Showing posts with label Americans with Disabilities Act. Show all posts
Showing posts with label Americans with Disabilities Act. Show all posts

Monday, May 18, 2026

Fourth Circuit Joins Sixth Circuit in Rejecting Contractually Shortened Filing Deadlines for Title VII and ADA Claims

By Stephen S. Zashin*

The Fourth Circuit Court of Appeals recently joined the Sixth Circuit in holding that employers cannot enforce contractual provisions that shorten the time employees have to bring claims under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (“ADA”).

In Thomas v. EOTech, LLC, the Fourth Circuit reversed a lower court decision upholding a contractual provision requiring an employee to bring any employment-related claims—including termination, discrimination, and wage claims—within 180 days of the challenged event or action, even where federal law provided for a longer filing period. 169 F.4th 259 (4th Cir. 2026).

The Fourth Circuit explained that allowing employers to shorten statutory filing deadlines would undermine Congress’s “carefully integrated remedial scheme,” make the administrative remedy process more difficult for employees to navigate and could improperly influence how the Equal Employment Opportunity Commission (“EEOC”) prioritizes cases. Id. at 265-267.

However, the Fourth Circuit clarified that parties may still agree to shortened filing deadlines where there is no controlling statute to the contrary, provided that the shortened period is reasonable, and the agreement is not procured through fraud or duress. Id. at 269. The Fourth Circuit also distinguished its holding in Thomas from contractual provisions shortening the time-period to initiate arbitration, emphasizing that federal policy favors arbitration agreements. Id. at 267.

What Should Employers Do Now?


Employers—particularly those in the Fourth and Sixth Circuits—should review their employment agreements and other employment-related contracts for provisions that shorten filing deadlines for federal discrimination claims and revise accordingly.

Further, with both the Fourth and Sixth Circuits now aligned on this issue, multistate employers should consider adopting a uniform national policy that does not rely on contractual limitations periods for federal anti-discrimination claims, as other circuits may soon follow suit.

*Stephen Zashin, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on all employment related matters, including employment discrimination matters. If you have questions about employment agreements or any employment law questions, please contact Stephen at ssz@zrlaw.com or (216)696-4441.

Wednesday, October 6, 2021

EMPLOYMENT LAW QUARTERLY | Volume XXIII, Issue ii

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Employers, OSHA’s Emergency Temporary Standard is Coming. Are You Ready?

By David R. Vance*

The Biden Administration recently announced that it directed the Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) requiring employers to have their employees test negative for COVID-19 each week or get vaccinated. The ETS applies to employers with 100 or more employees. For additional information about the ETS, please see Zashin & Rich’s alert available here. This article provides helpful information for employers that intend to require weekly testing, as compared to mandating the vaccine. Employers with mandatory COVID-19 vaccination policies should also require testing for employees who are exempt from their mandatory vaccination policy based on a medical reason or a sincerely held religious belief.

Depending on the size of your workforce and its level of vaccination, weekly testing can present a significant administrative burden that requires additional staff or the reshuffling of job duties. In addition to creating a weekly testing infrastructure and possibly hiring new employees, additional employer testing considerations include when employees will test, how will employees report their test results, how will employers store the test results, should employers pay employees for the time it takes to test, where will employees test, etc.

While the ETS likely will address some of these questions, the government already has addressed some. For example, the Department of Labor has stated that the Fair Labor Standards Act requires employers to pay employees for employer mandated testing, particularly when such testing occurs during the employee’s normal workday. Employers also likely must compensate non-exempt employees for mandatory tests occurring outside normal work hours. The time involved with taking a COVID-19 test, including the time it takes to receive the test results, varies widely based on the type of test. Since employers should pay employees for testing time, employers will want to limit the time spent testing to the greatest extent possible.

For most employers, the most efficient and cost-effective testing method is rapid antigen testing completed at the employer’s location. Most antigen tests are easy to administer, can detect the presence of COVID-19 in just 15 minutes, and numerous companies provide them.

The COVID-19 pandemic has resulted in significant growth in the rapid test industry. The expected testing requirement under the ETS works similarly to requiring attendees at concerts or sporting events to test negative for COVID-19 before entering such events. Companies like KOACORE (www.koacore.com) have handled many of these types of events and can provide the rapid antigen tests and other testing solutions.

Unfortunately, rapid tests remain increasingly difficult to obtain. Once OSHA issues its ETS, they likely will become even more difficult to obtain. Employers that intend to allow employees to test weekly, as compared to mandating the vaccine, should begin discussions with third party providers (like KOACORE) to ensure they have tests readily available when the ETS takes effect.

We expect legal challenges to OSHA’s ETS. While it is difficult to discern the outcome of any such challenges, OSHA may have a difficult time proving the need for the emergency temporary standard. Regardless, employers should plan as if the ETS will take effect. By controlling the method of testing, employers can control the associated costs and timing of such testing. Doing so also avoids constant employee questions relative to testing locations, types of approved tests, and delayed PCR test results, among other questions.

As with all things COVID-19 related, a number of moving parts exist and employers should contact counsel to evaluate their options and intended plans of action.

*David R. Vance, an OSBA Certified Specialist in Labor and Employment Law, regularly advises clients on labor and employment matters. If you have questions regarding COVID-19’s continued impact on the workplace or other employment matters, please contact David at drv@zrlaw.com or (216) 696-4441.

NLRB: Vague “Savings Clause” Fails to Salvage Overbroad Arbitration Agreement

By Scott H. DeHart*

Arbitration is a popular alternative to litigating employment disputes in court and for good reason: arbitration has many distinct advantages that may include lower costs, quicker results, simpler procedures, and greater confidentiality. Arbitration’s favored status with employers received a major boost in 2018, when the U.S. Supreme Court issued its decision in Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612 (2018). In Epic Systems, the Court held arbitration agreements containing class action (or collective action) waivers - and which require that employment disputes resolve by individualized arbitration – do not violate the National Labor Relations Act (“NLRA”) and are enforceable under the Federal Arbitration Act (“FAA”).

Surely with such a ringing endorsement of mandatory employment arbitration agreements from the nation’s top Court, employers could expect little scrutiny of such policies by the National Labor Relations Board (“Board”) right? Unfortunately, as illustrated by a recent Board decision, the Board did not read Epic Systems to allow employers to run roughshod over employees’ collective-bargaining rights.

In Brinker Int’l Payroll Company L.P., 370 NLRB No. 137 (June 11, 2021), the Board found that a company had committed an unfair labor practice (“ULP”) by compelling its employees to sign a mandatory arbitration agreement that unlawfully restricted the employees’ access to the Board and its processes. Although the company attempted to narrow the scope of its policy with a “savings clause,” the Board found that the savings language did not salvage the company’s unlawful policy.

Since at least 2013, Brinker required its employees (as a condition of their employment) to sign an agreement that required “binding arbitration” of “all disputes involving legally-protected rights (e.g., local, state and federal statutory, contractual or common law right(s)) regardless of whether the statute was enacted or common law doctrine was recognized at the time this agreement was signed.” In 2015, the Board held that Brinker’s policy violated the NLRA. Applying the labor law precedents at that time, the Board found unlawful Brinker’s policy because it required employees to waive their right to pursue class and collective actions in any forum. The Board also found the policy unlawful because it restricted employees’ rights to file ULP charges with the Board. The Board sought enforcement of its ruling against Brinker in the U.S Court of Appeals for the Fifth Circuit. That case remained pending in 2018 when the U.S. Supreme Court issued its decision in Epic Systems. Based on the Supreme Court’s decision, the Fifth Circuit denied enforcement of the Board’s order and returned the case to the Board for additional proceedings.

Taking up Brinker’s arbitration policy for a second time, the Board explained that the FAA’s mandate (to enforce arbitration agreements) is not absolute – it can be overridden by a contrary command from Congress. The Board’s power and responsibility to prevent ULPs is one such command – in other words, “the FAA does not authorize the maintenance or enforcement of [arbitration] agreements that interfere with the right to file charges with the Board.” Brinker, 370 NLRB No. 137, Slip op. at *2. The Board explained that an arbitration agreement that expressly prohibits an employee from filing ULP is unlawful. However, the inquiry does not stop there. The Board established a balancing test in Boeing, 365 NLRB No. 154 (2017) to evaluate whether employer policies pass muster under the NLRA. Under Boeing, some policies are always lawful to maintain (Category #1), others are always unlawful to maintain (Category #3), and others require individual scrutiny by the Board (Category #2).

The Board considered the language of Brinker’s policy and found that it made arbitration the “exclusive forum for resolving all disputes” with Brinker’s employees, which would include claims brought under the NLRA. Because this language restricted employees’ access to the Board, the Board found Brinker’s policy unlawful.

“But wait!” responded Brinker – the mandatory arbitration agreement had a “savings clause” that told employees that the agreement “does not limit an employee’s ability to complete any external administrative remedy (such as with the EEOC).” Surely this would stop employees from wrongly interpreting the policy as a restriction on their right to file ULP charges? Not quite, according to the Board.

Yes, employers might salvage an otherwise overbroad arbitration agreement with a “savings clause” stating that employees “retain the right to file charges with the Board, even if the agreement otherwise includes claims arising under the [NLRA] and within its scope.” But the savings language must explicitly inform employees that they retain the right to file charges and to access the processes of administrative agencies (even if “the Board” or “the NLRB” is not named specifically). Brinker’s “savings clause” made a reference to an “administrative remedy,” but it named the Equal Employment Opportunity Commission (“EEOC”) and not the NLRB. This reference to the EEOC, a “competing” federal agency according to the Board, canceled out any benefits that the savings clause might have had to “safeguard employees’ right to file [ULP]” charges. The Board assigned Brinker’s agreement to Boeing “Category #3” (always unlawful) and ordered Brinker to rescind its arbitration agreements.

Brinker is a cautionary tale about the importance of careful, clear, and explicit drafting and misplaced reliance on “savings” clauses. The lesson applies not only to companies with mandatory arbitration agreements, but any company that maintains employee handbooks or other various policies. A “savings clause” can shape the interpretation (and enforceability) of an arbitration agreement or other policies, but employers should not haphazardly or vaguely write them. The savings clause should adequately safeguard employees’ NLRB rights. Sometimes employers do not want to mention in their documents anything that might invite or inspire employees to consider organizing – for example, specific references to “Section 7” or “collective bargaining” rights or the “NLRB” or “unfair labor practices.” However, the Brinker decision reminds employers that if their language remains too vague, then they might invite scrutiny from the NLRB.

*Scott H. DeHart, a member of the firm’s Columbus office, regularly advises clients on labor and employment matters, including issues relating to arbitration agreements and employee handbooks. If you have questions about the NLRB’s Brinker decision or other employment related issues, please contact Scott at shd@zrlaw.com or (614) 224-4411.

In it for the Long Haul: Long COVID and Reasonable Accommodations

By Marcus A. Pringle*

The COVID-19 pandemic continues to present employers with a multitude of practical and legal issues impacting their workforces. One such issue revolves around employees suffering from long-term effects of COVID-19, i.e., Post-Acute COVID-19 Syndrome or “long COVID,” and whether an employer must provide these employees with reasonable accommodations under the Americans with Disabilities Act (“ADA”).

Under the ADA, a covered “disability” includes a physical or mental impairment that substantially limits a major life activity. Employers cannot discriminate against individuals with disabilities and have a duty to reasonably accommodate employees/applicants with disabilities, unless doing so creates an undue hardship. A reasonable accommodation is a change or adjustment to a job or work environment that permits a person with a disability to perform their job. For example, reasonable accommodations can include a modified work schedule or leave, reassignment, or providing/modifying equipment to aid the employee.

According to the Centers for Disease Control and Prevention, individuals suffering from long COVID experience “a wide range of new, returning, or ongoing health problems . . . four or more weeks after first being infected,” including, but not limited to: difficulty breathing or shortness of breath; tiredness or fatigue; worsening symptoms after physical or mental activities; difficulty thinking or concentrating; chest or stomach pain; headaches; and dizziness. Furthermore, COVID-19 can cause long-term damage to organs including the heart, lungs, and brain.

In July, the Department of Health and Human Services (“HHS”) and the Department of Justice (“DOJ”) jointly issued guidance (available here) addressing long COVID as a disability under the ADA and related statutes. The guidance does not address Title I of the ADA, which covers private employers, and states that “employment is outside of the scope of this guidance document.” However, the guidance still provides information on how government agencies and courts may apply the ADA with respect to employees suffering from long COVID.

In the joint guidance, HHS and the DOJ state that long COVID can meet the definition of a disability under the ADA. In making this determination, an individualized assessment is necessary, i.e., whether a particular person’s symptoms substantially limit a major life activity. The guidance provides the following as examples:

  • “A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.”
  • “A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.”
  • “A person with long COVID who experiences memory lapses and ‘brain fog’ is substantially limited in brain function, concentrating, and/or thinking.”

The guidance also advises that individuals suffering from long COVID may be entitled to reasonable accommodations. While it does not address employment-related accommodations, the guidance provides examples in other contexts, including allowing a student additional time to take a test on account of difficulties with concentrating and allowing a service animal to accompany an individual experiencing dizziness.

In light of the HHS/DOJ’s guidance, it is possible that the U.S. Equal Opportunity Commission and courts may take a similar approach with respect to the ADA and long COVID. As such, employers should consider whether long COVID may trigger the ADA’s (and similar state laws’) protections and requirements, including providing employees with reasonable accommodations. As the ADA requires an individualized approach, employers should contact counsel with questions regarding whether an employee with symptoms of long COVID may qualify as disabled and the types of accommodations that they may have to provide.

*Marcus A. Pringle practices in all areas of labor and employment law. For more information about the HHS/DOJ’s long COVID guidance or questions about the ADA and reasonable accommodations in general, please contact Marcus at map@zrlaw.com or (216) 696-4441.

EEOC Releases New Resources on the Workplace Rights of LGBTQ+ Employees

By Jantzen D. Mace*

In June, to honor Pride Month and the anniversary of the U.S. Supreme Court’s ruling in Bostock v. Clayton County, the EEOC released new resources to educate employees, applicants, and employers about the rights of all employees to remain free from sexual orientation and gender identity discrimination in employment. The EEOC released the new resources online which include a new landing page and a new technical assistance document titled: “Protections Against Employment Discrimination Based on Sexual Orientation and Gender Identity.” The EEOC confirmed that these resources rely on previously voted positions adopted by the Commission and do not represent a change in EEOC policy.

The EEOC’s new landing page consolidates information and resources regarding the scope of protections against sexual orientation and gender identity discrimination in the workplace. The page also contains information about harassment, retaliation, and how to file a charge of discrimination with the EEOC. Additional resources include links to EEOC statistics and updated fact sheets about recent EEOC litigation and federal sector decisions regarding sexual orientation and gender identity discrimination.

The technical assistance document, accessible through the new landing page, contains a series of questions and answers which should help the public understand the Bostock decision and the EEOC’s positions on the laws that the agency enforces. The Q&As address issues concerning Title VII coverage of employers, employees, and types of discriminatory actions that may fall under the statute’s protections, as well as issues more closely related to discrimination based on sexual orientation and gender identity.

Employers should take note of the following points raised by the Q&As:
̶ Workplace Attire. Covered employers may not require a transgender employee to dress in accordance with the employee’s sex assigned at birth. Prohibiting an employee from dressing or presenting themselves consistent with that person’s gender identity constitutes sex discrimination.

̶ Bathrooms, Locker Rooms, and Showers. Employers may have separate, sex-segregated bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. Where an employer has separate bathrooms, locker rooms, or showers for men and women, employers should allow transgender individuals to use the facilities of the gender with which they identify.

̶ Pronouns and Names. The use of pronouns or names that are inconsistent with an individual’s gender identity may amount to harassment, which includes unwelcome conduct that is based on gender identity. To be unlawful, the conduct must be “severe or pervasive” when considered along with all other unwelcome conduct based on the individual’s sex (which includes gender identity), such that the conduct creates a work environment that a reasonable person would consider intimidating, hostile, or offensive. Though accidental misuse of a transgender employee’s preferred name or pronouns does not violate Title VII, intentional and repeated use of that individual’s wrong name or pronouns could contribute to an unlawful hostile work environment.
The new landing page and technical assistance document are part of the EEOC’s effort to ensure that the public can find accessible, plain language materials in a convenient location on the EEOC’s website. “All people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination,” EEOC Chair Charlotte A. Burrows said. “The new information will make it easier for people to understand their rights and responsibilities related to discrimination based on sexual orientation and gender identity.” They also provide a good resource for employers hoping to address these topics.

The new landing page can be accessed at the following link: https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination.

*Jantzen D. Mace, a member of the firm’s Columbus office, practices in all areas of labor and employment law. For more information about these resources or the rights of LGBTQ+ employees, please contact Jantzen at jdm@zrlaw.com or (614) 224-4411.

Safer Federal Workforce Task Force Issues COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors

*By Scott Coghlan

On September 9, 2021, the Biden Administration announced a six-point COVID-19 Action Plan to combat the coronavirus. The Action Plan directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) applicable to private employers with 100+ employees that will mandate full vaccinated status or weekly negative COVID-19 tests for such employees. OSHA has not issued the ETS and the Action Plan did not set a deadline for the issuance of the ETS.

On that same date, President Biden issued an Executive Order directing the White House’s Safer Federal Workforce Task Force (Task Force) to issue new guidance (Guidance) regarding vaccination requirements and other COVID-19 safety measures for federal contractors and subcontractors. On September 24, 2021, the Task Force published its COVID-19 safety protocols. The Guidance imposes three primary requirements on federal contractors and subcontractors:
  1. Employees of covered contractors must be fully vaccinated, except for those that are legally entitled to an accommodation;
  2. Covered contractor workplaces must require masks and physical distancing for all employees, visitors and others; and,
  3. Covered contractors must designate a person to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

Which Federal Contracts Are Subject to the Guidance?

The following delineates the contracts or contract-like instruments entered into with the Federal Government subject to the Guidance:
  • For services, construction or a leasehold interest in real property;
  • For services covered by the Service Contract Act;
  • For concessions, including any concessions contract excluded by Department of Labor regulations; or
  • Entered into with the Federal Government in connection with Federal property or land and related to offering services for Federal employees, their dependents or the general public.
The Guidance does not apply to grants, contracts under the Indian Self-Determination and Education Assistance Act, under certain values set forth in the Federal Acquisition Regulation or subcontracts that relate solely to for the provision of products. Notably, the Guidance also does not apply to covered contractor employees who only perform work outside of the United States.

The Executive Order requires that contracts contain a clause that specifies that the contractor or subcontractor shall comply with all guidance for contractor and subcontractor work locations published by the Task Force. The prime contractor must include this clause in contracts with first-tier subcontractors and subcontractors must ensure that the clause exists with lower tier subcontracts.

When Do the Guidance Requirements Go Into Effect?

For contracts awarded before October 15, 2021, the requirements must become part of the contract when an option is exercised or an extension is made. Between October 15 and November 14, 2021, federal agencies must include the requirements in the solicitation documents. From November 14, 2021 forward, the requirements must be made part of any new contract.

Important Definitions

The Guidance has many defined terms, but those of primary importance are:
  • A covered contractor – means “a prime contractor or subcontractor at any tier who is a party to a covered contract.”
  • A covered contractor employee – means “any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace” and “includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” The phrase “in connection with” refers to employees who perform tasks necessary to perform the contract but are not directly engaged in performing the actual work such as human resources and billing personnel.
  • A covered contractor workplace – means “a location controlled by a covered contractor at which any employee of a covered contractor is working on or in connection with a covered contract is likely to be present during the performance for a covered contract” but “does not include a covered contractor employee’s residence.”

The Primary Requirements Imposed on Federal Contractors and Subcontractors

Vaccination

The Guidance requires fully vaccinated covered contractor employees by December 8, 2021 unless they are legally entitled to an accommodation due to a medical condition or sincerely held religious belief, practice or observance. After that date, all such employees must be fully vaccinated by the first day of the performance of a newly awarded covered contract. This includes employees that have already had COVID-19 and employees working remotely from home. The Guidance also provides for an “urgent, mission-critical” exception if a federal agency requires covered contractor employees to commence work before becoming fully vaccinated. In that case, the covered contractor must ensure that the employees are fully vaccinated within 60 days of their beginning work on the contract.

Covered contractors are not required to provide vaccines to their employees nor are they required to pay employees for their time and expense for getting vaccinated (Note: This differs from the forthcoming OSHA ETS which will require employers to provide employees with paid leave to get vaccinated and to recover from vaccine side effects). However, covered contractors must verify each employee’s vaccination status by having the employee show or provide one of the following documents (a digital copy such as PDF, digital photograph or scanned image is acceptable):
  • A copy of the immunization record from a health care provider or pharmacy
  • A copy of the COVID-19 Vaccination Record Card
  • A copy of medical records documenting the vaccination
  • A copy of immunization records from a public health or State immunization information system or
  • A copy of any other official documentation verifying vaccination that states the vaccine name, date(s) of administration of the vaccine and the name of the health care professional or clinic site that administered the vaccine

Mask and Social Distancing Requirements

Covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at covered contractor workplaces. In areas of high or substantial community transmission, even fully vaccinated persons must mask indoors. In areas of low or moderate community transmission, fully vaccinated persons do not need to mask indoors. Regardless of transmission levels, fully vaccinated persons do not have to physically distance.

Consistent with CDC guidelines, covered contractors may provide exceptions to masking and/or physically distancing if an individual is alone in an enclosed office or while eating or drinking, if physical distancing is maintained. Similarly, if a workplace risk assessment determines that wearing a mask would create a safety risk, an exception to masking is permitted. Exceptions must be approved in writing by the person designated by the contractor to ensure compliance with the Guidance.

Covered contractors are required to check the CDC COVID-19 Data Tracker County View website at least weekly to determine the level of community transmission in all areas where they have a covered contractor workplace in order to determine the appropriate safety protocols. When the community transmission level rises from low or moderate to substantial or high, the contractor is instructed to put it place more protective safety protocols consistent with CDC guidelines. However, when the community transmission level is reduced from high or substantial to moderate or low, the level must remain at the lower level for at least two weeks before a contractor may implement safety protocols recommended for the lower community transmission rate.

Designation of a Person to Coordinate COVID-19 Safety Efforts

Covered contractors must designate one or more persons to ensure compliance with the Guidance and its workplace safety protocols. The designated persons must provide information on required COVID-19 safety protocols to covered contractor employees and all other individuals at a covered contractor workplace. Communication of these safety protocols may occur by email, websites, signage or other means in a readily understandable manner.

What About Work From Home Employees?

Individuals authorized to work from home under the covered contract must comply with the vaccination mandate. This is true even if the employee never works at a covered contractor workplace or Federal workplace during the performance of the contract. However, residences are not considered covered contractor workplaces so work from home employees do not have to comply with masking and physical distancing while in their residence.

Will Federal Contractors Have to Comply with OSHA’s Forthcoming ETS?

Yes. Covered contractors will need to comply with other workplace safety standards, including OSHA’s forthcoming ETS for employers with 100 or more employees.

What Should Employers Do Now?

Employers should consider taking the following steps now in order to follow the new Guidance:
  • Review existing contracts or current bids for solicitation to see if the Guidance applies to your contract, workplace and employees
  • Designate a company representative to implement the Guidance
  • Create a plan to obtain employee vaccination verification
  • Develop a protocol to ensure weekly review of the CDC COVID-19 Data Tracker County View and the manner in which updated transmission levels and safety protocols will be communicated to employees, visitors, vendors or others that are likely to be present at a covered employer workplace
  • Determine how medical and religious based vaccination and mask requirements accommodation requests will be processed and what accommodations are available
  • Ensure that you are prepared to amend existing contracts with lower tier subcontractors to include the mandatory clause requiring compliance with all guidance published by the Task Force

*Scott Coghlan chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation and OSHA related matters. If you have a question about the Ohio BWC’s or OSHA’s response to COVID-19 or any other workers’ compensation or OSHA related questions, please contact Scott at sc@zrlaw.com or (216) 696-4441.

Z&R Shorts

Please join Z&R in welcoming Sarah Moore and Marcus Pringle to its Employment and Labor Groups


Sarah Moore has served both public and private sectors for over 25 years regarding labor and employment matters. Sarah has utilized traditional, modified, and IBB bargaining models in negotiations with unions that include AAUP, AFSCME, Cleveland Building Trades, CWA, IAFF, IBEW, FOP, NCF&O, OAPSE, OEA/NEA, OFT/AFT, OPBA, Laborers, SEIU, Steelworkers, Teamsters, and UAW. She regularly supports management with contract administration and handles arbitrations and factfinding proceedings. Sarah also litigates labor issues before state and federal courts (including injunctions and mandamus actions) and administrative agencies (ULPs and representation matters). Sarah advocates on employment matters in state and federal courts, including issues of benefits and pay, discrimination, harassment, restrictive covenants, as well as constitutional and contract-based claims. She has also litigated workers’ compensation appeals, negligence, and special education cases.

Marcus Pringle's practice encompasses all areas of employment and labor law. Marcus has experience defending against charges of discrimination and retaliation, sexual harassment, unfair labor practices, and workers’ compensation matters. Marcus earned his law degree from Cleveland-Marshall College of Law, where he was the Director of Operations for the Entertainment and Sports Law Association, Executive Assistant for the Great Lakes Sports and Entertainment Law Academy, and member of the Trial Advocacy Team. Marcus earned his B.S. in Broadcast Journalism from the Pennsylvania State University and is a graduate of Hudson High School.

Upcoming Speaking Engagements


October 14, 2021
Stephen Zashin presents “Trade Secret Boom: Key Trends in Non-Compete and Trade Secret Cases” with Justin Flamm at the Ohio State Bar Association’s 58th Annual Midwest Labor and Employment Law Seminar in Columbus, Ohio. Information regarding day one of the OSBA’s Midwest Seminar can be found here.

October 15, 2021
Sarah Moore presents “Technology Changing the Labor Law Practice: Negotiations, Mediations and Arbitrations” with Paul Unger, Daniel Zeiser, and R. Jessup Gage at the Ohio State Bar Association’s 58th Annual Midwest Labor and Employment Law Seminar in Columbus, Ohio. Information regarding day two of the OSBA’s Midwest Seminar can be found here.

Wednesday, November 2, 2016

EMPLOYMENT LAW QUARTERLY | Volume XVIII, Issue iii

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Not So Fast (Food): Ohio Employer Goes Too Far With Supersized Influence Over His Employees’ Voting Decisions

By Brad S. Meyer*

With a hotly debated election season upon us, everyone seems to have an opinion on the candidates and significant ballot issues. While political discussions are common in the workplace, Ohio employers cannot influence their employees’ votes.

More specifically, Ohio has a statute limiting an employer’s influence over how employees vote on Election Day. Ohio Revised Code 3599.05 makes it illegal for an employer or his agent or a corporation to:

print or authorize to be printed upon any pay envelopes any statements intended or calculated to influence the political action of his or its employees; or post or exhibit in the establishment or anywhere in or about the establishment any posters, placards, or hand bills containing any threat, notice, or information that if any particular candidate is elected or defeated work in the establishment will cease in whole or in part, or other threats expressed or implied, intended to influence the political opinions or votes of his or its employees.

A violation of this statute is punishable by a fine of $500 - $1,000.

In 2011, the owner of a fast food restaurant violated R.C. 3599.05 when, in the month preceding the election, the employer enclosed a letter containing the company’s logo on it with each employee’s pay check that stated:

As the election season is here we wanted you to know which candidates will help our business grow in the future. As you know, the better our business does it enables us to invest in our people and our restaurants. If the right people are elected we will be able to continue with raises and benefits at or above our present levels. If others are elected we will not. As always who you vote for is completely your personal decision and many factors go into your decision.

The letter then listed the candidates the owner believed would help the business move forward.

At least one employee filed a complaint against the owner with local prosecutors. The Ohio Secretary of State investigated the claim and recommended charges against the owner. Ultimately, the owner pled no contest to a violation of R.C. 3599.05 and agreed to pay a $1,000 fine.

Accordingly, Ohio employers must understand that there are limits to the amount of influence they can exert over their employees’ choices at the ballot box. If an employer wishes to publish political opinions to their employees, they should consult counsel to help avoid violating the law.
*Brad S. Meyer practices in all areas of public and private labor and employment law. For more information on political speech in the workplace or other labor and employment questions, please contact Brad at bsm@zrlaw.com or 216.696.4441.




Elections and the Workplace: Employee Time Off for Voting

By Brad E. Bennett*

As Election Day approaches, employers will receive requests from employees for time off from work to go vote. As there is no federal law governing time off for voting, numerous states have enacted laws governing employee leave for voting. In the 29 states that currently have laws providing for voting leave, the requirements vary. For example, 21 of those states require employers to provide paid time off to employees to vote.

The following table summarizes the key aspects of state voting laws:
DOWNLOAD PDF OF TABLE


In addition to the state laws summarized above, employers also should know about any local ordinances relating to employee time off for voting. With Election Day fast approaching, employers should understand the validity of an employee request for time off to vote and prepare for the impact of any voting-related absences upon business operations.

*Brad E. Bennett practices in all areas of public and private labor and employment law. For more information on employee leave or other labor and employment questions, please contact Brad at beb@zrlaw.com or 614.224.4411.




EEOC Changes the Notice Employers are Required to Provide Employees Participating in an Employee Health Program

By Patrick J. Hoban*

The Equal Employment Opportunity Commission (“EEOC”) recently published final rules under the Americans with Disabilities Act (“ADA”) for employers who offer certain wellness programs that collect employee health information. Specifically, the EEOC detailed what type of notice employers must provide regarding the use of employee health information. According to the EEOC, the new rules ensure that Employee Health Programs (“EHPs”) “are reasonably designed to promote health and prevent disease, that they are voluntary, and that employee medical information is kept confidential.”

Generally, the ADA prohibits employers with 15 or more employees from discriminating against individuals on the basis of a disability. To prevent such discrimination, the ADA restricts employers with respect to obtaining medical information from employees and applicants. Notwithstanding the general restriction, however, the ADA permits employers to make certain inquiries of employees regarding their health and to conduct medical exams of employees when such requests are part of voluntary EHPs.

Voluntary EHPs encompass health promotion and disease prevention programs and activities offered to employees as part of an employer sponsored health plan or as a benefit of employment. The EEOC promulgated the new rules to guide employers who may offer incentives to employees to participate in wellness programs that require them to answer disability-related inquiries or undergo a medical examination.

Under the ADA, participation in an EHP must be voluntary. An EHP is voluntary if: (1) it does not require employees to participate; (2) it does not deny coverage under any of its group health plans or limit the extent of benefits (with some limited exceptions) due to non-participation; (3) it does not result in any adverse employment action or retaliation against any employees; and (4) it provides notice to employees regarding the use of their health information.

The new rules issued by the EEOC provide employers further guidance on the fourth prong of the voluntary test - the notice requirement. While the EEOC provides a Sample Notice for Employee-Sponsored Wellness Programs, employers are not required to use the EEOC sample. Under the new rules, an employer is required to provide employees with notice that: “(A) is written so that the employee from whom medical information is being obtained is reasonably likely to understand it; (B) describes the type of medical information that will be obtained and the specific purposes for which the medial information will be used; and (C) describes the restrictions on the disclosure of the employee’s medical information, the employer representatives or other parties with whom the information will be shared, and the methods that the covered entity will use to ensure that medical information is not improperly disclosed (including whether it complies with the measures set forth in the HIPAA regulations).”

After much debate, the EEOC declined to include a requirement that employees participating in EHPs provide prior written and knowing confirmation that their participation is voluntary. In making its determination, the EEOC sought to ensure that no employee unwittingly authorized the dissemination of confidential and protected information, while refusing to place unwieldy burdens on an employer. In order to balance those competing interests, the EEOC ruled that “a covered entity may not require an employee to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information, or to waive confidentially protections available under the ADA as a condition for participating in a wellness program or receiving a wellness program incentive.”

The EEOC rules go into effect on the first day of the first plan year for benefits beginning on or after January 1, 2017. With open enrollments quickly approaching, it is important for employers to make sure they are familiar with the new EEOC rules. Employers can expect the EEOC and employee groups to enforce compliance with the new notice rules through litigation.

Employers also must understand that this is just one of the rules that govern EHPs. Implementation of these programs requires compliance with a host of laws and regulations, including but not limited to: HIPAA, Title II of GINA (also enforced by the EEOC), the Affordable Care Act and others.

*Patrick J. Hoban practices in all areas of employment and labor law. If you have questions about employee health programs or other employment and labor law issues, please contact Pat (pjh@zrlaw.com) at 216.696.4441.




Religious Discrimination on the Horizon: EEOC Targets Enforcement

By Drew C. Piersall*

In a series of moves, the Equal Employment Opportunity Commission (“EEOC”) recently demonstrated its intent to pursue religious discrimination claims more actively. In July, the EEOC released a fact sheet “designed to help younger workers understand their rights and responsibilities” under anti-discrimination laws. The EEOC also announced its improved coordination with the Department of Labor (“DOL”) to prevent religious discrimination among federal contractors and subcontractors.

Title VII of the Civil Rights Act of 1964 (“Title VII”) forbids religious discrimination. Specifically, the statute’s “disparate treatment” provision prohibits employers from failing/refusing to hire, discharging, or otherwise discriminating against an applicant/employee “because of” the applicant’s/employee’s religion. Title VII defines religion to include all aspects of religious observance, practice, and belief.

Religious disparate treatment claims often arise in the form of “failure to accommodate” allegations. Generally, to succeed on a failure to accommodate claim, the applicant/employee initially must prove that: (1) he/she holds a sincere religious belief that conflicts with a job requirement; (2) he/she informed the employer about the conflict; and (3) the employer discharged or disciplined the applicant/employee for failing to comply with the conflicting job requirement.

Title VII defines religious belief broadly. For example, one court acknowledged that Title VII provides atheists with the same protections as members of other religions and found a plaintiff’s atheistic beliefs sincere. See Mathis v. Christian Heating and Air Conditioning, Inc., 158 F. Supp. 3d 317 (E.D. Pa. 2016). There, the plaintiff’s atheistic beliefs conflicted with a job requirement to wear an I.D. badge that included a religious mission statement.

The United States Supreme Court recently relieved applicants/employees from demonstrating, in some cases, that the applicant/employee informed the employer of a conflict between the job requirement and religious belief. In EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), the Court held the employer does not need specific knowledge of the applicant’s/employee’s religion or need for accommodation in intentional religious discrimination cases. Rather, an employer who acts with the motive to avoid an applicant’s/employee’s religious practice or need for religious accommodation – even if based on nothing more than an unsubstantiated suspicion – may violate Title VII. An applicant’s/employee’s religion cannot be a “motivating factor” in the employer’s decision.

If an applicant/employee establishes a prima facie failure to accommodate claim, the employer must show that accommodating the employee would impose an undue hardship on the employer. Undue hardship means more than a de minimis cost. Historically, courts have considered accommodations that result in the following undue hardships: requiring an employer to pay overtime; requiring an employer to hire replacement employees; requiring an employer to make additional contributions to insurance and pension funds; requiring an employer to take action that compromises schedule or seniority systems; and requiring an employer to risk regulatory or criminal sanctions.

In addition, Title VII mandates that an employee cooperate with the employer’s attempts to provide a religious accommodation. Courts may be more likely to find undue hardship where the employee refuses to compromise. For example, a FedEx employee insisted that she keep her operations manager position and get all Saturdays off. The company showed such arrangement would have created a safety risk because the company needed all managers available every day during peak season to assist in loading and launching aircraft. The court found that allowing the employee not to work during peak season imposed an undue hardship. See Burdette v. Federal Express Corp., 367 Fed. App’x 628 (6th Cir. 2010).

Employers should address claims of religious discrimination and requests for accommodation carefully and on an individualized basis. In its Abercrombie & Fitch decision, the United States Supreme Court concluded Title VII does not demand mere neutrality with regard to religious practices. Rather, “it gives [employees seeking religious accommodations] favored treatment.” When evaluating accommodation requests, employers should evaluate carefully the costs of an accommodation, work with the employee to find a solution, and contact employment counsel with questions.

*Drew C. Piersall practices in all areas of employment and labor law. If you have questions about religious discrimination, accommodations, or the EEOC’s enforcement efforts, please contact Drew (dcp@zrlaw.com) at 614.224.4411.




Z&R SHORTS


Please join Z&R in welcoming Scott DeHart to its Employment and Labor Groups


Scott DeHart’s practice will focus on all areas of private and public sector labor and employment law and litigation. Scott graduated summa cum laude from New York Law School, where he focused his studies on labor and employment law. As a law student, Scott was selected as Champion of the NKU Grosse Moot Court Competition. Prior to joining Zashin & Rich, Scott pursued a career as a Human Resources practitioner, most recently as a Director of Human Resources at Columbia University. In that capacity, Scott ensured the effective design and administration of a broad range of HR programs and served on the university’s collective bargaining team.

Upcoming Speaking Engagements


Monday, November 7, 2016
George S. Crisci presents “The National Labor Relations Board – Obligations and Compliance” and “Other Employment Laws You Need to Know” at the National Business Institute’s Seminar on Human Resource Law from Start to Finish at the CMBA Conference Center, One Cleveland Center, 1375 E 9th St, Cleveland, Ohio 44114.

Friday, November 18, 2016
Jonathan J. Downes presents “FLSA – New Rules and Practical Solutions” at the CAAO Winter Conference during the 9:00 am – 10:30 am session. The conference takes place at the Embassy Suites Dublin, 5100 Upper Metro Place, Dublin, 43017.

Thursday, December 8, 2016
George S. Crisci will participate, as the Management Panelist, in the presentation “A View from the Chair of the National Labor Relations Board.” The featured panelist will be NLRB Chairman Mark G. Pearce. Patrick J. Hoban will participate, as the Management Panelist, in the presentation “Applying the NLRA to Employer Handbooks and Other Employer Policies.” The presentations will occur at 12:30 p.m. and 1:45 p.m., as part of the Ohio State Bar Association’s “National Labor Relations Board Update: Times and Laws are Changing” seminar, which will be held at the Ohio State Bar Association headquarters, 1700 Lake Shore Drive, Columbus, Ohio 43204.

For more information regarding this seminar, please contact Linda Morris – CLE Program Coordinator for the Ohio State Bar Association at 614-487-4408 or email at lmorris@ohiobar.org.

Monday, March 28, 2016

EMPLOYMENT LAW QUARTERLY | Volume XVIII, Issue i

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College Football, Alcoholism, and the Americans with Disabilities Act


By Stephen S. Zashin*

In December 2015, Steve Sarkisian, former University of Southern California (“USC”) head football coach, sued USC for wrongful termination. Sarkisian alleged that USC discharged him based on a disability in violation of the law. In particular, Sarkisian claimed: he suffered from alcoholism; he sought professional help; he requested time off from USC to get help; USC placed him on indefinite leave; and USC fired him while he traveled to a rehabilitation program. According to Sarkisian, instead of supporting his disability, USC “kicked him to the curb.”

Under federal law, the Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against qualified employees on the basis of a disability. Qualified employees are those who, with or without reasonable accommodation, can perform the essential functions of the job.

Alcoholics are not automatically excluded from the ADA’s coverage, as alcoholism can constitute a disability. However, current alcohol abuse does not give employees license to act with impunity. Rather, employers may hold alcoholics to the same performance and behavior standards as other employees. An employer may still discharge alcoholic employees based on misconduct (e.g., drinking on the job, driving a company vehicle drunk, etc.).

Sarkisian may struggle to establish his status as a qualified employee on two grounds. Reports suggest that Sarkisian was intoxicated during football games, practices, and while on team flights. Sarkisian attempted to explain away these incidents in his complaint. For example, he claims that during the Salute to Troy (pep rally), two light beers and anxiety medication (not inebriation) caused him to slur his words and use an expletive during his speech.

Sarkisian also may struggle to establish whether he could perform the essential functions of the head coach job with or without a reasonable accommodation. Under the ADA, an employee bears the initial burden of proposing an accommodation and showing that the accommodation is objectively reasonable. An employer does not have to provide accommodations where the employer can demonstrate the accommodation would impose an undue burden on its business operations.

In his complaint, Sarkisian alleged that he requested a reasonable accommodation which would not unduly burden USC - time off to get the help he needed. Sarkisian claimed his request for leave did not place an undue burden on USC because the University already appointed an interim head coach, the interim head coach called plays the entire season, and the interim head coach successfully led USC to a PAC-12 South Championship and bowl game. In contrast, USC likely will argue substantial time off would have been unreasonable and prevented Sarkisian from performing his essential job functions. For example, while on leave Sarkisian could not recruit coveted high school football players or spend time with boosters and alums to fundraise.

This high profile litigation provides useful lessons for employers. Employers may maintain their performance and behavior standards for current abusers of alcohol. This case demonstrates the difference between current alcohol abuse and those who seek treatment for alcoholism. Current alcohol abusers are not protected by the ADA relative to their conduct. However, those who seek treatment for alcohol abuse are entitled to reasonable accommodation by their employers. Any employer faced with a similar situation to Sarkisian should contact legal counsel to better understand their rights.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law and the head of the firm’s Labor, Employment and Sports Law Groups, has extensive experience counseling employers on the Americans with Disabilities Act, reasonable accommodations, and sports related issues. For more information about the ADA or your labor, employment or sports law needs, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.




Myths and Stereotypes – HIV and the Workplace


By Ami J. Patel*

The Equal Employment Opportunity Commission (“EEOC”) recently released guidance concerning the Americans with Disabilities Act’s (“ADA”) protections of HIV-positive employees. The EEOC plays a self-proclaimed “critical role in eradicating employment discrimination against those living with HIV/AIDS.” In 2014, the EEOC settled 197 HIV-related Charges of Discrimination against employers for $825,674.

Employers should address employee-related HIV issues with care. Employers may only inquire about the HIV status of an employee under limited circumstances. Generally, employers cannot ask HIV-related questions before making a job offer. However, an employer may ask medical questions in the following circumstances:

  • The employer asks the question(s) for affirmative action purposes and any employee response is voluntary;
  • An employee requests a reasonable accommodation;
  • The question occurs post-job offer and pre-employment, and the employer asks the same question of everyone entering the same job category; or
  • On the job, where the employer has objective evidence that the employee may be unable to do the job or may pose a significant safety risk because of his/her medical condition.

Employers also should determine whether an employee’s HIV-positive status qualifies as a disability. The ADA defines disability as a physical or mental impairment that substantially limits one or more major activities. The EEOC contends HIV-positive employees “easily” qualify under the ADA’s definition, since HIV substantially limits the immune system’s functions in the absence of medical treatment. However, at least one court found that a former employee’s HIV-positive status did not limit any major life activities where: HIV did not impact his job performance; he was “super energetic;” he had “well controlled” and “well treated” HIV; and he did not take HIV medication. Rodriguez v. HSBC Bank USA, N.A., No. 8:14-cv-945-T-30TGW, 2015 U.S. Dist. LEXIS 157883 (M.D. Fla. Nov. 23, 2015). Therefore, HIV-positive status alone may not qualify an employee as disabled under the ADA.

Assuming an employee’s HIV renders the employee “disabled,” the employee receives certain ADA protections. Employers may not discriminate against or harass an employee simply because the employee is HIV positive. In addition, the employee may be entitled to a reasonable accommodation if HIV negatively affects the employee’s job performance. This could occur from the HIV infection, side effects of HIV medication, or other medical conditions caused by HIV. Examples of reasonable accommodations include altered break or work schedules, changes in supervisory methods, and time off. Once an employee requests an accommodation, the employer should engage in an interactive process to determine what, if any, accommodation will enable the employee to perform the essential functions of the job. The employer does not have to remove the job’s fundamental duties (i.e., essential functions), let the employee do less work for the same pay, or tolerate lower-quality work through an accommodation.

Under limited circumstances, an employer may consider health or safety when deciding whether to hire or retain an HIV-positive employee. Employers do not have to retain employees who are unable to perform their job or who pose a direct threat (significant risk of substantial harm) to the health or safety of the employee or others. However, the employer must first establish it cannot reduce or eliminate that harm through a reasonable accommodation. In addition, the employer must have objective evidence (typically a medical expert) that the employee cannot perform the job or that the employer cannot eliminate the safety risk.

Ultimately, given the EEOC’s focus on the treatment of employees infected with HIV, employers should address HIV-related concerns carefully and contact counsel with questions.

*Ami J. Patel practices in all areas of labor and employment law. If you have questions about the ADA and HIV in your workplace, please contact Ami at (ajp@zrlaw.com) or 216.696.4441.



Ohio Supreme Court Finds Ohio’s Minimum-Wage Law Constitutional


By Brad E. Bennett*

On March 17, 2016, the Ohio Supreme Court issued its much anticipated ruling in Haight v. Minchak, 2016-Ohio-1053. Haight involved a challenge to Ohio’s minimum wage statute by two outside sales representatives of the Cheap Escape Company. The two alleged that outside sales representatives were “employees,” as defined under the 2006 Fair Minimum Wage Amendment to Ohio’s Constitution (“Amendment”), and, as a result, were entitled to minimum wage. The employees argued that Ohio’s minimum wage statute, which was enacted after passage of the Amendment, was unconstitutional since it adopted the exemptions to the definition of “employee” under federal law.

In November 2006, Ohio voters approved the Amendment, which established the Ohio minimum wage and provided for annual adjustments. The Amendment defines an “employee” as having the same meanings as under the federal Fair Labor Standards Act (“FLSA”) and states that the Ohio General Assembly shall pass no laws that “restrict any provision of the law.” The employees focused on this language of the Amendment to attack the later enacted minimum wage statute.

After voter approval of the Amendment, the Ohio General Assembly immediately enacted the minimum wage statute clarifying that “employee,” as defined under Ohio law, “does not mean individuals who are excluded from the definition of ‘employee’ under [the FLSA].” Cheap Escape argued that since the FLSA specifically exempts outside salespeople (and others) from the minimum wage requirements, the same exclusions should apply under Ohio law.

The employees, on the other hand, argued that the definition of “employee” as contained in the Amendment did not expressly exclude employees who are exempt from minimum wage requirements under the FLSA. They argued that Ohio’s statute, by excluding outside sales representatives from minimum wage protection, was unconstitutional since it impermissibly restricted the definition of employee as laid out in the Amendment.

The trial court sided with Cheap Escape. However, the Court of Appeals reversed course determining that even if individuals such as outside salespeople are exempt from the FLSA’s minimum wage provisions, they still remain “employees” as that term is defined by the FLSA. According to the Court of Appeals, since the definition of “employee” includes outside salespeople, the Ohio legislature impermissibly narrowed the definition of employee in the statute when it excluded outside salespeople. The employer promptly appealed to the Ohio Supreme Court.

The Ohio Supreme Court reversed the Court of Appeals. In doing so, it focused on the fact that the Amendment states that “employee” shall have the same “meanings” as in the FLSA. The Supreme Court rationalized that the Amendment’s use of the plural indicated that “more than one definition applies, which then necessarily includes both exclusions and exemptions.” Based upon this interpretation, the Ohio Supreme Court concluded that Ohio’s minimum wage statute simply captured all of the “meanings” of employee under the FLSA and was constitutional.

This is a welcome decision for Ohio Employers as it maintains the status-quo. Had the Supreme Court allowed the Court of Appeals' decision to stand, Ohio employers would have faced serious exposure to minimum wage claims, as they would have been unable to rely upon the federal minimum wage exclusions. Employers also would have been required to apply competing federal and state standards with varying levels of recordkeeping and reporting requirements.

*Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment law, regularly counsels public and private employers on wage and hours issues. For more information about this recent ruling or your wage and hour law needs, please contact Brad (beb@zrlaw.com) at 614.224.4411.



Joint Employers: Dealing with Marijuana Legalization


By Patrick M. Watts*

Last November, many Ohio employers exhaled a sigh of relief after voters just said no to Issue 3, which would have amended the State Constitution to legalize recreational and medical marijuana. Although the prospect of recreational marijuana legalization no longer seems imminent, medical marijuana is a different story. In the wake of Issue 3, there has been an increased focus in Ohio on medical marijuana by proponents and politicians alike. The Ohio House of Representatives created a bipartisan taskforce to explore the possibility of legalizing medical marijuana. The Ohio Senate recently held a string of public hearings regarding medical marijuana. During an appearance on the Late Show, Governor John Kasich voiced an openness to the idea stating, “when it comes to medical marijuana, if the experts come back and say we need this for people who have seizures, I’m for that.” Ohio employers should be prepared for the possibility of dealing with the implications of medical marijuana in the not-too-distant future.

Currently, 23 states and Washington D.C. have legalized medical or recreational marijuana. Under the federal Controlled Substances Act, however, marijuana remains classified as a Schedule I illegal substance. A recent SHRM survey of employers in states that have legalized marijuana found 94% of respondents maintained written substance abuse policies. Employer drug policies in these states have led to litigation, including claims under the Americans with Disabilities Act and similar state laws by employees with medical marijuana prescriptions for disabilities. Fortunately for employers, the federal prohibition on marijuana has been a successful defense to such claims.

For example, a federal district court in Washington dismissed disability discrimination and retaliation claims brought by an employee who was terminated after he tested positive for marijuana, despite having a valid state medical marijuana prescription. See Swaw v. Safeway, Inc., No. C15-939 MJP, 2015 U.S. Dist. LEXIS 159761 (W.D. Wash. Nov. 20, 2015). In Swaw, the employer’s drug-free workplace policy prohibited testing positive for any drugs or substances “listed in any controlled substances acts or regulations applicable under federal, state, or local law.” The plaintiff tested positive for marijuana after an on-the-job injury, resulting in his termination. Subsequently, he brought a lawsuit alleging disability discrimination claiming: (1) he had a valid prescription to use marijuana outside of work to treat his disabilities; and (2) his employer disciplined him more harshly than other employees that were found to be intoxicated with alcohol at work.

In rejecting the plaintiff’s discrimination claim, the court first noted that Washington’s marijuana law “does not require employers to accommodate the use of medical marijuana where they have a drug-free workplace, even if medical marijuana is being used off site to treat an employee’s disabilities, and the use of marijuana for medical purposes remains unlawful under federal law.” With respect to the plaintiff’s disparate discipline argument, the court stated “[m]arijuana is a Schedule I controlled substance and is illegal under federal law; alcohol is not.” Therefore, employers have no obligation to treat medical marijuana users the same as employees intoxicated with alcohol.

The Swaw decision lines up with other court decisions that refuse to find actionable claims based upon medical marijuana use. See, e.g., Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. Sup. Ct. 2015) (“[E]mployees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected.”). Accordingly, as long as marijuana remains illegal under federal law, employers will have a strong defense to employee claims premised upon marijuana use. In anticipation of the possible legalization of medical marijuana, employers should consider revising or instituting drug-free workplace policies to ensure that they have clearly communicated prohibitions and expectations regarding the use of marijuana and other drugs in the workplace.

*Patrick M. Watts, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. If you have questions about the implications of marijuana legalization in your workplace, please contact Patrick at (pmw@zrlaw.com) or 216.696.4441.



Z&R SHORTS


Please join Z&R in welcoming two new attorneys to its Employment and Labor Groups.


Jeffrey J. WedelJeffrey J. Wedel has extensive trial experience, having tried more than 100 cases to verdict. Jeff regularly defends employers and insurers in all forms of employment discrimination, retaliation, wrongful discharge, whistleblower, and ADA public accommodation cases. He has defended employers throughout the country and has tried cases in Ohio, Michigan, Illinois, Georgia, Mississippi, Tennessee, North and South Carolina, Virginia, and Connecticut. Jeff also defends employers and manufacturers involving intentional torts, chemical exposure, and other toxic tort claims. He represents employers in ERISA and employee benefits litigation, enforcement and defense of confidentiality agreements, covenants not to compete, and trade secret cases. Jeff is a member of the Ohio State Bar Association Labor and Employment Law Section Council. He also is recognized as a leading lawyer in his field, having been listed in Ohio Super Lawyers since 2010 and in The Best Lawyers in America each year since 2006.

Emilie M. CarverEmilie M. Carver has experience in all aspects of defending private and public sector employers in employment law cases. Emilie has defended clients against claims involving the ADA, Title VII of the Civil Rights Act, covenants not to compete, contract issues, and other related claims. Emilie also has represented employers before the Equal Employment Opportunity Commission. Prior to entering private practice, Emilie served as a law clerk for the Honorable Judge John R. Adams at the U.S. District Court for the Northern District of Ohio. There, Emilie managed and advised Judge Adams on a variety of civil cases from the complaint to completion of the case, including issues involving the FLSA, ERISA, ADA, Fair Debt Collection Practices Act, Title VII of the Civil Rights Act, labor disputes, civil rights claims, and personal injury lawsuits. Emilie also clerked for the Honorable Carla Moore at the Ohio Ninth District Court of Appeals. At the Ninth District, she assisted in drafting more than 200 appellate opinions on topics including evidentiary issues, public policy, and administrative appeals from local administrative agencies.


Congratulations to Attorneys in Z&R’s Columbus, Ohio Office!



Jonathan J. DownesZashin & Rich is pleased to announce that Jonathan J. Downes received the Ohio Public Employers Labor Relations Association’s (“OHPELRA”) 2015 Award of Excellence. The OHPELRA Award of Excellence represents the highest acknowledgment OHPELRA can bestow on an individual for their dedication and achievement in the development of labor-management relations. This award is a testament to Jonathan’s outstanding contributions to management in the field of public sector labor relations.

Drew C. PiersallZashin & Rich also is pleased to announce that the Ohio State Bar Association has certified Drew C. Piersall as a specialist in Labor and Employment Law. The rigorous OSBA certification process requires attorneys to take and pass a written examination in their specialty field, demonstrate a high level of substantial involvement in their specialty area, fulfill ongoing education requirements, and be favorably evaluated by other attorneys or judges familiar with their work.
Congratulations to Jonathan and Drew on their outstanding achievements!

Monday, May 4, 2015

The EEOC Issues Proposed Changes to the ADA’s Regulations on Wellness Programs

By Patrick J. Hoban*

On April 20, 2015, the Equal Employment Opportunity Commission (“EEOC”) announced a Notice of Proposed Rulemaking (“NPRM”) concerning amendments to the EEOC’s regulations and guidance on the Americans with Disabilities Act (“ADA”). Most importantly, the NPRM clarifies the EEOC’s position on wellness programs with respect to the ADA by stating that incentives do not automatically render a program involuntary. Specifically, the proposed changes clarify the definition of “voluntary employee health program” under the ADA, limit the extent to which employers may incentivize participation in a wellness program, and add provisions relating to confidentiality.

Employers use wellness programs as a means of promoting healthy behavior among employees and keeping health care costs down. Wellness programs may include providing workout facilities and assistance with healthy eating or quitting smoking, as well as conducting health assessments and identifying risk factors. Wellness programs are often, though not always, offered through employer-provided group health plans. The ADA generally prohibits employers from getting medical information on employees, though it allows for medical examinations and health inquiries that are part of a voluntary employee health program. A wellness program qualifies as an “employee health program” when it meets the following criteria:

  • The program is reasonably designed to promote health or prevent disease.
  • The program has a reasonable chance of promoting health or preventing disease.
  • The program is not overly burdensome, a subterfuge for violating the ADA, or highly suspect in the method chosen to promote health or prevent disease.
  • The employer must provide notice to employees that is written and understandable, describes the medical information to be obtained and the specific purposes for which the information will be used, and provides information on disclosure of the information and on protections against improper disclosure.

The NPRM further clarifies what characteristics qualify a program as “voluntary”:

  • An employer cannot require employees to participate in the program.
  • An employer cannot deny access to health coverage or limit coverage for non-participation.
  • An employer cannot take any other adverse action against employees for non-participation or failure to achieve certain health outcomes.

The NPRM also sets a limit on the amount that an employer may incentivize employee participation in a wellness program. The proposed rule would limit incentives – either as a reward for participation or penalty for non-participation – to 30% of the total cost of employee-only coverage. The total cost includes both the employer and employee’s combined cost of coverage. Presumably, the EEOC viewed incentives greater than 30% of the total cost of employee-only coverage as coercive and not voluntary.

Finally, the NPRM adds a subsection to the ADA’s existing confidentiality requirements. The new provisions state that an employer may only receive medical information collected through the wellness program if it is in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as necessary to implement the plan or as otherwise permitted under the current regulations.

As of now, the EEOC is welcoming comments from the public on the proposed changes until June 19, 2015. After the close of the comment period, the EEOC may revise the proposed changes before submitting them to the Office of Management and Budget to be published in the Federal Register. Employers may want to review the NRPM as a preview of future formalized changes to the guidelines and regulations. Employers should also keep in mind that a number of other laws affect the implementation of wellness programs and that employers do not have carte blanche to establish incentives or penalties as part of existing wellness programs.

*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information about the legal implications of wellness programs or the EEOC’s proposed changes to the ADA’s regulations, please contact Patrick J. Hoban | pjh@zrlaw.com | 216.696.4441

Thursday, August 29, 2013

EMPLOYMENT LAW QUARTERLY | Summer 2013, Volume XV, Issue ii

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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:
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 almost 50,000 leading attorneys cast nearly five 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.

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.