services, including (among other things) a certification that the aggregate reduction in the number of hours worked by employees is in lieu of layoffs. Seasonal or temporary employees are not eligible for the program.
Whether employers with unionized employees must bargain over the implementation of the shared work programs remains uncertain. Ohio’s shared work program does not require union approval for employers’ shared work plans, which makes Ohio unique among most other states with shared work programs. Although SharedWork Ohio garnered bipartisan support generally, liberal supporters were in favor of a union sign-off, but conservative supporters were not. Employers with unionized employees are advised to seek advice from legal counsel as they develop and implement any shared work program.
*Emily A. Smith practices in all areas of employment law and regularly navigates employers through the nuances of Ohio employment laws and programs like SharedWork Ohio. If you believe your organization would benefit from SharedWork Ohio, contact Zashin & Rich at 614-224-4411 for more information.
Recently, the Ohio Supreme Court made it more difficult for plaintiffs bringing class action lawsuits in Ohio state courts. In Stammco, LLC v. United Tel. Co. of Ohio, 2013 Ohio 3019, the Court ruled that Ohio Rule of Civil Procedure 23 requires a “rigorous analysis” at the class certification stage. The Court also stated this analysis may “include probing the underlying merits of the plaintiffs claim.” However, this in-depth probe should only be used “for the purpose of determining whether the plaintiff has satisfied the prerequisites of Civ.R. 23.”
Ohio Civil Rule 23, which is nearly identical to the corresponding federal rule, lists the requirements of maintaining a class action suit. The Court’s recent decision in the Stammco case ended an eight year legal battle in which the plaintiffs alleged the defendant engaged in “cramming,” which is the unauthorized addition of third party charges to telephone bills. Plaintiffs sought class certification under Ohio Rule of Civil Procedure 23(B)(3). In refusing to certify the proposed class, the Ohio Supreme Court found that “the need for individualized determinations is dispositive in that the class did not comport with Civ. R. 23.” The Court also found that remanding the issue to the trial court “merely to reach an inevitable result” would be unproductive and unnecessarily delay the eight-year-old litigation.
In Stammco, the Ohio Supreme Court relied heavily on two recent United States Supreme Court decisions: Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) and Amgen v. Connecticut Retirement Plans & Trust Funds, 133 S.Ct. 1184 (2013). Dukes was an employment discrimination case in which the United States Supreme Court denied certification of a class of workers in part because individualized proceedings would be required to determine the amount of back pay due some class members. In Amgen, a pharmaceutical company misrepresented the safety of its products to the Food and Drug Administration. Connecticut Retirement Plans filed suit seeking to certify a class of shareholders. In certifying the class, the United States Supreme Court clarified that the consideration of the underlying merits at the certification stage is not unfettered. The Court stated, “[T]he office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it is to select the ‘metho[d]’ best suited to adjudication of the controversy ‘fairly and efficiently.’” Relying on these cases,the Ohio Supreme Court denied class certification in Stammco because the case would require “individualized determinations as to each member of the class…making certification of a class inappropriate under Civ.R. 23(B)(3).”
Taken together, these three decisions are likely to reduce the number of class action suits at both the state and federal levels that will successfully get past the certification stage. The Ohio and United States Supreme Courts have made it clear that cases that require individualized determinations are likely not appropriate for class action litigation. In addition, trial courts must conduct a more in-depth analysis of class action suits at the certification phase. While the Stammco decision is helpful for Ohio employers, they still must remain vigilant of potential class actions.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, is the head of the firm’s labor and employment group. Stephen’s practice encompasses all areas of labor and employment law, and he works extensively in defending class and collective actions. For more information about this article or any other employment matter, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
The Ohio Supreme Court recently expanded the United States Supreme Court’s finding in Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, the New Jersey Attorney General questioned police officers about a suspected traffic ticket fixing scheme. The investigation was not criminal in nature, but officers were hesitant to cooperate, fearing that their comments would be self-incriminating. The officers were told that if they refused to cooperate with the investigation, they could be removed from office. Ultimately, the officers complied with the investigation and some were subsequently prosecuted for “conspiracy to obstruct the administration of traffic laws.” The Supreme Court found that the officers’ statements made during the initial investigation were coerced. As such, they were inadmissible in the officers’ criminal prosecution. The Court reasoned that allowing the coerced statements into evidence would violate the officers’ Fifth Amendment right against self-incrimination. The Garrity warning applies to all public employees.
The Ohio Supreme Court recently faced a similar situation in Ohio v. Graham, 2013 Ohio 2114, 2013 Ohio LEXIS 1348 (May 29, 2013). Relying on Garrity, the Ohio Supreme Court held that statements obtained from a public employee under threat of job loss are unconstitutionally coerced and inadmissible in subsequent criminal proceedings. In Graham, the Office of the Inspector General questioned several Ohio Division of Wildlife (“DOW”) administrators about the punishment of another DOW worker. The DOW worker at issue had illegally allowed a DOW worker from South Carolina to register a hunting license to his address at a reduced price. When DOW administrators learned of the infraction, they addressed the employee’s discipline internally rather than informing the authorities as required by protocol. The Ohio Division of Natural Resources learned of this decision, and the Inspector General investigated. Unlike the investigation in Garrity, the investigators never told the administrators that they could face suspension or removal from office for refusing to comply. However, each administrator received a “Notice of Investigatory Interview” which stated that refusal to comply with the investigation could lead to suspension or termination. The Court determined that: (1) the administrators subjectively believed they could be terminated for refusing to comply with the organization; and (2) their belief was objectively reasonable. Accordingly, the Court found that the administrators’ statements made during the investigation were inadmissible in subsequent criminal proceedings against them.
So where does this leave public employers that are looking to undertake an internal investigation? First, employers should remember that statements obtained from a public employee under threat of job loss are inadmissible in subsequent criminal proceedings. However, a public employer may still compel a public employee’s cooperation in a job-related investigation so long as the employee is not asked to surrender the privilege against self-incrimination. Therefore, employers should not attempt to bypass Garrity by issuing a notice to employees as in Graham. Finally, employers should also incorporate information about internal investigations into their employee handbook.
Contact us for policies or forms for Garrity notices, a simple but critical step in internal investigations.
*Jonathan J. Downes, is AV rated by Martindale Hubbell and is an OSBA certified specialist in labor and employment law, practices in the firm’s Columbus, Ohio office and has extensive experience representing public sector employers, including conducting internal investigations. If you have any questions about the above or any other union/employee issue, contact Jonathan (jjd@zrlaw.com) at 614.224.4411.
An employer may consider an individual’s criminal record when making employment decisions. However, the Equal Employment Opportunity Commission (“EEOC”) has found that exclusions based on such records may disparately impact minorities. Two employers’ screening policies have recently fallen under scrutiny. The EEOC filed suit against Dollar General and BMW on behalf of former and prospective African-American employees, alleging that both companies utilized screening procedures that disproportionately impacted African-Americans.
First, the EEOC filed a nationwide lawsuit against Dollar General on behalf of African-American applicants. The lawsuit challenged Dollar General’s practice of conditioning all job offers on criminal background checks. Between 2004 and 2007, 10% of African-American applicants were discharged after they failed Dollar General’s background check (compared to 7% of non-African-American applicants). The EEOC based its lawsuit on charges of discrimination by two rejected applicants. One of the rejected applicants was denied employment after Dollar General discovered that she had a six year-old conviction for possession of a controlled substance. Dollar General revoked her job offer pursuant to its practice of disqualifying applicants for this type of conviction within the last ten years. The second rejected applicant was refused employment after a felony conviction turned up on Dollar General’s background check. The EEOC claimed that the applicant's background check results were inaccurate and that Dollar General failed to address the applicants’ protests.
The EEOC also filed suit against BMW alleging the company’s use of criminal background checks disproportionately precluded African-Americans from jobs and was neither job-related nor consistent with business necessity. BMW terminated eighty-eight employees after it discovered they had prior convictions. Eighty percent of those terminated were African-Americans. The employees originally bypassed BMW’s screening process because they were employed by UTi Integrated Logistics Inc. (“UTi”), which used a less stringent screening procedure than BMW. BMW contracted with UTi to place UTi employees at various BMW locations. BMW ended its relationship with UTi but allowed the UTi employees to apply with BMW’s new contractor. BMW’s new contractor screened these employees for prior arrests and convictions according to BMW’s policy. BMW’s policy excluded applicants convicted of broad categories of crimes, including assault, domestic abuse, various drugs and weapons crimes, any crime of a violent nature, and criminal convictions involving theft, dishonesty, and moral turpitude. Eighty-eight employees failed the screening, and BMW directed the new contractor to apply BMW’s criminal conviction policy and not hire these individuals. The EEOC brought suit on behalf of sixty-nine African-American employees not rehired pursuant to BMW’s policy, alleging that BMW discriminatorily failed to distinguish between felony and misdemeanor convictions. The EEOC also found that BMW’s policy acted as a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the employees’ positions. These cases are both still pending in their respective courts.
However, other courts have recently cast doubt on the EEOC’s efforts to restrict employers' use of criminal-background checks in hiring. In EEOC v. Freeman, 2013 U.S. Dist. LEXIS 112368 (D. Md. August 9, 2013), the United States District Court for the District of Maryland dismissed a lawsuit filed by the EEOC. The EEOC claimed that Freeman, a corporate events service provider, had “unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants.” The Court flatly rejected this argument, stating “[i]ndeed, the higher rate might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all positions, and conducts credit background checks on approximately 90 percent of its positions.”
Confusing the issue further, the EEOC Enforcement Guidelines on the Consideration of Arrest and Conviction Records in Employment Decisions, released in 2012, establish recommended screening practices for employers. The guidelines draw from the Eighth Circuit’s decision in Green v. Missouri Pacific Railroad, 549 F.2d 1158, 1160 (8th Cir. 1977). Green established that employers utilizing background checks should consider three factors when analyzing criminal records: (1) the nature gravity of the crime; (2) the time elapsed between when the crime was committed and the employee’s work application; and (3) the nature of the job. Green, 549 F.2d at 1160. The EEOC also recommends that convictions should be related to the job sought by an applicant and that the employer’s decision be consistent with business necessity.
The ambiguity surrounding the EEOC’s recommendations creates a dilemma for employers. On one hand, if employers do not follow the EEOC’s recommendations by providing an individualized assessment for screened employees, they risk an EEOC lawsuit. On the other hand, if employers hire an employee with a criminal history and that employee commits a crime while at work, the employer risks being sued for negligent hiring or retention.
Employers should conduct an individualized assessment for potential employees who fail background checks. Employers should avoid “blanket” exclusionary policies and ensure that criminal background policies are tailored to the specific job at issue and have a reasonable time limit. Employers also should allow individuals to explain past convictions and be careful to distinguish between arrests and convictions. An employer also should never make an employment determination based on an arrest, but rather, the conduct underlying the arrest (if it would make that individual unfit for the specific position).
So long as this issue remains in flux, employers must tread carefully when using criminal background checks as part of the hiring process. While the Freeman decision provides employers hope, the EEOC has and likely will continue to heavily scrutinize employers’ use of criminal background checks for potential new hires, possibly leaving employers vulnerable to costly and time-consuming litigation.
*Ami J. Patel practices in all areas of employment litigation. She has extensive experience helping employers navigate the EEOC’s policies and procedures, as well as related employment issues. For more information about this ever changing area, please contact Ami (ajp@zrlaw.com) at 216.696.4441.
Smart phones, laptops, tablets, and other mobile devices have made it easier for employees to work outside of the office. Employees may use these devices to work during their morning and evening commutes. Unbeknownst to many employers, however, work done during a commute may be compensable under the Fair Labor Standards Act (“FLSA”).
Employers generally must pay their nonexempt employees no less than the federal or state minimum wage, whichever is higher, for each hour worked. Employers must also pay their non-exempt employees one-and-one-half times their regular rate for hours worked in excess of forty in a workweek. Typically normal travel between home and work is not considered work time. This general rule, however, only applies if the employee performs no work during his or her commute.
Should the employee work during his or her commute, the time from the point he or she starts working becomes work time. In addition, an employer must pay for an employee’s commuting time if that time is being used primarily for the employer’s benefit, not the employee’s. For example, if the employee is required to pick up work supplies, some or all of this travel time may be compensable.
If an employee performs work outside of normal working hours, and does not receive compensation for those hours worked, an employer also may be liable for unpaid wages. Courts routinely find that employer policies prohibiting employees from performing unauthorized work, including during their commute, do not prevent this liability.
There are several ways employers can reduce their potential wage and hour liability. Employers should institute policies prohibiting unauthorized work, regularly remind employees of those policies and discipline those employees who violate the policies. Employers should also take away employer-owned mobile devices if employees use them to perform unauthorized work.
Further, employers may not be liable for work done in cases where they had no actual or constructive knowledge that an employee worked off the clock. For example, one employer was found not liable for time an employee spent working at lunch when the employee admitted she did not follow the employer’s procedures for reporting such time. White v. Baptist Memorial Health Care Corp., 2012 WL 5392621 (6th Cir. 2012). Employers should be aware that an employee’s use of company provided cell phones, tablets, or other mobile devices strengthens the likelihood that the employer actually knew work occurred.
Another potential hurdle employers face occurs when an employee performs additional work after returning home. For example, is an employee’s commute time compensable under a continuous working theory when the employee performs services for the employer after returning home at the end of the day? According to some courts, the answer is no, so long as the employer gave the employee enough flexibility to schedule his day. In Kuebel v. Black & Decker, Inc., 643 F.3d 352 (2nd Cir. 2011), the employee was a retail specialist whose main job was to ensure that Black & Decker (“B&D”) products were properly stocked, priced, and displayed in stores. B&D expected him to spend between five and eight hours per day completing these tasks. B&D also provided the employee with a PDA to record his entry and exit at stores. When the employee synced his PDA with B&D’s server, the PDA automatically communicated the employee’s hours. The employee also performed job-related tasks, such as responding to emails, late at night from his home office. He filed suit, claiming that B&D should have compensated him for his commute home since he was required to continue working after he arrived home. The court disagreed, holding that the employee had flexibility to complete his daily responsibilities so he was not working continuously.
Finally, with the advent of improved technology, many employers now permit employees to “telecommute.” While telecommuting employees generally work from home or another off-site location, it is sometimes necessary for these employees to commute into the office for meetings. If a telecommuting employee attends a meeting during the day, the travel time likely constitutes working time because the employee presumably already started working that day at his/her remote location. However, if the meeting is scheduled for first thing in the morning and is the employee’s first job related activity, the employee’s time spent commuting to the office likely is not compensable.
Employers must remain vigilant of the need to compensate employees for all work performed. If an employee works during his or her commute, that time is generally compensable and the employer must pay the employee for that time. Employers should have clear policies and procedures addressing unauthorized work and should require mandatory reporting of any work performed outside of normal working hours. Strict compliance with these policies will go a long way in helping employers avoid liability.
*Michele L. Jakubs, an OSBA certified specialist in labor and employment law, practices in all areas of employment law and has extensive experience representing employers in wage and hour matters. If you have any questions about the FLSA or wage and hour issues affecting your workplace, contact Michele (mlj@zrlaw.com) at 216-696-4441.
Weight loss is somewhat of an obsession in this country. With the likes of New Jersey Governor Chris Christie, Oprah Winfrey, and even former President Bill Clinton talking about their own weight loss experiences, the national conversation about being overweight and losing weight is as animated as ever, among famous folks and regular Joes alike.
Discussing obesity (defined by the U.S. Centers for Disease Control and Prevention as having a body mass index of 30 or higher1), however, seems to make people uncomfortable – even, strangely enough, some doctors who may fail to counsel their patients about it. This is one reason many in the medical community are applauding the American Medical Association’s designation last Tuesday of obesity as a disease requiring treatment and prevention.
“Recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans,” according to A.M.A. board member Patrice Harris, M.D.2 Those who laud the A.M.A.’s decision agree that it may help people in a variety of ways, from changing the way insurance companies reimburse for obesity drugs and treatments to changing the way society views obesity.
Of course, designating one third of Americans as diseased is not going to sit well with everyone (even those who are supposed to benefit from the change). And even though the A.M.A.’s decision carries no legal authority, it does carry influence, so employers have legitimate concerns about how their responsibilities under the Americans with Disabilities Act (“ADA”) may change as a result.
After all, the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) has already massively broadened the scope of the ADA’s protections, and per the U.S. Equal Employment Opportunity Commission (“EEOC”), the determination of disability should not require extensive analysis. If the AMA says obesity is a disease, EEOC Guidance on how to accommodate individuals with this condition may not be far behind.
*Helena Oroz practices in all areas of employment litigation and has extensive experience helping employers comply with the ADAAA. For more information about this ever changing area, please contact Helena (hot@zrlaw.com) at 216.696.4441.
1 In general, the U.S. Centers for Disease Control and Prevention (CDC) considers an adult with a body mass index (BMI) of 30 or higher obese; an adult with a BMI between 25 and 29.9 is considered overweight. Centers for Disease Control and Prevention: http://www.cdc.gov/obesity/ adult/defining.html
2 AMA Press Release: http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm
Thursday, September 12, 2013
Jonathan Downes presents "Workforce Reduction, Layoffs, and Job Abolishments" for the Ohio Government Finance Officers Association Annual Conference at the Hilton Columbus at Easton. For more details, go to www.ohgfoa.com.
Thursday, October 2, 2013
Stephen Zashin will be co-presenting "A Peek Behind the Curtain: Discovery Tactics" at the 50th Annual Midwest Labor and Employment Law Seminar. For more details, go to www.ohiobar.org.
Thursday, October 17, 2013
Jonathan Downes presents "Terminating Employees Without Getting Sued" for the South Central Ohio Human Resource Association. For more details, go to scohrc.com/.
Thursday, November 7, 2013
George Crisci will be part of a panel presenting "It's Always 1983 in the American Workplace" for the ABA Labor and Employment Section's Annual CLE meeting. For more details, go to www.americanbar.org.
Wednesday, November 13 2013
Jonathan Downes presents "Managing the Discipline Process" for the Ohio Association of Chiefs of Police at the Richfield BCII Facility. For more details, go to www.oacp.org.
- New Ohio Law Allows Employers to Reduce Employee Hours to Avoid Layoffs
- Ohio Follows Suit in Making Class Actions Harder to Certify
- Right to Remain Silent: The Do's and Do Not's of Internal Investigations
- Disorderly Conduct: EEOC Cracks Down on Employers' Use of Applicants' Criminal Histories
- Road to Riches: Paying Employees Who Work While Commuting
- Obesity is a Disease: from the A.M.A.'s Lips to the EEOC's Ears?
- Z&R SHORTS
New Ohio Law Allows Employers to Reduce Employee Hours to Avoid Layoffs
By Emily A. Smith*On July 11, 2013, Ohio Governor John Kasich signed a law allowing employers seeking to cut costs to reduce temporarily all employees’ hours by 10 to 50 percent. The law became effective immediately. Touted by supporters as a win-win for both employers and employees, the state-approved layoff prevention program (called SharedWork Ohio) allows employees to keep their health and retirement benefits, as well as seek unemployment compensation for up to half of their missing wages. Employers will benefit by avoiding higher unemployment compensation taxes and the costs associated with training new workers.
SharedWork Ohio, which is similar to state-approved programs in 25 other states, will be funded by the federal government for the next two years. Thereafter, costs associated with the program will be funded through the unemployment compensation system.
Employers wanting to participate in the program must submit a plan to the director of the Ohio Department of Job and Family Services, including (among other things) a certification that the aggregate reduction in the number of hours worked by employees is in lieu of layoffs. Seasonal or temporary employees are not eligible for the program.
Whether employers with unionized employees must bargain over the implementation of the shared work programs remains uncertain. Ohio’s shared work program does not require union approval for employers’ shared work plans, which makes Ohio unique among most other states with shared work programs. Although SharedWork Ohio garnered bipartisan support generally, liberal supporters were in favor of a union sign-off, but conservative supporters were not. Employers with unionized employees are advised to seek advice from legal counsel as they develop and implement any shared work program.
*Emily A. Smith practices in all areas of employment law and regularly navigates employers through the nuances of Ohio employment laws and programs like SharedWork Ohio. If you believe your organization would benefit from SharedWork Ohio, contact Zashin & Rich at 614-224-4411 for more information.
Ohio Follows Suit in Making Class Actions Harder to Certify
By Stephen S. Zashin*Recently, the Ohio Supreme Court made it more difficult for plaintiffs bringing class action lawsuits in Ohio state courts. In Stammco, LLC v. United Tel. Co. of Ohio, 2013 Ohio 3019, the Court ruled that Ohio Rule of Civil Procedure 23 requires a “rigorous analysis” at the class certification stage. The Court also stated this analysis may “include probing the underlying merits of the plaintiffs claim.” However, this in-depth probe should only be used “for the purpose of determining whether the plaintiff has satisfied the prerequisites of Civ.R. 23.”
Ohio Civil Rule 23, which is nearly identical to the corresponding federal rule, lists the requirements of maintaining a class action suit. The Court’s recent decision in the Stammco case ended an eight year legal battle in which the plaintiffs alleged the defendant engaged in “cramming,” which is the unauthorized addition of third party charges to telephone bills. Plaintiffs sought class certification under Ohio Rule of Civil Procedure 23(B)(3). In refusing to certify the proposed class, the Ohio Supreme Court found that “the need for individualized determinations is dispositive in that the class did not comport with Civ. R. 23.” The Court also found that remanding the issue to the trial court “merely to reach an inevitable result” would be unproductive and unnecessarily delay the eight-year-old litigation.
In Stammco, the Ohio Supreme Court relied heavily on two recent United States Supreme Court decisions: Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) and Amgen v. Connecticut Retirement Plans & Trust Funds, 133 S.Ct. 1184 (2013). Dukes was an employment discrimination case in which the United States Supreme Court denied certification of a class of workers in part because individualized proceedings would be required to determine the amount of back pay due some class members. In Amgen, a pharmaceutical company misrepresented the safety of its products to the Food and Drug Administration. Connecticut Retirement Plans filed suit seeking to certify a class of shareholders. In certifying the class, the United States Supreme Court clarified that the consideration of the underlying merits at the certification stage is not unfettered. The Court stated, “[T]he office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it is to select the ‘metho[d]’ best suited to adjudication of the controversy ‘fairly and efficiently.’” Relying on these cases,the Ohio Supreme Court denied class certification in Stammco because the case would require “individualized determinations as to each member of the class…making certification of a class inappropriate under Civ.R. 23(B)(3).”
Taken together, these three decisions are likely to reduce the number of class action suits at both the state and federal levels that will successfully get past the certification stage. The Ohio and United States Supreme Courts have made it clear that cases that require individualized determinations are likely not appropriate for class action litigation. In addition, trial courts must conduct a more in-depth analysis of class action suits at the certification phase. While the Stammco decision is helpful for Ohio employers, they still must remain vigilant of potential class actions.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, is the head of the firm’s labor and employment group. Stephen’s practice encompasses all areas of labor and employment law, and he works extensively in defending class and collective actions. For more information about this article or any other employment matter, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
Right to Remain Silent: The Do’s and Do Not’s of Internal Investigations
By Jonathan J. Downes*The Ohio Supreme Court recently expanded the United States Supreme Court’s finding in Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, the New Jersey Attorney General questioned police officers about a suspected traffic ticket fixing scheme. The investigation was not criminal in nature, but officers were hesitant to cooperate, fearing that their comments would be self-incriminating. The officers were told that if they refused to cooperate with the investigation, they could be removed from office. Ultimately, the officers complied with the investigation and some were subsequently prosecuted for “conspiracy to obstruct the administration of traffic laws.” The Supreme Court found that the officers’ statements made during the initial investigation were coerced. As such, they were inadmissible in the officers’ criminal prosecution. The Court reasoned that allowing the coerced statements into evidence would violate the officers’ Fifth Amendment right against self-incrimination. The Garrity warning applies to all public employees.
The Ohio Supreme Court recently faced a similar situation in Ohio v. Graham, 2013 Ohio 2114, 2013 Ohio LEXIS 1348 (May 29, 2013). Relying on Garrity, the Ohio Supreme Court held that statements obtained from a public employee under threat of job loss are unconstitutionally coerced and inadmissible in subsequent criminal proceedings. In Graham, the Office of the Inspector General questioned several Ohio Division of Wildlife (“DOW”) administrators about the punishment of another DOW worker. The DOW worker at issue had illegally allowed a DOW worker from South Carolina to register a hunting license to his address at a reduced price. When DOW administrators learned of the infraction, they addressed the employee’s discipline internally rather than informing the authorities as required by protocol. The Ohio Division of Natural Resources learned of this decision, and the Inspector General investigated. Unlike the investigation in Garrity, the investigators never told the administrators that they could face suspension or removal from office for refusing to comply. However, each administrator received a “Notice of Investigatory Interview” which stated that refusal to comply with the investigation could lead to suspension or termination. The Court determined that: (1) the administrators subjectively believed they could be terminated for refusing to comply with the organization; and (2) their belief was objectively reasonable. Accordingly, the Court found that the administrators’ statements made during the investigation were inadmissible in subsequent criminal proceedings against them.
So where does this leave public employers that are looking to undertake an internal investigation? First, employers should remember that statements obtained from a public employee under threat of job loss are inadmissible in subsequent criminal proceedings. However, a public employer may still compel a public employee’s cooperation in a job-related investigation so long as the employee is not asked to surrender the privilege against self-incrimination. Therefore, employers should not attempt to bypass Garrity by issuing a notice to employees as in Graham. Finally, employers should also incorporate information about internal investigations into their employee handbook.
Contact us for policies or forms for Garrity notices, a simple but critical step in internal investigations.
*Jonathan J. Downes, is AV rated by Martindale Hubbell and is an OSBA certified specialist in labor and employment law, practices in the firm’s Columbus, Ohio office and has extensive experience representing public sector employers, including conducting internal investigations. If you have any questions about the above or any other union/employee issue, contact Jonathan (jjd@zrlaw.com) at 614.224.4411.
Disorderly Conduct: EEOC Cracks Down on Employers’ Use of Applicants’ Criminal Histories
By Ami J. Patel*An employer may consider an individual’s criminal record when making employment decisions. However, the Equal Employment Opportunity Commission (“EEOC”) has found that exclusions based on such records may disparately impact minorities. Two employers’ screening policies have recently fallen under scrutiny. The EEOC filed suit against Dollar General and BMW on behalf of former and prospective African-American employees, alleging that both companies utilized screening procedures that disproportionately impacted African-Americans.
First, the EEOC filed a nationwide lawsuit against Dollar General on behalf of African-American applicants. The lawsuit challenged Dollar General’s practice of conditioning all job offers on criminal background checks. Between 2004 and 2007, 10% of African-American applicants were discharged after they failed Dollar General’s background check (compared to 7% of non-African-American applicants). The EEOC based its lawsuit on charges of discrimination by two rejected applicants. One of the rejected applicants was denied employment after Dollar General discovered that she had a six year-old conviction for possession of a controlled substance. Dollar General revoked her job offer pursuant to its practice of disqualifying applicants for this type of conviction within the last ten years. The second rejected applicant was refused employment after a felony conviction turned up on Dollar General’s background check. The EEOC claimed that the applicant's background check results were inaccurate and that Dollar General failed to address the applicants’ protests.
The EEOC also filed suit against BMW alleging the company’s use of criminal background checks disproportionately precluded African-Americans from jobs and was neither job-related nor consistent with business necessity. BMW terminated eighty-eight employees after it discovered they had prior convictions. Eighty percent of those terminated were African-Americans. The employees originally bypassed BMW’s screening process because they were employed by UTi Integrated Logistics Inc. (“UTi”), which used a less stringent screening procedure than BMW. BMW contracted with UTi to place UTi employees at various BMW locations. BMW ended its relationship with UTi but allowed the UTi employees to apply with BMW’s new contractor. BMW’s new contractor screened these employees for prior arrests and convictions according to BMW’s policy. BMW’s policy excluded applicants convicted of broad categories of crimes, including assault, domestic abuse, various drugs and weapons crimes, any crime of a violent nature, and criminal convictions involving theft, dishonesty, and moral turpitude. Eighty-eight employees failed the screening, and BMW directed the new contractor to apply BMW’s criminal conviction policy and not hire these individuals. The EEOC brought suit on behalf of sixty-nine African-American employees not rehired pursuant to BMW’s policy, alleging that BMW discriminatorily failed to distinguish between felony and misdemeanor convictions. The EEOC also found that BMW’s policy acted as a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the employees’ positions. These cases are both still pending in their respective courts.
However, other courts have recently cast doubt on the EEOC’s efforts to restrict employers' use of criminal-background checks in hiring. In EEOC v. Freeman, 2013 U.S. Dist. LEXIS 112368 (D. Md. August 9, 2013), the United States District Court for the District of Maryland dismissed a lawsuit filed by the EEOC. The EEOC claimed that Freeman, a corporate events service provider, had “unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants.” The Court flatly rejected this argument, stating “[i]ndeed, the higher rate might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all positions, and conducts credit background checks on approximately 90 percent of its positions.”
Confusing the issue further, the EEOC Enforcement Guidelines on the Consideration of Arrest and Conviction Records in Employment Decisions, released in 2012, establish recommended screening practices for employers. The guidelines draw from the Eighth Circuit’s decision in Green v. Missouri Pacific Railroad, 549 F.2d 1158, 1160 (8th Cir. 1977). Green established that employers utilizing background checks should consider three factors when analyzing criminal records: (1) the nature gravity of the crime; (2) the time elapsed between when the crime was committed and the employee’s work application; and (3) the nature of the job. Green, 549 F.2d at 1160. The EEOC also recommends that convictions should be related to the job sought by an applicant and that the employer’s decision be consistent with business necessity.
The ambiguity surrounding the EEOC’s recommendations creates a dilemma for employers. On one hand, if employers do not follow the EEOC’s recommendations by providing an individualized assessment for screened employees, they risk an EEOC lawsuit. On the other hand, if employers hire an employee with a criminal history and that employee commits a crime while at work, the employer risks being sued for negligent hiring or retention.
Employers should conduct an individualized assessment for potential employees who fail background checks. Employers should avoid “blanket” exclusionary policies and ensure that criminal background policies are tailored to the specific job at issue and have a reasonable time limit. Employers also should allow individuals to explain past convictions and be careful to distinguish between arrests and convictions. An employer also should never make an employment determination based on an arrest, but rather, the conduct underlying the arrest (if it would make that individual unfit for the specific position).
So long as this issue remains in flux, employers must tread carefully when using criminal background checks as part of the hiring process. While the Freeman decision provides employers hope, the EEOC has and likely will continue to heavily scrutinize employers’ use of criminal background checks for potential new hires, possibly leaving employers vulnerable to costly and time-consuming litigation.
*Ami J. Patel practices in all areas of employment litigation. She has extensive experience helping employers navigate the EEOC’s policies and procedures, as well as related employment issues. For more information about this ever changing area, please contact Ami (ajp@zrlaw.com) at 216.696.4441.
Road to Riches: Paying Employees Who Work While Commuting
By Michele L. Jakubs*Smart phones, laptops, tablets, and other mobile devices have made it easier for employees to work outside of the office. Employees may use these devices to work during their morning and evening commutes. Unbeknownst to many employers, however, work done during a commute may be compensable under the Fair Labor Standards Act (“FLSA”).
Employers generally must pay their nonexempt employees no less than the federal or state minimum wage, whichever is higher, for each hour worked. Employers must also pay their non-exempt employees one-and-one-half times their regular rate for hours worked in excess of forty in a workweek. Typically normal travel between home and work is not considered work time. This general rule, however, only applies if the employee performs no work during his or her commute.
Should the employee work during his or her commute, the time from the point he or she starts working becomes work time. In addition, an employer must pay for an employee’s commuting time if that time is being used primarily for the employer’s benefit, not the employee’s. For example, if the employee is required to pick up work supplies, some or all of this travel time may be compensable.
If an employee performs work outside of normal working hours, and does not receive compensation for those hours worked, an employer also may be liable for unpaid wages. Courts routinely find that employer policies prohibiting employees from performing unauthorized work, including during their commute, do not prevent this liability.
There are several ways employers can reduce their potential wage and hour liability. Employers should institute policies prohibiting unauthorized work, regularly remind employees of those policies and discipline those employees who violate the policies. Employers should also take away employer-owned mobile devices if employees use them to perform unauthorized work.
Further, employers may not be liable for work done in cases where they had no actual or constructive knowledge that an employee worked off the clock. For example, one employer was found not liable for time an employee spent working at lunch when the employee admitted she did not follow the employer’s procedures for reporting such time. White v. Baptist Memorial Health Care Corp., 2012 WL 5392621 (6th Cir. 2012). Employers should be aware that an employee’s use of company provided cell phones, tablets, or other mobile devices strengthens the likelihood that the employer actually knew work occurred.
Another potential hurdle employers face occurs when an employee performs additional work after returning home. For example, is an employee’s commute time compensable under a continuous working theory when the employee performs services for the employer after returning home at the end of the day? According to some courts, the answer is no, so long as the employer gave the employee enough flexibility to schedule his day. In Kuebel v. Black & Decker, Inc., 643 F.3d 352 (2nd Cir. 2011), the employee was a retail specialist whose main job was to ensure that Black & Decker (“B&D”) products were properly stocked, priced, and displayed in stores. B&D expected him to spend between five and eight hours per day completing these tasks. B&D also provided the employee with a PDA to record his entry and exit at stores. When the employee synced his PDA with B&D’s server, the PDA automatically communicated the employee’s hours. The employee also performed job-related tasks, such as responding to emails, late at night from his home office. He filed suit, claiming that B&D should have compensated him for his commute home since he was required to continue working after he arrived home. The court disagreed, holding that the employee had flexibility to complete his daily responsibilities so he was not working continuously.
Finally, with the advent of improved technology, many employers now permit employees to “telecommute.” While telecommuting employees generally work from home or another off-site location, it is sometimes necessary for these employees to commute into the office for meetings. If a telecommuting employee attends a meeting during the day, the travel time likely constitutes working time because the employee presumably already started working that day at his/her remote location. However, if the meeting is scheduled for first thing in the morning and is the employee’s first job related activity, the employee’s time spent commuting to the office likely is not compensable.
Employers must remain vigilant of the need to compensate employees for all work performed. If an employee works during his or her commute, that time is generally compensable and the employer must pay the employee for that time. Employers should have clear policies and procedures addressing unauthorized work and should require mandatory reporting of any work performed outside of normal working hours. Strict compliance with these policies will go a long way in helping employers avoid liability.
*Michele L. Jakubs, an OSBA certified specialist in labor and employment law, practices in all areas of employment law and has extensive experience representing employers in wage and hour matters. If you have any questions about the FLSA or wage and hour issues affecting your workplace, contact Michele (mlj@zrlaw.com) at 216-696-4441.
Obesity is a Disease: from the A.M.A.’s Lips to the EEOC’s Ears?
By Helena Oroz*Weight loss is somewhat of an obsession in this country. With the likes of New Jersey Governor Chris Christie, Oprah Winfrey, and even former President Bill Clinton talking about their own weight loss experiences, the national conversation about being overweight and losing weight is as animated as ever, among famous folks and regular Joes alike.
Discussing obesity (defined by the U.S. Centers for Disease Control and Prevention as having a body mass index of 30 or higher1), however, seems to make people uncomfortable – even, strangely enough, some doctors who may fail to counsel their patients about it. This is one reason many in the medical community are applauding the American Medical Association’s designation last Tuesday of obesity as a disease requiring treatment and prevention.
“Recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans,” according to A.M.A. board member Patrice Harris, M.D.2 Those who laud the A.M.A.’s decision agree that it may help people in a variety of ways, from changing the way insurance companies reimburse for obesity drugs and treatments to changing the way society views obesity.
Of course, designating one third of Americans as diseased is not going to sit well with everyone (even those who are supposed to benefit from the change). And even though the A.M.A.’s decision carries no legal authority, it does carry influence, so employers have legitimate concerns about how their responsibilities under the Americans with Disabilities Act (“ADA”) may change as a result.
After all, the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) has already massively broadened the scope of the ADA’s protections, and per the U.S. Equal Employment Opportunity Commission (“EEOC”), the determination of disability should not require extensive analysis. If the AMA says obesity is a disease, EEOC Guidance on how to accommodate individuals with this condition may not be far behind.
*Helena Oroz practices in all areas of employment litigation and has extensive experience helping employers comply with the ADAAA. For more information about this ever changing area, please contact Helena (hot@zrlaw.com) at 216.696.4441.
1 In general, the U.S. Centers for Disease Control and Prevention (CDC) considers an adult with a body mass index (BMI) of 30 or higher obese; an adult with a BMI between 25 and 29.9 is considered overweight. Centers for Disease Control and Prevention: http://www.cdc.gov/obesity/ adult/defining.html
2 AMA Press Release: http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm
Z&R Shorts
Zashin & Rich is pleased to announce the addition of Todd Ellsworth to the firm's Employment and Labor Group in its Cleveland office.
Prior to joining Z&R, Todd served as a member of the U.S. Navy. He has represented private and public employers in all areas of labor and employment law and has wide-ranging experience representing employers in collective bargaining negotiations, before state and federal administrative agencies, and state and federal courts. Todd also has broad experience in advising and representing public sector clients concerning Ohio's Sunshine Laws, specifically public records.Best Lawyers ®
Z&R is happy to announce the following Z&R Employment and Labor Group lawyers have been selected for inclusion in Best Lawyers in America 2014:- George S. Crisci
Employment Law Management, Labor Law – Management, and Litigation – Labor and Employment - Jon M. Dileno
Employment Law – Management
- Jonathan J. Downes
Employment Law – Management and Labor Law -- Management
- Stephen Zashin
Labor Law – Management
Thursday, September 12, 2013
Jonathan Downes presents "Workforce Reduction, Layoffs, and Job Abolishments" for the Ohio Government Finance Officers Association Annual Conference at the Hilton Columbus at Easton. For more details, go to www.ohgfoa.com.
Thursday, October 2, 2013
Stephen Zashin will be co-presenting "A Peek Behind the Curtain: Discovery Tactics" at the 50th Annual Midwest Labor and Employment Law Seminar. For more details, go to www.ohiobar.org.
Thursday, October 17, 2013
Jonathan Downes presents "Terminating Employees Without Getting Sued" for the South Central Ohio Human Resource Association. For more details, go to scohrc.com/.
Thursday, November 7, 2013
George Crisci will be part of a panel presenting "It's Always 1983 in the American Workplace" for the ABA Labor and Employment Section's Annual CLE meeting. For more details, go to www.americanbar.org.
Wednesday, November 13 2013
Jonathan Downes presents "Managing the Discipline Process" for the Ohio Association of Chiefs of Police at the Richfield BCII Facility. For more details, go to www.oacp.org.
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