By Brad E. Bennett*
On December 9, 2015, House Bill 56, known as the “ban the box” bill, passed both the Senate and the House. The bill becomes effective within ninety (90) days of Governor Kasich’s approval. This bill prevents all public employers, including counties, townships, and municipal corporations, from asking about previous criminal convictions on their job applications. The bill also modifies Ohio’s civil service law, making it clear that classified employees who are convicted of a felony “while employed in the civil service” may be removed under R.C. 124.34(A). Further, if an unclassified employee loses their position because they are convicted of a felony “while employed in the civil service,” the employee forfeits their right to resume a position in the classified service under R.C. 124.11(D)(3)(a).
The bill does not prohibit a public employer from including in a job application a statement, notifying applicants about potential disqualification, if they have a particular criminal history. The bill also does not prohibit public employers from inquiring about felony convictions later in the hiring process. The inquiry is only “banned” from the job application itself.
Public employers should also remain mindful of the EEOC’s 2012 Enforcement Guidelines. The EEOC has taken the position that employers cannot refuse to hire applicants simply because they have a felony conviction. Instead, the EEOC requires employers to demonstrate that the refusal to hire based upon a conviction is “job related and consistent with business necessity.” This will typically require the employer to weigh various factors including the nature of the job, the type of conviction, and the amount of time that has passed since the conviction occurred.
What actions should public employers take now? Public employers should immediately review and revise their job applications to ensure that they comply with House Bill 56. They should also provide training to managers involved in the hiring process to ensure compliance with House Bill 56 and the EEOC’s 2012 Enforcement Guidelines.
Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment Law, practices at the firm’s Columbus office. He is well versed in all areas of labor and employment law including assisting public sector employers with establishing lawful hiring guidelines. If you have questions about the H.B. 56 or your hiring process, please contact: Brad E. Bennett | beb@zrlaw.com | 614.224.4411
Showing posts with label Criminal History. Show all posts
Showing posts with label Criminal History. Show all posts
Monday, December 14, 2015
Monday, May 18, 2015
Ohio Public Sector Update: Convicted Felons Will No Longer Have to Disclose Status on Employment Application
By Jonathan J. Downes*
Beginning on June 1, 2015, Ohio will no longer ask “Have you ever been convicted of a felony?” on civil service applications for any state government position. The Ohio Department of Administrative Services will voluntarily remove this question from the application for thousands of state government positions, including highway workers and prison guards. Instead, job applicants for Ohio civil service positions will not have to disclose past crimes until the interview stage.
In making this change, Ohio voluntarily joined the “Ban the Box” movement. Generally, the “Box” refers to a square that, when checked, indicates an individual has a criminal background. Proponents argue such inquiries often automatically disqualify applicants that check the box and increase chances of recidivism. For employers, “Ban the Box” laws pose an increased burden on the job application and screening process.
This is the first time that Ohio has adopted “Ban the Box” practices on a statewide level. However, the state was not the first Ohio public employer to implement “Ban the Box” practices nor may this change be the last. In February 2015, Ohio legislators introduced House Bill 56 which would prohibit any Ohio state agency or political subdivision of Ohio from inquiring into or considering criminal backgrounds until the employer has selected an applicant for the position. The proposed bill applies to counties, townships, and municipal corporations, but has not moved past the House Commerce and Labor Committee. Lucas and Stark Counties and Cleveland, Cincinnati, and Canton already have “Ban the Box” measures in place. These measures currently only apply to public sector employers. However, the Equal Employment Opportunity Commission recommended banning the box on job applications as a best practice in its 2012 enforcement guidance.
Employers need to understand what, if any, “Ban the Box” restrictions apply to them and should follow further “Ban the Box” developments.
*Jonathan J. Downes, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience advising public entities and employers. If you have questions about state or local “Ban the Box” laws and regulations or other hiring concerns, please contact Jonathan Downes | jjd@zrlaw.com | 216.696.4441
Beginning on June 1, 2015, Ohio will no longer ask “Have you ever been convicted of a felony?” on civil service applications for any state government position. The Ohio Department of Administrative Services will voluntarily remove this question from the application for thousands of state government positions, including highway workers and prison guards. Instead, job applicants for Ohio civil service positions will not have to disclose past crimes until the interview stage.
In making this change, Ohio voluntarily joined the “Ban the Box” movement. Generally, the “Box” refers to a square that, when checked, indicates an individual has a criminal background. Proponents argue such inquiries often automatically disqualify applicants that check the box and increase chances of recidivism. For employers, “Ban the Box” laws pose an increased burden on the job application and screening process.
This is the first time that Ohio has adopted “Ban the Box” practices on a statewide level. However, the state was not the first Ohio public employer to implement “Ban the Box” practices nor may this change be the last. In February 2015, Ohio legislators introduced House Bill 56 which would prohibit any Ohio state agency or political subdivision of Ohio from inquiring into or considering criminal backgrounds until the employer has selected an applicant for the position. The proposed bill applies to counties, townships, and municipal corporations, but has not moved past the House Commerce and Labor Committee. Lucas and Stark Counties and Cleveland, Cincinnati, and Canton already have “Ban the Box” measures in place. These measures currently only apply to public sector employers. However, the Equal Employment Opportunity Commission recommended banning the box on job applications as a best practice in its 2012 enforcement guidance.
Employers need to understand what, if any, “Ban the Box” restrictions apply to them and should follow further “Ban the Box” developments.
*Jonathan J. Downes, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience advising public entities and employers. If you have questions about state or local “Ban the Box” laws and regulations or other hiring concerns, please contact Jonathan Downes | jjd@zrlaw.com | 216.696.4441
Thursday, August 29, 2013
EMPLOYMENT LAW QUARTERLY | Summer 2013, Volume XV, Issue ii
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On July 11, 2013, Ohio Governor John Kasich signed a law allowing employers seeking to cut costs to reduce temporarily all employees’ hours by 10 to 50 percent. The law became effective immediately. Touted by supporters as a win-win for both employers and employees, the state-approved layoff prevention program (called SharedWork Ohio) allows employees to keep their health and retirement benefits, as well as seek unemployment compensation for up to half of their missing wages. Employers will benefit by avoiding higher unemployment compensation taxes and the costs associated with training new workers.
SharedWork Ohio, which is similar to state-approved programs in 25 other states, will be funded by the federal government for the next two years. Thereafter, costs associated with the program will be funded through the unemployment compensation system.
Employers wanting to participate in the program must submit a plan to the director of the Ohio Department of Job and Family Services, including (among other things) a certification that the aggregate reduction in the number of hours worked by employees is in lieu of layoffs. Seasonal or temporary employees are not eligible for the program.
Whether employers with unionized employees must bargain over the implementation of the shared work programs remains uncertain. Ohio’s shared work program does not require union approval for employers’ shared work plans, which makes Ohio unique among most other states with shared work programs. Although SharedWork Ohio garnered bipartisan support generally, liberal supporters were in favor of a union sign-off, but conservative supporters were not. Employers with unionized employees are advised to seek advice from legal counsel as they develop and implement any shared work program.
*Emily A. Smith practices in all areas of employment law and regularly navigates employers through the nuances of Ohio employment laws and programs like SharedWork Ohio. If you believe your organization would benefit from SharedWork Ohio, contact Zashin & Rich at 614-224-4411 for more information.
Recently, the Ohio Supreme Court made it more difficult for plaintiffs bringing class action lawsuits in Ohio state courts. In Stammco, LLC v. United Tel. Co. of Ohio, 2013 Ohio 3019, the Court ruled that Ohio Rule of Civil Procedure 23 requires a “rigorous analysis” at the class certification stage. The Court also stated this analysis may “include probing the underlying merits of the plaintiffs claim.” However, this in-depth probe should only be used “for the purpose of determining whether the plaintiff has satisfied the prerequisites of Civ.R. 23.”
Ohio Civil Rule 23, which is nearly identical to the corresponding federal rule, lists the requirements of maintaining a class action suit. The Court’s recent decision in the Stammco case ended an eight year legal battle in which the plaintiffs alleged the defendant engaged in “cramming,” which is the unauthorized addition of third party charges to telephone bills. Plaintiffs sought class certification under Ohio Rule of Civil Procedure 23(B)(3). In refusing to certify the proposed class, the Ohio Supreme Court found that “the need for individualized determinations is dispositive in that the class did not comport with Civ. R. 23.” The Court also found that remanding the issue to the trial court “merely to reach an inevitable result” would be unproductive and unnecessarily delay the eight-year-old litigation.
In Stammco, the Ohio Supreme Court relied heavily on two recent United States Supreme Court decisions: Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) and Amgen v. Connecticut Retirement Plans & Trust Funds, 133 S.Ct. 1184 (2013). Dukes was an employment discrimination case in which the United States Supreme Court denied certification of a class of workers in part because individualized proceedings would be required to determine the amount of back pay due some class members. In Amgen, a pharmaceutical company misrepresented the safety of its products to the Food and Drug Administration. Connecticut Retirement Plans filed suit seeking to certify a class of shareholders. In certifying the class, the United States Supreme Court clarified that the consideration of the underlying merits at the certification stage is not unfettered. The Court stated, “[T]he office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it is to select the ‘metho[d]’ best suited to adjudication of the controversy ‘fairly and efficiently.’” Relying on these cases,the Ohio Supreme Court denied class certification in Stammco because the case would require “individualized determinations as to each member of the class…making certification of a class inappropriate under Civ.R. 23(B)(3).”
Taken together, these three decisions are likely to reduce the number of class action suits at both the state and federal levels that will successfully get past the certification stage. The Ohio and United States Supreme Courts have made it clear that cases that require individualized determinations are likely not appropriate for class action litigation. In addition, trial courts must conduct a more in-depth analysis of class action suits at the certification phase. While the Stammco decision is helpful for Ohio employers, they still must remain vigilant of potential class actions.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, is the head of the firm’s labor and employment group. Stephen’s practice encompasses all areas of labor and employment law, and he works extensively in defending class and collective actions. For more information about this article or any other employment matter, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
The Ohio Supreme Court recently expanded the United States Supreme Court’s finding in Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, the New Jersey Attorney General questioned police officers about a suspected traffic ticket fixing scheme. The investigation was not criminal in nature, but officers were hesitant to cooperate, fearing that their comments would be self-incriminating. The officers were told that if they refused to cooperate with the investigation, they could be removed from office. Ultimately, the officers complied with the investigation and some were subsequently prosecuted for “conspiracy to obstruct the administration of traffic laws.” The Supreme Court found that the officers’ statements made during the initial investigation were coerced. As such, they were inadmissible in the officers’ criminal prosecution. The Court reasoned that allowing the coerced statements into evidence would violate the officers’ Fifth Amendment right against self-incrimination. The Garrity warning applies to all public employees.
The Ohio Supreme Court recently faced a similar situation in Ohio v. Graham, 2013 Ohio 2114, 2013 Ohio LEXIS 1348 (May 29, 2013). Relying on Garrity, the Ohio Supreme Court held that statements obtained from a public employee under threat of job loss are unconstitutionally coerced and inadmissible in subsequent criminal proceedings. In Graham, the Office of the Inspector General questioned several Ohio Division of Wildlife (“DOW”) administrators about the punishment of another DOW worker. The DOW worker at issue had illegally allowed a DOW worker from South Carolina to register a hunting license to his address at a reduced price. When DOW administrators learned of the infraction, they addressed the employee’s discipline internally rather than informing the authorities as required by protocol. The Ohio Division of Natural Resources learned of this decision, and the Inspector General investigated. Unlike the investigation in Garrity, the investigators never told the administrators that they could face suspension or removal from office for refusing to comply. However, each administrator received a “Notice of Investigatory Interview” which stated that refusal to comply with the investigation could lead to suspension or termination. The Court determined that: (1) the administrators subjectively believed they could be terminated for refusing to comply with the organization; and (2) their belief was objectively reasonable. Accordingly, the Court found that the administrators’ statements made during the investigation were inadmissible in subsequent criminal proceedings against them.
So where does this leave public employers that are looking to undertake an internal investigation? First, employers should remember that statements obtained from a public employee under threat of job loss are inadmissible in subsequent criminal proceedings. However, a public employer may still compel a public employee’s cooperation in a job-related investigation so long as the employee is not asked to surrender the privilege against self-incrimination. Therefore, employers should not attempt to bypass Garrity by issuing a notice to employees as in Graham. Finally, employers should also incorporate information about internal investigations into their employee handbook.
Contact us for policies or forms for Garrity notices, a simple but critical step in internal investigations.
*Jonathan J. Downes, is AV rated by Martindale Hubbell and is an OSBA certified specialist in labor and employment law, practices in the firm’s Columbus, Ohio office and has extensive experience representing public sector employers, including conducting internal investigations. If you have any questions about the above or any other union/employee issue, contact Jonathan (jjd@zrlaw.com) at 614.224.4411.
An employer may consider an individual’s criminal record when making employment decisions. However, the Equal Employment Opportunity Commission (“EEOC”) has found that exclusions based on such records may disparately impact minorities. Two employers’ screening policies have recently fallen under scrutiny. The EEOC filed suit against Dollar General and BMW on behalf of former and prospective African-American employees, alleging that both companies utilized screening procedures that disproportionately impacted African-Americans.
First, the EEOC filed a nationwide lawsuit against Dollar General on behalf of African-American applicants. The lawsuit challenged Dollar General’s practice of conditioning all job offers on criminal background checks. Between 2004 and 2007, 10% of African-American applicants were discharged after they failed Dollar General’s background check (compared to 7% of non-African-American applicants). The EEOC based its lawsuit on charges of discrimination by two rejected applicants. One of the rejected applicants was denied employment after Dollar General discovered that she had a six year-old conviction for possession of a controlled substance. Dollar General revoked her job offer pursuant to its practice of disqualifying applicants for this type of conviction within the last ten years. The second rejected applicant was refused employment after a felony conviction turned up on Dollar General’s background check. The EEOC claimed that the applicant's background check results were inaccurate and that Dollar General failed to address the applicants’ protests.
The EEOC also filed suit against BMW alleging the company’s use of criminal background checks disproportionately precluded African-Americans from jobs and was neither job-related nor consistent with business necessity. BMW terminated eighty-eight employees after it discovered they had prior convictions. Eighty percent of those terminated were African-Americans. The employees originally bypassed BMW’s screening process because they were employed by UTi Integrated Logistics Inc. (“UTi”), which used a less stringent screening procedure than BMW. BMW contracted with UTi to place UTi employees at various BMW locations. BMW ended its relationship with UTi but allowed the UTi employees to apply with BMW’s new contractor. BMW’s new contractor screened these employees for prior arrests and convictions according to BMW’s policy. BMW’s policy excluded applicants convicted of broad categories of crimes, including assault, domestic abuse, various drugs and weapons crimes, any crime of a violent nature, and criminal convictions involving theft, dishonesty, and moral turpitude. Eighty-eight employees failed the screening, and BMW directed the new contractor to apply BMW’s criminal conviction policy and not hire these individuals. The EEOC brought suit on behalf of sixty-nine African-American employees not rehired pursuant to BMW’s policy, alleging that BMW discriminatorily failed to distinguish between felony and misdemeanor convictions. The EEOC also found that BMW’s policy acted as a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the employees’ positions. These cases are both still pending in their respective courts.
However, other courts have recently cast doubt on the EEOC’s efforts to restrict employers' use of criminal-background checks in hiring. In EEOC v. Freeman, 2013 U.S. Dist. LEXIS 112368 (D. Md. August 9, 2013), the United States District Court for the District of Maryland dismissed a lawsuit filed by the EEOC. The EEOC claimed that Freeman, a corporate events service provider, had “unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants.” The Court flatly rejected this argument, stating “[i]ndeed, the higher rate might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all positions, and conducts credit background checks on approximately 90 percent of its positions.”
Confusing the issue further, the EEOC Enforcement Guidelines on the Consideration of Arrest and Conviction Records in Employment Decisions, released in 2012, establish recommended screening practices for employers. The guidelines draw from the Eighth Circuit’s decision in Green v. Missouri Pacific Railroad, 549 F.2d 1158, 1160 (8th Cir. 1977). Green established that employers utilizing background checks should consider three factors when analyzing criminal records: (1) the nature gravity of the crime; (2) the time elapsed between when the crime was committed and the employee’s work application; and (3) the nature of the job. Green, 549 F.2d at 1160. The EEOC also recommends that convictions should be related to the job sought by an applicant and that the employer’s decision be consistent with business necessity.
The ambiguity surrounding the EEOC’s recommendations creates a dilemma for employers. On one hand, if employers do not follow the EEOC’s recommendations by providing an individualized assessment for screened employees, they risk an EEOC lawsuit. On the other hand, if employers hire an employee with a criminal history and that employee commits a crime while at work, the employer risks being sued for negligent hiring or retention.
Employers should conduct an individualized assessment for potential employees who fail background checks. Employers should avoid “blanket” exclusionary policies and ensure that criminal background policies are tailored to the specific job at issue and have a reasonable time limit. Employers also should allow individuals to explain past convictions and be careful to distinguish between arrests and convictions. An employer also should never make an employment determination based on an arrest, but rather, the conduct underlying the arrest (if it would make that individual unfit for the specific position).
So long as this issue remains in flux, employers must tread carefully when using criminal background checks as part of the hiring process. While the Freeman decision provides employers hope, the EEOC has and likely will continue to heavily scrutinize employers’ use of criminal background checks for potential new hires, possibly leaving employers vulnerable to costly and time-consuming litigation.
*Ami J. Patel practices in all areas of employment litigation. She has extensive experience helping employers navigate the EEOC’s policies and procedures, as well as related employment issues. For more information about this ever changing area, please contact Ami (ajp@zrlaw.com) at 216.696.4441.
Smart phones, laptops, tablets, and other mobile devices have made it easier for employees to work outside of the office. Employees may use these devices to work during their morning and evening commutes. Unbeknownst to many employers, however, work done during a commute may be compensable under the Fair Labor Standards Act (“FLSA”).
Employers generally must pay their nonexempt employees no less than the federal or state minimum wage, whichever is higher, for each hour worked. Employers must also pay their non-exempt employees one-and-one-half times their regular rate for hours worked in excess of forty in a workweek. Typically normal travel between home and work is not considered work time. This general rule, however, only applies if the employee performs no work during his or her commute.
Should the employee work during his or her commute, the time from the point he or she starts working becomes work time. In addition, an employer must pay for an employee’s commuting time if that time is being used primarily for the employer’s benefit, not the employee’s. For example, if the employee is required to pick up work supplies, some or all of this travel time may be compensable.
If an employee performs work outside of normal working hours, and does not receive compensation for those hours worked, an employer also may be liable for unpaid wages. Courts routinely find that employer policies prohibiting employees from performing unauthorized work, including during their commute, do not prevent this liability.
There are several ways employers can reduce their potential wage and hour liability. Employers should institute policies prohibiting unauthorized work, regularly remind employees of those policies and discipline those employees who violate the policies. Employers should also take away employer-owned mobile devices if employees use them to perform unauthorized work.
Further, employers may not be liable for work done in cases where they had no actual or constructive knowledge that an employee worked off the clock. For example, one employer was found not liable for time an employee spent working at lunch when the employee admitted she did not follow the employer’s procedures for reporting such time. White v. Baptist Memorial Health Care Corp., 2012 WL 5392621 (6th Cir. 2012). Employers should be aware that an employee’s use of company provided cell phones, tablets, or other mobile devices strengthens the likelihood that the employer actually knew work occurred.
Another potential hurdle employers face occurs when an employee performs additional work after returning home. For example, is an employee’s commute time compensable under a continuous working theory when the employee performs services for the employer after returning home at the end of the day? According to some courts, the answer is no, so long as the employer gave the employee enough flexibility to schedule his day. In Kuebel v. Black & Decker, Inc., 643 F.3d 352 (2nd Cir. 2011), the employee was a retail specialist whose main job was to ensure that Black & Decker (“B&D”) products were properly stocked, priced, and displayed in stores. B&D expected him to spend between five and eight hours per day completing these tasks. B&D also provided the employee with a PDA to record his entry and exit at stores. When the employee synced his PDA with B&D’s server, the PDA automatically communicated the employee’s hours. The employee also performed job-related tasks, such as responding to emails, late at night from his home office. He filed suit, claiming that B&D should have compensated him for his commute home since he was required to continue working after he arrived home. The court disagreed, holding that the employee had flexibility to complete his daily responsibilities so he was not working continuously.
Finally, with the advent of improved technology, many employers now permit employees to “telecommute.” While telecommuting employees generally work from home or another off-site location, it is sometimes necessary for these employees to commute into the office for meetings. If a telecommuting employee attends a meeting during the day, the travel time likely constitutes working time because the employee presumably already started working that day at his/her remote location. However, if the meeting is scheduled for first thing in the morning and is the employee’s first job related activity, the employee’s time spent commuting to the office likely is not compensable.
Employers must remain vigilant of the need to compensate employees for all work performed. If an employee works during his or her commute, that time is generally compensable and the employer must pay the employee for that time. Employers should have clear policies and procedures addressing unauthorized work and should require mandatory reporting of any work performed outside of normal working hours. Strict compliance with these policies will go a long way in helping employers avoid liability.
*Michele L. Jakubs, an OSBA certified specialist in labor and employment law, practices in all areas of employment law and has extensive experience representing employers in wage and hour matters. If you have any questions about the FLSA or wage and hour issues affecting your workplace, contact Michele (mlj@zrlaw.com) at 216-696-4441.
Weight loss is somewhat of an obsession in this country. With the likes of New Jersey Governor Chris Christie, Oprah Winfrey, and even former President Bill Clinton talking about their own weight loss experiences, the national conversation about being overweight and losing weight is as animated as ever, among famous folks and regular Joes alike.
Discussing obesity (defined by the U.S. Centers for Disease Control and Prevention as having a body mass index of 30 or higher1), however, seems to make people uncomfortable – even, strangely enough, some doctors who may fail to counsel their patients about it. This is one reason many in the medical community are applauding the American Medical Association’s designation last Tuesday of obesity as a disease requiring treatment and prevention.
“Recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans,” according to A.M.A. board member Patrice Harris, M.D.2 Those who laud the A.M.A.’s decision agree that it may help people in a variety of ways, from changing the way insurance companies reimburse for obesity drugs and treatments to changing the way society views obesity.
Of course, designating one third of Americans as diseased is not going to sit well with everyone (even those who are supposed to benefit from the change). And even though the A.M.A.’s decision carries no legal authority, it does carry influence, so employers have legitimate concerns about how their responsibilities under the Americans with Disabilities Act (“ADA”) may change as a result.
After all, the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) has already massively broadened the scope of the ADA’s protections, and per the U.S. Equal Employment Opportunity Commission (“EEOC”), the determination of disability should not require extensive analysis. If the AMA says obesity is a disease, EEOC Guidance on how to accommodate individuals with this condition may not be far behind.
*Helena Oroz practices in all areas of employment litigation and has extensive experience helping employers comply with the ADAAA. For more information about this ever changing area, please contact Helena (hot@zrlaw.com) at 216.696.4441.
1 In general, the U.S. Centers for Disease Control and Prevention (CDC) considers an adult with a body mass index (BMI) of 30 or higher obese; an adult with a BMI between 25 and 29.9 is considered overweight. Centers for Disease Control and Prevention: http://www.cdc.gov/obesity/ adult/defining.html
2 AMA Press Release: http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm
Thursday, September 12, 2013
Jonathan Downes presents "Workforce Reduction, Layoffs, and Job Abolishments" for the Ohio Government Finance Officers Association Annual Conference at the Hilton Columbus at Easton. For more details, go to www.ohgfoa.com.
Thursday, October 2, 2013
Stephen Zashin will be co-presenting "A Peek Behind the Curtain: Discovery Tactics" at the 50th Annual Midwest Labor and Employment Law Seminar. For more details, go to www.ohiobar.org.
Thursday, October 17, 2013
Jonathan Downes presents "Terminating Employees Without Getting Sued" for the South Central Ohio Human Resource Association. For more details, go to scohrc.com/.
Thursday, November 7, 2013
George Crisci will be part of a panel presenting "It's Always 1983 in the American Workplace" for the ABA Labor and Employment Section's Annual CLE meeting. For more details, go to www.americanbar.org.
Wednesday, November 13 2013
Jonathan Downes presents "Managing the Discipline Process" for the Ohio Association of Chiefs of Police at the Richfield BCII Facility. For more details, go to www.oacp.org.
- New Ohio Law Allows Employers to Reduce Employee Hours to Avoid Layoffs
- Ohio Follows Suit in Making Class Actions Harder to Certify
- Right to Remain Silent: The Do's and Do Not's of Internal Investigations
- Disorderly Conduct: EEOC Cracks Down on Employers' Use of Applicants' Criminal Histories
- Road to Riches: Paying Employees Who Work While Commuting
- Obesity is a Disease: from the A.M.A.'s Lips to the EEOC's Ears?
- Z&R SHORTS
New Ohio Law Allows Employers to Reduce Employee Hours to Avoid Layoffs
By Emily A. Smith*On July 11, 2013, Ohio Governor John Kasich signed a law allowing employers seeking to cut costs to reduce temporarily all employees’ hours by 10 to 50 percent. The law became effective immediately. Touted by supporters as a win-win for both employers and employees, the state-approved layoff prevention program (called SharedWork Ohio) allows employees to keep their health and retirement benefits, as well as seek unemployment compensation for up to half of their missing wages. Employers will benefit by avoiding higher unemployment compensation taxes and the costs associated with training new workers.
SharedWork Ohio, which is similar to state-approved programs in 25 other states, will be funded by the federal government for the next two years. Thereafter, costs associated with the program will be funded through the unemployment compensation system.
Employers wanting to participate in the program must submit a plan to the director of the Ohio Department of Job and Family Services, including (among other things) a certification that the aggregate reduction in the number of hours worked by employees is in lieu of layoffs. Seasonal or temporary employees are not eligible for the program.
Whether employers with unionized employees must bargain over the implementation of the shared work programs remains uncertain. Ohio’s shared work program does not require union approval for employers’ shared work plans, which makes Ohio unique among most other states with shared work programs. Although SharedWork Ohio garnered bipartisan support generally, liberal supporters were in favor of a union sign-off, but conservative supporters were not. Employers with unionized employees are advised to seek advice from legal counsel as they develop and implement any shared work program.
*Emily A. Smith practices in all areas of employment law and regularly navigates employers through the nuances of Ohio employment laws and programs like SharedWork Ohio. If you believe your organization would benefit from SharedWork Ohio, contact Zashin & Rich at 614-224-4411 for more information.
Ohio Follows Suit in Making Class Actions Harder to Certify
By Stephen S. Zashin*Recently, the Ohio Supreme Court made it more difficult for plaintiffs bringing class action lawsuits in Ohio state courts. In Stammco, LLC v. United Tel. Co. of Ohio, 2013 Ohio 3019, the Court ruled that Ohio Rule of Civil Procedure 23 requires a “rigorous analysis” at the class certification stage. The Court also stated this analysis may “include probing the underlying merits of the plaintiffs claim.” However, this in-depth probe should only be used “for the purpose of determining whether the plaintiff has satisfied the prerequisites of Civ.R. 23.”
Ohio Civil Rule 23, which is nearly identical to the corresponding federal rule, lists the requirements of maintaining a class action suit. The Court’s recent decision in the Stammco case ended an eight year legal battle in which the plaintiffs alleged the defendant engaged in “cramming,” which is the unauthorized addition of third party charges to telephone bills. Plaintiffs sought class certification under Ohio Rule of Civil Procedure 23(B)(3). In refusing to certify the proposed class, the Ohio Supreme Court found that “the need for individualized determinations is dispositive in that the class did not comport with Civ. R. 23.” The Court also found that remanding the issue to the trial court “merely to reach an inevitable result” would be unproductive and unnecessarily delay the eight-year-old litigation.
In Stammco, the Ohio Supreme Court relied heavily on two recent United States Supreme Court decisions: Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) and Amgen v. Connecticut Retirement Plans & Trust Funds, 133 S.Ct. 1184 (2013). Dukes was an employment discrimination case in which the United States Supreme Court denied certification of a class of workers in part because individualized proceedings would be required to determine the amount of back pay due some class members. In Amgen, a pharmaceutical company misrepresented the safety of its products to the Food and Drug Administration. Connecticut Retirement Plans filed suit seeking to certify a class of shareholders. In certifying the class, the United States Supreme Court clarified that the consideration of the underlying merits at the certification stage is not unfettered. The Court stated, “[T]he office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it is to select the ‘metho[d]’ best suited to adjudication of the controversy ‘fairly and efficiently.’” Relying on these cases,the Ohio Supreme Court denied class certification in Stammco because the case would require “individualized determinations as to each member of the class…making certification of a class inappropriate under Civ.R. 23(B)(3).”
Taken together, these three decisions are likely to reduce the number of class action suits at both the state and federal levels that will successfully get past the certification stage. The Ohio and United States Supreme Courts have made it clear that cases that require individualized determinations are likely not appropriate for class action litigation. In addition, trial courts must conduct a more in-depth analysis of class action suits at the certification phase. While the Stammco decision is helpful for Ohio employers, they still must remain vigilant of potential class actions.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, is the head of the firm’s labor and employment group. Stephen’s practice encompasses all areas of labor and employment law, and he works extensively in defending class and collective actions. For more information about this article or any other employment matter, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
Right to Remain Silent: The Do’s and Do Not’s of Internal Investigations
By Jonathan J. Downes*The Ohio Supreme Court recently expanded the United States Supreme Court’s finding in Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, the New Jersey Attorney General questioned police officers about a suspected traffic ticket fixing scheme. The investigation was not criminal in nature, but officers were hesitant to cooperate, fearing that their comments would be self-incriminating. The officers were told that if they refused to cooperate with the investigation, they could be removed from office. Ultimately, the officers complied with the investigation and some were subsequently prosecuted for “conspiracy to obstruct the administration of traffic laws.” The Supreme Court found that the officers’ statements made during the initial investigation were coerced. As such, they were inadmissible in the officers’ criminal prosecution. The Court reasoned that allowing the coerced statements into evidence would violate the officers’ Fifth Amendment right against self-incrimination. The Garrity warning applies to all public employees.
The Ohio Supreme Court recently faced a similar situation in Ohio v. Graham, 2013 Ohio 2114, 2013 Ohio LEXIS 1348 (May 29, 2013). Relying on Garrity, the Ohio Supreme Court held that statements obtained from a public employee under threat of job loss are unconstitutionally coerced and inadmissible in subsequent criminal proceedings. In Graham, the Office of the Inspector General questioned several Ohio Division of Wildlife (“DOW”) administrators about the punishment of another DOW worker. The DOW worker at issue had illegally allowed a DOW worker from South Carolina to register a hunting license to his address at a reduced price. When DOW administrators learned of the infraction, they addressed the employee’s discipline internally rather than informing the authorities as required by protocol. The Ohio Division of Natural Resources learned of this decision, and the Inspector General investigated. Unlike the investigation in Garrity, the investigators never told the administrators that they could face suspension or removal from office for refusing to comply. However, each administrator received a “Notice of Investigatory Interview” which stated that refusal to comply with the investigation could lead to suspension or termination. The Court determined that: (1) the administrators subjectively believed they could be terminated for refusing to comply with the organization; and (2) their belief was objectively reasonable. Accordingly, the Court found that the administrators’ statements made during the investigation were inadmissible in subsequent criminal proceedings against them.
So where does this leave public employers that are looking to undertake an internal investigation? First, employers should remember that statements obtained from a public employee under threat of job loss are inadmissible in subsequent criminal proceedings. However, a public employer may still compel a public employee’s cooperation in a job-related investigation so long as the employee is not asked to surrender the privilege against self-incrimination. Therefore, employers should not attempt to bypass Garrity by issuing a notice to employees as in Graham. Finally, employers should also incorporate information about internal investigations into their employee handbook.
Contact us for policies or forms for Garrity notices, a simple but critical step in internal investigations.
*Jonathan J. Downes, is AV rated by Martindale Hubbell and is an OSBA certified specialist in labor and employment law, practices in the firm’s Columbus, Ohio office and has extensive experience representing public sector employers, including conducting internal investigations. If you have any questions about the above or any other union/employee issue, contact Jonathan (jjd@zrlaw.com) at 614.224.4411.
Disorderly Conduct: EEOC Cracks Down on Employers’ Use of Applicants’ Criminal Histories
By Ami J. Patel*An employer may consider an individual’s criminal record when making employment decisions. However, the Equal Employment Opportunity Commission (“EEOC”) has found that exclusions based on such records may disparately impact minorities. Two employers’ screening policies have recently fallen under scrutiny. The EEOC filed suit against Dollar General and BMW on behalf of former and prospective African-American employees, alleging that both companies utilized screening procedures that disproportionately impacted African-Americans.
First, the EEOC filed a nationwide lawsuit against Dollar General on behalf of African-American applicants. The lawsuit challenged Dollar General’s practice of conditioning all job offers on criminal background checks. Between 2004 and 2007, 10% of African-American applicants were discharged after they failed Dollar General’s background check (compared to 7% of non-African-American applicants). The EEOC based its lawsuit on charges of discrimination by two rejected applicants. One of the rejected applicants was denied employment after Dollar General discovered that she had a six year-old conviction for possession of a controlled substance. Dollar General revoked her job offer pursuant to its practice of disqualifying applicants for this type of conviction within the last ten years. The second rejected applicant was refused employment after a felony conviction turned up on Dollar General’s background check. The EEOC claimed that the applicant's background check results were inaccurate and that Dollar General failed to address the applicants’ protests.
The EEOC also filed suit against BMW alleging the company’s use of criminal background checks disproportionately precluded African-Americans from jobs and was neither job-related nor consistent with business necessity. BMW terminated eighty-eight employees after it discovered they had prior convictions. Eighty percent of those terminated were African-Americans. The employees originally bypassed BMW’s screening process because they were employed by UTi Integrated Logistics Inc. (“UTi”), which used a less stringent screening procedure than BMW. BMW contracted with UTi to place UTi employees at various BMW locations. BMW ended its relationship with UTi but allowed the UTi employees to apply with BMW’s new contractor. BMW’s new contractor screened these employees for prior arrests and convictions according to BMW’s policy. BMW’s policy excluded applicants convicted of broad categories of crimes, including assault, domestic abuse, various drugs and weapons crimes, any crime of a violent nature, and criminal convictions involving theft, dishonesty, and moral turpitude. Eighty-eight employees failed the screening, and BMW directed the new contractor to apply BMW’s criminal conviction policy and not hire these individuals. The EEOC brought suit on behalf of sixty-nine African-American employees not rehired pursuant to BMW’s policy, alleging that BMW discriminatorily failed to distinguish between felony and misdemeanor convictions. The EEOC also found that BMW’s policy acted as a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the employees’ positions. These cases are both still pending in their respective courts.
However, other courts have recently cast doubt on the EEOC’s efforts to restrict employers' use of criminal-background checks in hiring. In EEOC v. Freeman, 2013 U.S. Dist. LEXIS 112368 (D. Md. August 9, 2013), the United States District Court for the District of Maryland dismissed a lawsuit filed by the EEOC. The EEOC claimed that Freeman, a corporate events service provider, had “unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants.” The Court flatly rejected this argument, stating “[i]ndeed, the higher rate might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all positions, and conducts credit background checks on approximately 90 percent of its positions.”
Confusing the issue further, the EEOC Enforcement Guidelines on the Consideration of Arrest and Conviction Records in Employment Decisions, released in 2012, establish recommended screening practices for employers. The guidelines draw from the Eighth Circuit’s decision in Green v. Missouri Pacific Railroad, 549 F.2d 1158, 1160 (8th Cir. 1977). Green established that employers utilizing background checks should consider three factors when analyzing criminal records: (1) the nature gravity of the crime; (2) the time elapsed between when the crime was committed and the employee’s work application; and (3) the nature of the job. Green, 549 F.2d at 1160. The EEOC also recommends that convictions should be related to the job sought by an applicant and that the employer’s decision be consistent with business necessity.
The ambiguity surrounding the EEOC’s recommendations creates a dilemma for employers. On one hand, if employers do not follow the EEOC’s recommendations by providing an individualized assessment for screened employees, they risk an EEOC lawsuit. On the other hand, if employers hire an employee with a criminal history and that employee commits a crime while at work, the employer risks being sued for negligent hiring or retention.
Employers should conduct an individualized assessment for potential employees who fail background checks. Employers should avoid “blanket” exclusionary policies and ensure that criminal background policies are tailored to the specific job at issue and have a reasonable time limit. Employers also should allow individuals to explain past convictions and be careful to distinguish between arrests and convictions. An employer also should never make an employment determination based on an arrest, but rather, the conduct underlying the arrest (if it would make that individual unfit for the specific position).
So long as this issue remains in flux, employers must tread carefully when using criminal background checks as part of the hiring process. While the Freeman decision provides employers hope, the EEOC has and likely will continue to heavily scrutinize employers’ use of criminal background checks for potential new hires, possibly leaving employers vulnerable to costly and time-consuming litigation.
*Ami J. Patel practices in all areas of employment litigation. She has extensive experience helping employers navigate the EEOC’s policies and procedures, as well as related employment issues. For more information about this ever changing area, please contact Ami (ajp@zrlaw.com) at 216.696.4441.
Road to Riches: Paying Employees Who Work While Commuting
By Michele L. Jakubs*Smart phones, laptops, tablets, and other mobile devices have made it easier for employees to work outside of the office. Employees may use these devices to work during their morning and evening commutes. Unbeknownst to many employers, however, work done during a commute may be compensable under the Fair Labor Standards Act (“FLSA”).
Employers generally must pay their nonexempt employees no less than the federal or state minimum wage, whichever is higher, for each hour worked. Employers must also pay their non-exempt employees one-and-one-half times their regular rate for hours worked in excess of forty in a workweek. Typically normal travel between home and work is not considered work time. This general rule, however, only applies if the employee performs no work during his or her commute.
Should the employee work during his or her commute, the time from the point he or she starts working becomes work time. In addition, an employer must pay for an employee’s commuting time if that time is being used primarily for the employer’s benefit, not the employee’s. For example, if the employee is required to pick up work supplies, some or all of this travel time may be compensable.
If an employee performs work outside of normal working hours, and does not receive compensation for those hours worked, an employer also may be liable for unpaid wages. Courts routinely find that employer policies prohibiting employees from performing unauthorized work, including during their commute, do not prevent this liability.
There are several ways employers can reduce their potential wage and hour liability. Employers should institute policies prohibiting unauthorized work, regularly remind employees of those policies and discipline those employees who violate the policies. Employers should also take away employer-owned mobile devices if employees use them to perform unauthorized work.
Further, employers may not be liable for work done in cases where they had no actual or constructive knowledge that an employee worked off the clock. For example, one employer was found not liable for time an employee spent working at lunch when the employee admitted she did not follow the employer’s procedures for reporting such time. White v. Baptist Memorial Health Care Corp., 2012 WL 5392621 (6th Cir. 2012). Employers should be aware that an employee’s use of company provided cell phones, tablets, or other mobile devices strengthens the likelihood that the employer actually knew work occurred.
Another potential hurdle employers face occurs when an employee performs additional work after returning home. For example, is an employee’s commute time compensable under a continuous working theory when the employee performs services for the employer after returning home at the end of the day? According to some courts, the answer is no, so long as the employer gave the employee enough flexibility to schedule his day. In Kuebel v. Black & Decker, Inc., 643 F.3d 352 (2nd Cir. 2011), the employee was a retail specialist whose main job was to ensure that Black & Decker (“B&D”) products were properly stocked, priced, and displayed in stores. B&D expected him to spend between five and eight hours per day completing these tasks. B&D also provided the employee with a PDA to record his entry and exit at stores. When the employee synced his PDA with B&D’s server, the PDA automatically communicated the employee’s hours. The employee also performed job-related tasks, such as responding to emails, late at night from his home office. He filed suit, claiming that B&D should have compensated him for his commute home since he was required to continue working after he arrived home. The court disagreed, holding that the employee had flexibility to complete his daily responsibilities so he was not working continuously.
Finally, with the advent of improved technology, many employers now permit employees to “telecommute.” While telecommuting employees generally work from home or another off-site location, it is sometimes necessary for these employees to commute into the office for meetings. If a telecommuting employee attends a meeting during the day, the travel time likely constitutes working time because the employee presumably already started working that day at his/her remote location. However, if the meeting is scheduled for first thing in the morning and is the employee’s first job related activity, the employee’s time spent commuting to the office likely is not compensable.
Employers must remain vigilant of the need to compensate employees for all work performed. If an employee works during his or her commute, that time is generally compensable and the employer must pay the employee for that time. Employers should have clear policies and procedures addressing unauthorized work and should require mandatory reporting of any work performed outside of normal working hours. Strict compliance with these policies will go a long way in helping employers avoid liability.
*Michele L. Jakubs, an OSBA certified specialist in labor and employment law, practices in all areas of employment law and has extensive experience representing employers in wage and hour matters. If you have any questions about the FLSA or wage and hour issues affecting your workplace, contact Michele (mlj@zrlaw.com) at 216-696-4441.
Obesity is a Disease: from the A.M.A.’s Lips to the EEOC’s Ears?
By Helena Oroz*Weight loss is somewhat of an obsession in this country. With the likes of New Jersey Governor Chris Christie, Oprah Winfrey, and even former President Bill Clinton talking about their own weight loss experiences, the national conversation about being overweight and losing weight is as animated as ever, among famous folks and regular Joes alike.
Discussing obesity (defined by the U.S. Centers for Disease Control and Prevention as having a body mass index of 30 or higher1), however, seems to make people uncomfortable – even, strangely enough, some doctors who may fail to counsel their patients about it. This is one reason many in the medical community are applauding the American Medical Association’s designation last Tuesday of obesity as a disease requiring treatment and prevention.
“Recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans,” according to A.M.A. board member Patrice Harris, M.D.2 Those who laud the A.M.A.’s decision agree that it may help people in a variety of ways, from changing the way insurance companies reimburse for obesity drugs and treatments to changing the way society views obesity.
Of course, designating one third of Americans as diseased is not going to sit well with everyone (even those who are supposed to benefit from the change). And even though the A.M.A.’s decision carries no legal authority, it does carry influence, so employers have legitimate concerns about how their responsibilities under the Americans with Disabilities Act (“ADA”) may change as a result.
After all, the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) has already massively broadened the scope of the ADA’s protections, and per the U.S. Equal Employment Opportunity Commission (“EEOC”), the determination of disability should not require extensive analysis. If the AMA says obesity is a disease, EEOC Guidance on how to accommodate individuals with this condition may not be far behind.
*Helena Oroz practices in all areas of employment litigation and has extensive experience helping employers comply with the ADAAA. For more information about this ever changing area, please contact Helena (hot@zrlaw.com) at 216.696.4441.
1 In general, the U.S. Centers for Disease Control and Prevention (CDC) considers an adult with a body mass index (BMI) of 30 or higher obese; an adult with a BMI between 25 and 29.9 is considered overweight. Centers for Disease Control and Prevention: http://www.cdc.gov/obesity/ adult/defining.html
2 AMA Press Release: http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm
Z&R Shorts
Zashin & Rich is pleased to announce the addition of Todd Ellsworth to the firm's Employment and Labor Group in its Cleveland office.
Prior to joining Z&R, Todd served as a member of the U.S. Navy. He has represented private and public employers in all areas of labor and employment law and has wide-ranging experience representing employers in collective bargaining negotiations, before state and federal administrative agencies, and state and federal courts. Todd also has broad experience in advising and representing public sector clients concerning Ohio's Sunshine Laws, specifically public records.Best Lawyers ®
Z&R is happy to announce the following Z&R Employment and Labor Group lawyers have been selected for inclusion in Best Lawyers in America 2014:- George S. Crisci
Employment Law Management, Labor Law – Management, and Litigation – Labor and Employment - Jon M. Dileno
Employment Law – Management
- Jonathan J. Downes
Employment Law – Management and Labor Law -- Management
- Stephen Zashin
Labor Law – Management
Thursday, September 12, 2013
Jonathan Downes presents "Workforce Reduction, Layoffs, and Job Abolishments" for the Ohio Government Finance Officers Association Annual Conference at the Hilton Columbus at Easton. For more details, go to www.ohgfoa.com.
Thursday, October 2, 2013
Stephen Zashin will be co-presenting "A Peek Behind the Curtain: Discovery Tactics" at the 50th Annual Midwest Labor and Employment Law Seminar. For more details, go to www.ohiobar.org.
Thursday, October 17, 2013
Jonathan Downes presents "Terminating Employees Without Getting Sued" for the South Central Ohio Human Resource Association. For more details, go to scohrc.com/.
Thursday, November 7, 2013
George Crisci will be part of a panel presenting "It's Always 1983 in the American Workplace" for the ABA Labor and Employment Section's Annual CLE meeting. For more details, go to www.americanbar.org.
Wednesday, November 13 2013
Jonathan Downes presents "Managing the Discipline Process" for the Ohio Association of Chiefs of Police at the Richfield BCII Facility. For more details, go to www.oacp.org.
Monday, June 17, 2013
EMPLOYMENT LAW QUARTERLY | Spring 2013, Volume XV, Issue i
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Everyone knows the First Amendment protects free speech, but no right is absolute. Public employee speech is no different.
The First Amendment protects a public employee’s speech if he or she speaks as a citizen about matters of public interest. When that public employee speaks in his or her official capacity regarding his or her official duties or matters not of public interest, that employee is not insulated from discipline. Does this same rule apply to a public employee who is also a union official criticizing or challenging decisions or policy of an employer?
The U.S. Court of Appeals for the Ninth Circuit (which covers much of the west coast) recently decided how First Amendment free speech protections apply to a union “no-confidence vote.” The case is Ellins v. City of Sierra Madre, 710 F. 3d 1049 (9th Cir. 2013).
John Ellins, a police officer for the City of Sierra Madre, California, led a no-confidence vote of the police officers’ union against the Chief of Police, Marilyn Diaz in 2008. According to Ellins, the union initiated the vote due to Diaz’s “lack of leadership, wasting of citizens’ tax dollars, hypocrisy, expensive paranoia, and damaging inability to conduct her job.”
In 2009, Ellins submitted an application to Diaz for a certification that, under the City’s Memorandum of Understanding with the police officers’ union, would have entitled him to a five percent raise. When Diaz delayed approving his application, Ellins filed suit, claiming that the failure to process his application was in retaliation for his exercise of free expression and association and his union activities related to the “no confidence” vote.
The district court ruled in favor of the City and Diaz, holding that Ellins had not established a claim of First Amendment retaliation. In addition to failing to establish the other elements of his claim, Ellins failed to establish that he spoke as a private citizen in leading the no-confidence vote.
The Ninth Circuit reversed on this issue, rejecting the City’s position that Ellins conducted the no-confidence vote as a police officer, not as a citizen. The Court found that Ellins’ conduct was in his capacity as a union representative, noting that there is an “inherent institutional conflict of interest between an employer and its employees’ union.” Therefore, the Court held that a reasonable jury could find that Ellins’ speech, made as a representative and president of the police union, was made in his capacity as a private citizen.
The Court also concluded that the concerns raised by the no-confidence vote addressed the Chief’s leadership and other department-wide matters. The Court found that “these departmental problems were of inherent interest to the public because they could affect the ability of the Sierra Madre police force to attract and retain officers.”
According to the National Association of Colleges and Employers, 55% of students in 2012 graduated with some internship experience on their resume. While unpaid internships can benefit students and employers, employers must ensure any such internship comply with both federal and state wage and hour laws. Failure to do so may result in a lawsuit with a potentially large damage award.
In 2010, the Deputy Wage and Hour Administrator for the United States Department of Labor (“DOL”) told the New York Times, “If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law.” Since then, unpaid interns have filed numerous class action lawsuits claiming that the companies for which they interned violated the Fair Labor Standards Act (“FLSA”) by failing to pay them for their work.
The FLSA does not specifically contain an exception for student interns. Rather, the DOL has provided a small exception for “trainees,” and has recognized that student interns may qualify as trainees. If an intern is considered a “trainee” under the FLSA, employers are not required to pay the intern minimum wage or overtime. In order to constitute a trainee, unpaid interns must satisfy the six factors set out by the United States Supreme Court in Walling v. Portland Terminal Co., 330 U.S. 148 (1947).
After Walling, the DOL released Fact Sheet number 71 which applies the six factors to unpaid interns. According to the DOL, if all of the following requirements are met, the intern does not constitute an employee under federal law:
An employee ventures into his or her manager’s office and requests medical leave for a disability. The employee produces a note from his or her doctor that supports the employee’s request, so the employer grants the employee’s request for leave. The employee’s leave expires and the employee subsequently submits another request. The employer once again grants the employee’s request. This scene replays itself over again and again and again, like a scene out of Groundhog Day. The employer is left stranded, wondering “When is enough, enough?”
Earlier this year the Occupational Safety and Health Administration (“OSHA”) and the Department of Labor (“DOL”) filed suit against an employer for terminating an employee who reported workplace violence. OSHA argued that the employee’s discharge was tantamount to discharging an employee for complaining about unsafe work conditions. The fact that the alleged unsafe working conditions involved an employee’s fear of workplace violence made this case unusual.
The employee worked for Duane Thomas Marine Construction and its owner, Duane Thomas (“Thomas”). The employee claimed Thomas engaged in workplace violence and created hostile working conditions on several occasions between 2009 and 2011. Thomas allegedly was abusive, made inappropriate sexual comments, yelled, screamed, and withheld the employee’s paycheck.
The employee worked directly for and reported to Thomas. The employee claimed that Thomas’ verbal, mental, and emotional abuse in the workplace had forced her and a coworker to walk off the job. The next day, Thomas requested that the employee (and her coworker) return to work in exchange for Thomas’ promise to stop any workplace bullying or abuse. However, the employee alleged that the workplace bullying and abuse continued despite Thomas’ repeated promises to cease such behavior.
In February 2011, the employee filed a whistleblower complaint with OSHA. After filing this complaint, she alleged that Thomas retaliated against her due to her complaints. Thomas, upon receiving notice of the employee’s OSHA complaint, denied the employee remote access to files, and ultimately discharged the employee. After the employee’s discharge, the OSHA investigation found merit to the employee’s complaint.
This suit seems to indicate a shift in OSHA’s focus from addressing traditional workplace hazards toward protecting the overall health and well-being of employees. The General Duty clause of the Occupational Safety and Health Act of 1970 (“OSH Act”) requires “each employer to furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 USCS § 654(a)(1). OSHA has typically used the General Duty clause to enforce safety standards relating to industrial hazards such as high noise levels, chemical exposure, or electrical hazards. However, this case involves one of the first – if not the first – OSHA lawsuit against an employer for workplace bullying.
Historically, OSHA used the General Duty clause to cite hazards not yet addressed by a specific standard. Therefore, it makes sense that OSHA is now trying to combat workplace bullying through this clause because no specific provision in the OSH Act currently prevents bullying in the workplace. However, in order prevail on a general duty clause violation, OSHA must prove four basic elements: (1) the existence of an alleged condition or practice at the employer's workplace, (2) risk, presented by the alleged condition or practice, of event likely to cause death or serious physical harm, (3) employer or industry knowledge that the condition or practice is hazardous and exists or potentially exists at the employer's workplace, and (4) a feasible method by which the employer could have eliminated or materially reduced the alleged hazardous condition or practice.
Importantly, the OSH Act does not require that an employee’s concerns about workplace safety be valid. The alleged atmosphere of abuse and bullying caused by the employer and owner in this case may or may not have actually presented a valid safety hazard. Regardless, the OSH Act makes it unlawful for an employer to terminate an employee for complaining about a workplace safety concern. Employers must be wary not to retaliate against an employee who complains about workplace bullying, violence, or abuse, as it appears OSHA may subject them to a whistleblowing action.
In addition to liability under federal law, employees may also bring civil actions against employers under state law for workplace bullying. A number of theories of liability exist such as negligent hiring, supervision and retention, respondeat superior and failure to warn.
In order to combat workplace bullying and its legal implications, employers should consider workplace violence policies, which include reporting mechanisms for employees to report workplace violence or threats of violence. Employers should also conduct robust investigations of any and all complaints. Finally, employers can limit liability by fully investigating a potential new hire’s references for any patterns or signs of past violent behavior or improper work conduct.
*Scott Coghlan, the chair of the firms’ Workers’ Compensation Group, has extensive experience in all aspects of OSHA and workers’ compensation. For more information about OSHA compliance, please contact Scott (sc@zrlaw.com) at 216.696.4441.
- Non-Compete Agreements and Separation Agreements — Are They Incompatible?
- PUBLIC SECTOR EMPLOYERS: "Which Hat Is He Wearing?"
- FIRE YOU? OK!...I Think
- DO THE MATH: Unpaid Interns Don't Equal Free Labor
- ENOUGH IS ENOUGH: How Much Time Must an Employer Give an Employee as a Form of a Reasonable Accommodation Under the ADA?
- THE DUKES OF HAZZARD: OSHA and Workplace Bullying
- Z&R Shorts
Non-Compete Agreements and Separation Agreements — Are They Incompatible?
By Helena Oroz*Does a separation agreement nullify an earlier covenant not to compete? It depends. In Try Hours, Inc. v. Douville, 2013 WL 139584 (January 11, 2013), the Ohio Sixth District Court of Appeals recently held that a one year non-compete agreement was not superseded by a separation agreement between the two parties. Try Hours, a national trucking company focused on the expedited freight industry, was the plaintiff-employer in the case. Try Hours hired the defendant, Bryan Douville (“Douville”), in 2010 as its director of operations. Douville signed an employment agreement that contained a non-compete and non-solicitation clause. The clause provided that Douville could not work for any company within the United States in direct competition with Try Hours for a period of one year after his employment with Try Hours ended. Finding Douville was not a good fit for the organization, Try Hours terminated his employment in October 2011.
At the time of Douville’s discharge, the parties entered into a separation agreement that included an integration clause. The integration clause stated that the separation agreement constituted the entire agreement between the parties and that “no prior or subsequent oral Agreements, representations or understandings shall be binding upon the parties and such shall be null and void and shall have no effect.” Douville, believing that the separation agreement freed him from his obligation to abide by the non-compete agreement, began work at a competitor.
Try Hours brought suit alleging that Douville violated the non-compete agreement, and sought a preliminary injunction to enjoin Douville from working for the competitor. The trial court granted Try Hours' motion for preliminary injunction. On appeal Douville asserted: (1) the separation agreement effectively nullified the original employment agreement; (2) that the grant of the preliminary injunction was error; and (3) that the duration and scope of the injunction was unreasonable.
The court first determined the separation agreement did not supersede the employment agreement between the parties. Douville argued that the integration clause contained within the separation agreement was ambiguous as to whether the separation agreement was meant to supersede the employment agreement. The court found the separation agreement merely limited the rights of Douville to bring a claim against Try Hours stemming from his employment. Furthermore, the court found that the integration clause only excluded oral agreements. Therefore, the court reasoned that since the non-compete clause was a written agreement it should not be superseded by the separation agreement’s reference to “subsequent oral Agreements.”
The court then looked to determine whether a preliminary injunction should have been granted in favor of Try Hours. Try Hours argued that the competitive nature of the freight trucking industry required that its sensitive company information be kept confidential. It asserted that information such as the company’s drivers’ names, customer list, pricing information, and quality and service scores was crucial to Try Hours’ performance and was therefore confidential. Try Hours was especially protective of its drivers’ information, arguing that the demand for quality expedited freight truck drivers far exceeded the actual number of such drivers. The court agreed with Try Hours and found that this sensitive information was indeed confidential, especially in light of the fact that Douville’s job at PFM included securing truck drivers to haul expedited freight, which placed him in direct competition with Try Hours.
Douville argued that the injunction placed an undue hardship on him as it prevented him from procuring employment in an industry in which he had worked for 11 years. The court, however, determined that the “direct competition” language of the non-compete agreement limited his ability to work in the freight industry only. The court reasoned that while Douville would experience some hardship throughout the duration of the injunction, he must demonstrate more. The court noted that Douville was still free to seek employment with any trucking company not engaged in the expedited freight business. The court also determined that the non-compete agreement’s provision prohibiting Douville from working for any expedited freight trucking company across the United States was appropriate as the trucking industry is a multistate industry. Finally, the court determined that the one year duration of the restriction period was a reasonable amount of time. As such, the court reaffirmed Try Hours’ injunction.
This case presents two important lessons for employers. First, employers should craft carefully separation agreements that do not accidentally supersede any prior non-compete or other agreements. Second, employers should draft non-compete agreements narrowly (in both scope and duration) and consider the degree of hardship to the employee. Both of these concepts will help employers achieve their objectives as to departing employees.
*Helena Oroz practices in all areas of employment litigation and has extensive experience helping employers draft, enforce, and otherwise advise clients about non-compete agreements. For more information about this ever changing area, please contact Helena (hot@zrlaw.com) at 216.696.4441.
PUBLIC SECTOR EMPLOYERS: “Which Hat Is He Wearing?”
By Jonathan J. Downes*Everyone knows the First Amendment protects free speech, but no right is absolute. Public employee speech is no different.
The First Amendment protects a public employee’s speech if he or she speaks as a citizen about matters of public interest. When that public employee speaks in his or her official capacity regarding his or her official duties or matters not of public interest, that employee is not insulated from discipline. Does this same rule apply to a public employee who is also a union official criticizing or challenging decisions or policy of an employer?
The U.S. Court of Appeals for the Ninth Circuit (which covers much of the west coast) recently decided how First Amendment free speech protections apply to a union “no-confidence vote.” The case is Ellins v. City of Sierra Madre, 710 F. 3d 1049 (9th Cir. 2013).
John Ellins, a police officer for the City of Sierra Madre, California, led a no-confidence vote of the police officers’ union against the Chief of Police, Marilyn Diaz in 2008. According to Ellins, the union initiated the vote due to Diaz’s “lack of leadership, wasting of citizens’ tax dollars, hypocrisy, expensive paranoia, and damaging inability to conduct her job.”
In 2009, Ellins submitted an application to Diaz for a certification that, under the City’s Memorandum of Understanding with the police officers’ union, would have entitled him to a five percent raise. When Diaz delayed approving his application, Ellins filed suit, claiming that the failure to process his application was in retaliation for his exercise of free expression and association and his union activities related to the “no confidence” vote.
The district court ruled in favor of the City and Diaz, holding that Ellins had not established a claim of First Amendment retaliation. In addition to failing to establish the other elements of his claim, Ellins failed to establish that he spoke as a private citizen in leading the no-confidence vote.
The Ninth Circuit reversed on this issue, rejecting the City’s position that Ellins conducted the no-confidence vote as a police officer, not as a citizen. The Court found that Ellins’ conduct was in his capacity as a union representative, noting that there is an “inherent institutional conflict of interest between an employer and its employees’ union.” Therefore, the Court held that a reasonable jury could find that Ellins’ speech, made as a representative and president of the police union, was made in his capacity as a private citizen.
The Court also concluded that the concerns raised by the no-confidence vote addressed the Chief’s leadership and other department-wide matters. The Court found that “these departmental problems were of inherent interest to the public because they could affect the ability of the Sierra Madre police force to attract and retain officers.”
*Jonathan J. Downes, 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. If you have any questions about the above or any other union/employee issue, contact Jonathan (jjd@zrlaw.com) at 614.224.4411.
FireYou? Ok!...I Think
By B. Jason Rossiter*The prevalence of social media increases by the minute. Every day millions of people login to their Facebook, Twitter, LinkedIn, and other social networking accounts and post their thoughts to the world. Sometimes, these broadcasted postings include an employee’s disdain for his or her job or, in many cases, his or her boss.
The increase in social media activity by employees has led to the development of new programs and applications designed to track such activity, including “FireMe!” FireMe! is a new Twitter application developed to alert users of the likelihood of termination as a result of what they post. FireMe! was developed by Ricardo Kawase, a PhD student in Hannover, Germany, with the goal of raising awareness about the danger of public online data. FireMe! scans a user’s Twitter accounts for keywords such as “kill,” “boss,” and “job,” as well as any combination of foul language to identify problematic tweets concerning the workplace. It also notifies users about tweets that may jeopardize the user’s employment.
Employers may be tempted to utilize this or similar applications to identify employees tweeting about the workplace. If an employer knows an employee’s twitter account name, they can log onto the FireMe! website, enter the employee’s twitter account, and a ranking will appear, indicating how “likely” that Twitter user is to be fired for the content of their tweets.
Employers beware, though. The National Labor Relations Board (“NLRB”) already has held on numerous occasions that Section 7 of the National Labor Relations Act (“NLRA”) protects employee postings on the internet. The NLRA protects employees in “circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management,” even if that action takes place online.
The NLRB has taken the position that, in general, so long as an employee’s online posting is related to the terms and conditions of his or her employment, it is considered protected speech and the employee cannot be fired for it. The NLRB also has routinely struck down employer policies prohibiting employee statements that could damage the company, defame any individual, or damage any person's reputation. However, online postings of threats of violence against co-workers, supervisors, or company property generally are not protected and an employer typically may terminate an employee for such conduct.
Ultimately, the determination of whether a social media post constitutes protected activity under the NLRA requires an individualized inquiry. The slightest difference in wording can mean the difference between a lawful and an unlawful termination. As social media continues to play a larger role in employees’ lives, enterprising individuals and companies will continue to develop tools such as the FireMe! application. However, employers should cautiously decide whether to utilize such tools. In addition, employers may want to consider using such tools for constructive purposes. Employees may take to Twitter and other social media outlets to vent workplace-related frustrations of which an employer is simply unaware. Employers can then take steps to remedy these issues, leading to a happier and more productive workplace.
*B. Jason Rossiter practices in all areas of employment litigation. He has extensive experience helping employers navigate through social media and related employment issues. For more information about this ever changing area, please contact Zashin & Rich at 216.696.4441.
Do the Math: Unpaid Interns Don’t Equal Free Labor
By David R. Vance*According to the National Association of Colleges and Employers, 55% of students in 2012 graduated with some internship experience on their resume. While unpaid internships can benefit students and employers, employers must ensure any such internship comply with both federal and state wage and hour laws. Failure to do so may result in a lawsuit with a potentially large damage award.
In 2010, the Deputy Wage and Hour Administrator for the United States Department of Labor (“DOL”) told the New York Times, “If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law.” Since then, unpaid interns have filed numerous class action lawsuits claiming that the companies for which they interned violated the Fair Labor Standards Act (“FLSA”) by failing to pay them for their work.
The FLSA does not specifically contain an exception for student interns. Rather, the DOL has provided a small exception for “trainees,” and has recognized that student interns may qualify as trainees. If an intern is considered a “trainee” under the FLSA, employers are not required to pay the intern minimum wage or overtime. In order to constitute a trainee, unpaid interns must satisfy the six factors set out by the United States Supreme Court in Walling v. Portland Terminal Co., 330 U.S. 148 (1947).
After Walling, the DOL released Fact Sheet number 71 which applies the six factors to unpaid interns. According to the DOL, if all of the following requirements are met, the intern does not constitute an employee under federal law:
- The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
- The training is for the benefit of the trainees or students;
- The trainees or students do not displace regular employees, but work under close supervision;
- The employer that provides the training receives no immediate advantage from the activities of the trainees or students and, on occasion, the employer’s operations may even be impeded;
- The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
- The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.
While many courts look to these factors to determine whether an unpaid internship is proper, the United States Court of Appeals for the Sixth Circuit, which covers Ohio, does not. Instead, the 6th Circuit uses the “primary benefit test” articulated in Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518 (6th Cir. Tenn. 2011). The primary benefit test determines “whether an employment relationship exists in the context of a training or learning situation [by ascertaining] which party derives the primary benefit from the relationship. Solis at 529. According to the Sixth Circuit, if an employer derives the primary benefit, then an employment relationship exists, and the FLSA and other pertinent laws apply.
Unpaid internships at non-profit organizations are generally permissible because the FLSA includes exceptions for volunteers who perform services for state or local government agencies and those who volunteer at food banks. The Wage and Hour Division of the DOL also has recognized other exceptions for interns working at religious, charitable, civic or humanitarian non-profit organizations who freely volunteer their time without any expectation of compensation.
To help ensure compliance with the FLSA, employers should have interns sign a written agreement when their internship commences. This agreement should make clear that the intern is not entitled to wages or a permanent position upon completion of the program. Companies also should rotate interns through different departments, have specific goals for interns, and closely supervise interns so that the experience is truly educational.
Employers and students alike can benefit from internship programs. However, employers must carefully navigate through FLSA and DOL rules and regulations (as well as applicable state laws) to ensure that a mutually beneficial experience does not become a very costly lawsuit.
*David R. Vance practices in all areas of employment law and has extensive experience representing employers in wage and hour matters as well as advising employers about internship programs. If you have any questions about the FLSA or wage and hour issues affecting your workplace, contact David (drv@zrlaw.com) at 216.696.4441.
Enough is Enough: How Much Time Must an Employer Give an Employee as a Form of a Reasonable Accommodation Under the ADA?
By Emily A. Smith*An employee ventures into his or her manager’s office and requests medical leave for a disability. The employee produces a note from his or her doctor that supports the employee’s request, so the employer grants the employee’s request for leave. The employee’s leave expires and the employee subsequently submits another request. The employer once again grants the employee’s request. This scene replays itself over again and again and again, like a scene out of Groundhog Day. The employer is left stranded, wondering “When is enough, enough?”
The Americans with Disabilities Act (“ADA”) does not mandate that employers grant employees indefinite leaves of absence. However, the ADA provides employers little assistance in determining how much leave is reasonable in situations like the one described above. Are employers’ hands tied when an employee makes repeated requests for leave?
The Eleventh Circuit recently provided some clarity in Santandreu v. Miami Dade County, 2013 U.S. App. LEXIS 5542 (11th Cir. 2013). In this case, Juan Santandreu alleged that his employer failed to provide reasonable accommodations for his disability. Santandreu worked as an engineer in the Miami Dade County Water and Sewer Department (“Miami Dade”). He went out on medical leave in January 2006 due to an “illness.” Santandreu then requested four extensions of his leave, each request coming just as the previous request was set to expire. In all, Santandreu requested, and Miami Dade granted, leave from January 2006 through May 4, 2007.
On May 1, 2007, Miami Dade sent Santandreu a letter advising him that he was to return to work on May 5, 2007. He did not return to work but advised Miami Dade on May 15, 2007, that his leave of absence should be extended until July 25, 2007. Miami Dade informed Santandreu he had exhausted all available leave and would be terminated if he did not return to work. Miami Dade subsequently sent Santandreu a Disciplinary Action Report (“DAR”), and Santandreu voluntarily resigned in lieu of receiving or opposing the DAR. Santandreu then attempted to rescind his resignation, and Miami Dade denied his request.
Santandreu filed suit against Miami Dade, claiming disability discrimination and retaliation in violation of the ADA. At trial, Miami Dade moved for judgment as a matter of law. The trial court granted the motion, finding that Santandreu had failed to show that additional leave would have enabled him to return to work in a reasonably definite period of time. The trial court also found that the DAR did not constitute retaliation because Santandreu had voluntarily resigned before the DAR became part of his record.
On appeal, the Eleventh Circuit affirmed the decision of the trial court. The court first rejected Santandreu’s argument that Miami Dade should have provided additional leave or transferred him to a vacant position. The court noted that Santandreu bore the burden of identifying an accommodation and demonstrating that the accommodation allowed him to perform the essential functions of his job. It further noted that the ADA does not require an employer to provide leave for an indefinite period of time when an employee is uncertain about the duration of his leave. The court found that Santandreu never demonstrated he could return to work within a reasonable time. Even after fifteen months of leave, he did not know when his doctor would allow him to resume working. Therefore, because Santandreu could not show that he could perform the essential functions of his job in the reasonably immediate future, his request for additional leave was not a request for a reasonable accommodation. For similar reasons, the court found that Miami Dade was not required to transfer Santandreu to another position. Since his medical condition prevented him from performing any work, he was not qualified for any alternate position.
Finally, the court found that Miami Dade did not retaliate against Santandreu by issuing him the DAR, because Santandreu voluntarily resigned in lieu of accepting or responding to the DAR. As such, the court found that Santandreu did not suffer an adverse employment action.
While this case does not establish a bright-line test that can be used by employers to determine when an employee’s requests for leave become unreasonable, it does provide some guidance. This case reaffirms that the employee bears the burden of showing a reasonably definite return-to-work date on which the employee will be able to perform the tasks required of him or her upon the employee’s return.
An employer who is faced with a situation like that in Santandreu should err on the side of caution when denying a request for leave. If the employee’s request for leave is reasonable in length and the employee will be able to perform the essential tasks required of him or her at the end of the period of leave, the leave should be granted. However, if the employee continuously requests time off, and has given no indication of returning to work, the employer may carefully consider discharging the employee so long as other reasonable accommodations, such as a transfer, are given serious consideration. Employers also should engage in the interactive process with the employee to ensure that they understand the employee’s condition and whether a reasonable accommodation exists in order to avoid liability under the ADA.
*Emily A. Smith practices at the firm’s Columbus, Ohio office in all areas of employment litigation. Emily has extensive experience in resolving ADA claims and helping employers create and implement medical leave policies and procedures. For more information about ADA compliance, or any other labor and employment issue, please contact Zashin & Rich at 614.224.4411.
The Dukes of Hazzard: OSHA and Workplace Bullying
By Scott Coghlan*Earlier this year the Occupational Safety and Health Administration (“OSHA”) and the Department of Labor (“DOL”) filed suit against an employer for terminating an employee who reported workplace violence. OSHA argued that the employee’s discharge was tantamount to discharging an employee for complaining about unsafe work conditions. The fact that the alleged unsafe working conditions involved an employee’s fear of workplace violence made this case unusual.
The employee worked for Duane Thomas Marine Construction and its owner, Duane Thomas (“Thomas”). The employee claimed Thomas engaged in workplace violence and created hostile working conditions on several occasions between 2009 and 2011. Thomas allegedly was abusive, made inappropriate sexual comments, yelled, screamed, and withheld the employee’s paycheck.
The employee worked directly for and reported to Thomas. The employee claimed that Thomas’ verbal, mental, and emotional abuse in the workplace had forced her and a coworker to walk off the job. The next day, Thomas requested that the employee (and her coworker) return to work in exchange for Thomas’ promise to stop any workplace bullying or abuse. However, the employee alleged that the workplace bullying and abuse continued despite Thomas’ repeated promises to cease such behavior.
In February 2011, the employee filed a whistleblower complaint with OSHA. After filing this complaint, she alleged that Thomas retaliated against her due to her complaints. Thomas, upon receiving notice of the employee’s OSHA complaint, denied the employee remote access to files, and ultimately discharged the employee. After the employee’s discharge, the OSHA investigation found merit to the employee’s complaint.
This suit seems to indicate a shift in OSHA’s focus from addressing traditional workplace hazards toward protecting the overall health and well-being of employees. The General Duty clause of the Occupational Safety and Health Act of 1970 (“OSH Act”) requires “each employer to furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 USCS § 654(a)(1). OSHA has typically used the General Duty clause to enforce safety standards relating to industrial hazards such as high noise levels, chemical exposure, or electrical hazards. However, this case involves one of the first – if not the first – OSHA lawsuit against an employer for workplace bullying.
Historically, OSHA used the General Duty clause to cite hazards not yet addressed by a specific standard. Therefore, it makes sense that OSHA is now trying to combat workplace bullying through this clause because no specific provision in the OSH Act currently prevents bullying in the workplace. However, in order prevail on a general duty clause violation, OSHA must prove four basic elements: (1) the existence of an alleged condition or practice at the employer's workplace, (2) risk, presented by the alleged condition or practice, of event likely to cause death or serious physical harm, (3) employer or industry knowledge that the condition or practice is hazardous and exists or potentially exists at the employer's workplace, and (4) a feasible method by which the employer could have eliminated or materially reduced the alleged hazardous condition or practice.
Importantly, the OSH Act does not require that an employee’s concerns about workplace safety be valid. The alleged atmosphere of abuse and bullying caused by the employer and owner in this case may or may not have actually presented a valid safety hazard. Regardless, the OSH Act makes it unlawful for an employer to terminate an employee for complaining about a workplace safety concern. Employers must be wary not to retaliate against an employee who complains about workplace bullying, violence, or abuse, as it appears OSHA may subject them to a whistleblowing action.
In addition to liability under federal law, employees may also bring civil actions against employers under state law for workplace bullying. A number of theories of liability exist such as negligent hiring, supervision and retention, respondeat superior and failure to warn.
In order to combat workplace bullying and its legal implications, employers should consider workplace violence policies, which include reporting mechanisms for employees to report workplace violence or threats of violence. Employers should also conduct robust investigations of any and all complaints. Finally, employers can limit liability by fully investigating a potential new hire’s references for any patterns or signs of past violent behavior or improper work conduct.
*Scott Coghlan, the chair of the firms’ Workers’ Compensation Group, has extensive experience in all aspects of OSHA and workers’ compensation. For more information about OSHA compliance, please contact Scott (sc@zrlaw.com) at 216.696.4441.
Z&R SHORTS
State Law Update
On May 2, 2013, Maryland governor Martin O’Malley signed Senate Bill 4, making Maryland the ninth state to “ban the box,” removing questions about criminal history from state job applicants and postponing such questions until later in the hiring process. Maryland’s “ban the box” law applies to state applications and prohibits authorities in the judicial, legislative and executive branches of the Maryland State Government from inquiring into an applicant’s criminal history until after the applicant has been interviewed. This law, however, does not prohibit notifications to applicants that certain previous convictions may disqualify an applicant from consideration.
On May 21, 2013, Washington governor Jay Inslee signed Senate Bill 5211 into law, making Washington the latest state to ban employers from requiring or requesting that applicants and current employees disclose their username and password to their personal social media accounts. The law also prohibits an employer from requiring or coercing an applicant or current employee to add a person to the list of contacts or followers associated with the individual’s personal social networking account. However, this new law does not apply to a social network or intranet the employer uses to facilitate work-related information exchange.
On May 25, 2013, Nevada governor Brian Sandoval signed Senate Bill 127 into law, making Nevada the tenth state to prohibit employers from using credit information for employment purposes. The new law will become effective on October 1, 2013. This law prohibits employers from requiring or requesting an applicant or employee to submit credit information as a condition of employment. Employers also may not use or refer to credit information when making employment decisions. The law also prohibits an employer from refusing to hire an applicant or taking an adverse employment action against an employee who refuses to divulge credit information or who has filed a complaint or lawsuit under this law.
Zashin & Rich Continues its Columbus, Ohio Expansion
Zashin & Rich is pleased to announce the addition of Jonathan Downes to its Employment and Labor Group in its Columbus office. Jonathan Downes brings more than thirty years of experience and expertise in representing employers in all aspects of labor and employment law. In 1990, Jonathan co-founded a Columbus labor and employment law firm where he successfully represented public and private employers in all aspects of labor relations and human resource management. In addition to negotiating over 500 labor contracts, Jonathan has represented employers in hundreds of arbitrations, organizing campaigns, and administrative hearings. Jonathan has also defended employers in state courts, appellate courts, the Ohio Supreme Court, and the United States Court of Appeals for the Sixth Circuit.
Wednesday, July 31, 2013 4:20 pm
Stephen Zashin will be part of a panel presenting “Disability and Leaves of Absence: How to Combat the Rise in FMLA & ADA Claims (and Manage the Interplay Between Both) and Increased Policy Targeting by the EEOC” at the American Conference Institute’s 4th Annual Forum on Defending and Managing Employment Discrimination Litigation. For more details, go to AmericanConference.com/Discrimination.
Wednesday, August 21, 2013 8:30 pm
George Crisci presents “Internal Investigations” and “Separation of Employment” at the National Business Institute’s Employment Laws Made Simple in Akron, Ohio. For more details, go to www.nbi-sems.com.
Thursday, September 12, 2013
Jonathan Downes presents “Employment Law Update for Local Government” for the Ohio Government Finance Officers Association Annual Conference at the Hilton Columbus at Easton. For more details, go to www.ohgfoa.com.
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.
Tuesday, June 26, 2012
EMPLOYMENT LAW QUARTERLY | Summer 2012, Volume XIV, Issue ii
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After a five-year battle, Indiana became smoke-free on July 1, 2012 joining thirty-nine other states with similar smoking bans. The Indiana ban prohibits smoking in public places, places of employment, and government vehicles. The new law defines “place of employment” broadly as “an enclosed area of a structure that is a place of employment.” In addition, the law prohibits smoking within eight feet of a public entrance to a “public place” or “place of employment.” However, employers may designate smoking areas that are located outside the employment structure and eight feet from all public entrances.
While the vast majority of Indiana employers are required to comply with the new law, some exceptions include bars, gambling facilities, and private clubs. All other Indiana employers must remove all ashtrays and smoking paraphernalia from their premises, unless the employers are displaying the ashtrays or other smoking paraphernalia for retail sale. Employers and operators must also post signs at each public entrance informing entrants that “no smoking is permitted within eight feet of any public entrance.” If a “place of employment” is also a “public place” – and many are – the owner, operator, manager, or official in charge must also: post conspicuous signs in the public place that read “Smoking is Prohibited by State Law” or other similar language; ask anyone smoking in violation of the Act to cease smoking; and cause anyone who refuses to cease smoking “to be removed from the public place.”
Under the new law, employers must inform current employees and applicants of the prohibition. Therefore, Z&R recommends that Indiana employers add the smoking prohibition to their employment applications and handbooks. The state law specifically authorizes local governments to enact more restrictive ordinances. Thus, employers must also comply with any more restrictive local ordinances if they exist. Violations of the state smoking ban include fines up to $1,000.
*Ami J. Patel has experience representing employers in all types of labor and employment matters. Ami also has experience assisting employers with state-specific compliance issues. Please contact Ami (ajp@zrlaw.com) at 216.696.4441 for any questions on Indiana’s smoking ban.
The Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance regarding the use of arrests and convictions in employment decisions. The EEOC last issued guidance on this issue over twenty years ago.
The EEOC enforces Title VII of the Civil Rights Act of 1964 (“Title VII”) which prohibits employment discrimination based on race, color, religion, sex, or national origin. Title VII does not list “criminal record” as a protected status against employment discrimination. Therefore, whether an employer’s reliance on a criminal record violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin.
The guidance describes the circumstances under which the use of arrest and conviction records in hiring may violate Title VII. Similar to prior EEOC guidance, the new EEOC guidance encourages the use of the Green factors. See Green v. Missouri Pacific Railroad Company, 523 F.2d 1158, 1160 (8th Cir. 1975). In Green, the court outlines factors employers should consider when making employment decisions based on an employee’s or applicant’s criminal history. The Green factors are:
The EEOC suggests employers should conduct an individualized assessment when making employment decisions on criminal history.The new guidance focuses on how an employer can show the exclusion is job-related and consistent with business necessity. The EEOC discusses two circumstances in which an employer's criminal conviction policy will “consistently meet” Title VII's “job-related and consistent with business necessity” defense. According to the EEOC, employers can validate their use of background screening policies and practices or develop a targeted screen using the Green factors. If the employer develops a targeted screen, the employer must provide employees with criminal records an opportunity for an “individualized assessment.”
The guidance acknowledges that Title VII does not necessarily require an individualized assessment; however, the guidance strongly suggests that employers use an “individualized assessment” in these circumstances. The individualized assessment would consist of:
The EEOC offers best practice tips for employers that include:
The Massachusetts Criminal Offender Record Information ("CORI") law created a new method and database for employers to access criminal records. CORI imposes a host of new obligations for employers. As previously reported by Z&R, part of the "ban the box" law became effective in 2010. The "ban the box" provision mandates employers remove all questions seeking information about an applicant's criminal record or criminal history on "initial written employment applications."
In addition to the "ban the box" requirement, Massachusetts employers must also maintain several CORI records and policies. The significant changes include:
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law, has experience representing employers in all types of labor and employment matters. Stephen also has experience assisting employers with state-specific compliance issues. Please contact Stephen (ssz@zrlaw.com) at 216.696.4441 for any questions on the new prohibitions under Massachusetts law.
In U.S. Equal Employment Opportunity Commission v. Dillard’s, Inc., et al., the Southern District of California held that a company’s attendance policy which required an employee to submit a doctor’s note stating “the nature of the absence” and “the condition being treated” was an impermissible disability-related inquiry under the Americans with Disabilities Act, 42 U.S.C. § 12112(d)(4)(A) (“ADA”).
The ADA prohibits an employer from “making inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” However, an employer “may make inquiries into the ability of an employee to perform job-related functions.” See 42 U.S.C. § 12112(d)(4)(B).
Dillard’s, Inc. El Centro Store (“Dillard’s”) had an attendance policy that would not excuse an employee’s health-related absence unless the employee submitted a doctor’s note stating “the nature of the absence (such as a migraine, high blood pressure, etc…)” and “the condition being treated.” Dillard’s terminated any employee who accumulated four unexcused absences of any kind. Three separate employees experienced difficulty in getting health-related absences approved because the doctor’s notes they submitted did not state the medical conditions that led to their absences. After bringing their concerns to the Equal Employment Opportunity Commission (“EEOC”), the EEOC brought a suit against Dillard’s on behalf of 60 individuals, claiming these individuals also were subjected to Dillard’s allegedly unlawful attendance policy. Dillard’s rescinded the attendance policy in July 2007. However, the EEOC still pursued this case on behalf of the individuals affected under the policy from 2005-2007.
The EEOC defines a “disability-related inquiry” as a question that is likely to elicit information about a disability. For example, the EEOC allows an employer to ask questions about an employee’s general well-being, whether they can perform job functions, and about current illegal drug use. Here, however, the EEOC argued that requiring the employee to disclose the health condition was a “disability-related inquiry.” Dillard’s argued that the attendance policy did not violate the plain language of the statute.
The court relied on two court decisions to find that the attendance policy made impermissible inquiries into medical conditions. First, the court relied on Conroy v. New York Department of Correctional Services, 333 F.3d 88 (2d Cir. 2003). In Conroy, the court found that an inquiry regarding a “general diagnosis” may tend to reveal a disability violating § 12112(d)(4)(A). Likewise, in Indergard v. Georgia-Pacific Corporation, 582 F.3d 1049 (9th Cir. 2009) the court found a policy impermissible which required employees to submit to a physical capacity evaluation prior to returning to work from medical leave. The Indergard court stated that an employer could inquire “into the ability of an employee to perform job-related functions,” but that it could not require a medical examination unless such examination was job-related and consistent with business necessity. Based on Conroy and Indergard, the Court concluded that Dillard’s attendance policy, on its face, permitted supervisors to conduct impermissible disability-related inquiries under the ADA. In response, Dillard’s failed to show both job-relatedness and business necessity to know the nature of the employee’s medical condition.
Employers must remain vigilant, especially in light of recent amendments that make it easier for employees to be “disabled” under the law, that their absence policies do not make impermissible inquiries into health conditions. Employers must also train managers and human resources professionals on what types of questions constitute impermissible inquiries.
*B. Jason Rossiter practices in all areas of labor & employment law and has extensive experience representing employers in disability discrimination matters. If you have any questions about your attendance policy or whether an inquiry will be permissible, contact Zashin & Rich at 216.696.4441.
Earlier this year, the Equal Employment Opportunity Commission (“EEOC”) released a decision stating that Title VII sex discrimination claims include discrimination against transgender individuals. By definition, transgender individuals self-identify as a different gender from their biological sex at birth.
The Bureau of Alcohol, Tobacco, Firearms (“ATF”) denied Mia Macy, a transgender woman, a position as a ballistics technician after she announced she was transitioning from male to female. Ms. Macy had several conversations with the lab director who allegedly told her that the position was hers, subject to a background check. During the process, she informed the lab director of her transition. A few days later, she received an email stating that the job was no longer available due to budget restrictions. However, Ms. Macy later learned that the ATF hired someone else.
Ms. Macy filed a formal internal complaint with the ATF claiming “sex stereotyping” and “gender identity” discrimination. However, the ATF only accepted her claim “based on sex (female)” under Title VII as part of its complaint process. Ms. Macy then appealed to the EEOC, which serves as an appellate tribunal for final ATF decisions and the EEOC reversed the ATF’s final decision.
The EEOC determined that the term “sex” encompasses both the biological differences between men and woman, as well as gender differences. Title VII thus bars not just discrimination on the basis of biological sex, but also on the basis of gender stereotyping—targeting someone for failing to act and appear according to expectations defined by gender. The EEOC found that if an employer intentionally discriminates against an applicant or employee because he or she is transgender, such discrimination is by definition unlawful sex discrimination.
Employers should review their employment policies and practices and consider revising them to conform to the EEOC’s decision. In some instances, employers may have to create new policies. Some policies and/or procedures that may need to be updated include:
If you are interested in attending, please RSVP to Cassandra by Thursday October 11: cflanigan@cedarbrookfinancial.com or by phone 440.683.9240- Indiana Prohibits Smoking in Places of Employment
- The EEOC Issues Guidance on Criminal Background Checks and Suggests Focusing on Individualized Assessments
- Massachusetts Criminal Background Check Law Adds to the "Ban the Box" Requirement
- Tread Lightly When Inquiring Into Employee Absences – Asking for a Doctor's Note May Violate the ADA
- EEOC Clarifies that Title VII Protects Transgendered Individuals from Employment Discrimination
- Z&R Shorts
Indiana Prohibits Smoking in Places of Employment
by Ami J. Patel*After a five-year battle, Indiana became smoke-free on July 1, 2012 joining thirty-nine other states with similar smoking bans. The Indiana ban prohibits smoking in public places, places of employment, and government vehicles. The new law defines “place of employment” broadly as “an enclosed area of a structure that is a place of employment.” In addition, the law prohibits smoking within eight feet of a public entrance to a “public place” or “place of employment.” However, employers may designate smoking areas that are located outside the employment structure and eight feet from all public entrances.
While the vast majority of Indiana employers are required to comply with the new law, some exceptions include bars, gambling facilities, and private clubs. All other Indiana employers must remove all ashtrays and smoking paraphernalia from their premises, unless the employers are displaying the ashtrays or other smoking paraphernalia for retail sale. Employers and operators must also post signs at each public entrance informing entrants that “no smoking is permitted within eight feet of any public entrance.” If a “place of employment” is also a “public place” – and many are – the owner, operator, manager, or official in charge must also: post conspicuous signs in the public place that read “Smoking is Prohibited by State Law” or other similar language; ask anyone smoking in violation of the Act to cease smoking; and cause anyone who refuses to cease smoking “to be removed from the public place.”
Under the new law, employers must inform current employees and applicants of the prohibition. Therefore, Z&R recommends that Indiana employers add the smoking prohibition to their employment applications and handbooks. The state law specifically authorizes local governments to enact more restrictive ordinances. Thus, employers must also comply with any more restrictive local ordinances if they exist. Violations of the state smoking ban include fines up to $1,000.
*Ami J. Patel has experience representing employers in all types of labor and employment matters. Ami also has experience assisting employers with state-specific compliance issues. Please contact Ami (ajp@zrlaw.com) at 216.696.4441 for any questions on Indiana’s smoking ban.
The Equal Employment Opportunity Commission Issues Guidance on Criminal Background Checks and Suggests Focusing on Individualized Assessments
by Patrick M. WattsThe Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance regarding the use of arrests and convictions in employment decisions. The EEOC last issued guidance on this issue over twenty years ago.
The EEOC enforces Title VII of the Civil Rights Act of 1964 (“Title VII”) which prohibits employment discrimination based on race, color, religion, sex, or national origin. Title VII does not list “criminal record” as a protected status against employment discrimination. Therefore, whether an employer’s reliance on a criminal record violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin.
The guidance describes the circumstances under which the use of arrest and conviction records in hiring may violate Title VII. Similar to prior EEOC guidance, the new EEOC guidance encourages the use of the Green factors. See Green v. Missouri Pacific Railroad Company, 523 F.2d 1158, 1160 (8th Cir. 1975). In Green, the court outlines factors employers should consider when making employment decisions based on an employee’s or applicant’s criminal history. The Green factors are:
- The nature or gravity of the offense or conduct;
- The time elapsed since the offense, conviction, and/or completion of the sentence; and
- The nature of the job sought or held.
The EEOC suggests employers should conduct an individualized assessment when making employment decisions on criminal history.The new guidance focuses on how an employer can show the exclusion is job-related and consistent with business necessity. The EEOC discusses two circumstances in which an employer's criminal conviction policy will “consistently meet” Title VII's “job-related and consistent with business necessity” defense. According to the EEOC, employers can validate their use of background screening policies and practices or develop a targeted screen using the Green factors. If the employer develops a targeted screen, the employer must provide employees with criminal records an opportunity for an “individualized assessment.”
The guidance acknowledges that Title VII does not necessarily require an individualized assessment; however, the guidance strongly suggests that employers use an “individualized assessment” in these circumstances. The individualized assessment would consist of:
- notice to the individual that he or she has been screened out because of a criminal conviction;
- an opportunity for the individual to demonstrate that the exclusion should not be applied due to his or her particular circumstances; and
- consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job-related and consistent with business necessity.
- the facts and circumstances surrounding the offense or conduct;
- the number of offenses for which the individual was convicted;
- the age of the individual at the time of conviction or release, as evidence suggests that recidivism rates tend to decline as ex-offenders’ ages increase;
- any evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
- the length and consistency of employment history before and after the offense or conduct;
- rehabilitation efforts, including education or training;
- employment or character references and any information regarding fitness for the particular position; and
- whether the individual is bonded.
The EEOC offers best practice tips for employers that include:
- Eliminating policies that impose an absolute bar to employment based on any conviction;
- Training hiring managers about appropriate use of conviction history in hiring and promotion and separation;
- Tailoring screening procedures to ensure that they are job-related and consistent with business necessity;
- Prohibiting asking applicants for disclosure of convictions that are not job-related and consistent with business necessity; and
- Keeping information about applicants’ and employees' conviction history confidential.
Massachusetts Criminal Background Check Law Adds to the "Ban the Box" Requirement
by Stephen S. Zashin*The Massachusetts Criminal Offender Record Information ("CORI") law created a new method and database for employers to access criminal records. CORI imposes a host of new obligations for employers. As previously reported by Z&R, part of the "ban the box" law became effective in 2010. The "ban the box" provision mandates employers remove all questions seeking information about an applicant's criminal record or criminal history on "initial written employment applications."
In addition to the "ban the box" requirement, Massachusetts employers must also maintain several CORI records and policies. The significant changes include:
- Employer Access
CORI data soon will be available to all employers via a new Web-based criminal background database, known as "iCORI."
- Notification Requirements
Employers must provide applicants and current employees with a copy of their criminal history reports before either questioning them about the reports or making adverse employment decisions based on the information therein. This requirement applies to all criminal background information, regardless of whether it is obtained through iCORI.
- Record-keeping Requirements
Employers that receive CORI data must obtain signed acknowledgment forms before conducting a search, and employers must keep the record for one year from the date of the request for information.
- Dissemination Restrictions
Employers may share CORI data only with employees that have a need to know the information. Employers also must keep a log of all persons with whom they share CORI data for a year after the date of dissemination.
- Data Storage
Employers are required to store hard copies of CORI data in locked and secured locations. Electronically stored data must be password-protected and properly encrypted.
- Written Policy Requirements
Employers that annually conduct five or more criminal background investigations must maintain a written CORI policy. This policy must indicate that the employer will notify applicants of any potential adverse decision based on CORI information, provide applicants with their CORI report and the employer policy, and provide information concerning the process for correcting a criminal record.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law, has experience representing employers in all types of labor and employment matters. Stephen also has experience assisting employers with state-specific compliance issues. Please contact Stephen (ssz@zrlaw.com) at 216.696.4441 for any questions on the new prohibitions under Massachusetts law.
Tread Lightly When Inquiring Into Employee Absences – Asking for a Doctor’s Note May Violate the ADA
by B. Jason Rossiter*In U.S. Equal Employment Opportunity Commission v. Dillard’s, Inc., et al., the Southern District of California held that a company’s attendance policy which required an employee to submit a doctor’s note stating “the nature of the absence” and “the condition being treated” was an impermissible disability-related inquiry under the Americans with Disabilities Act, 42 U.S.C. § 12112(d)(4)(A) (“ADA”).
The ADA prohibits an employer from “making inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” However, an employer “may make inquiries into the ability of an employee to perform job-related functions.” See 42 U.S.C. § 12112(d)(4)(B).
Dillard’s, Inc. El Centro Store (“Dillard’s”) had an attendance policy that would not excuse an employee’s health-related absence unless the employee submitted a doctor’s note stating “the nature of the absence (such as a migraine, high blood pressure, etc…)” and “the condition being treated.” Dillard’s terminated any employee who accumulated four unexcused absences of any kind. Three separate employees experienced difficulty in getting health-related absences approved because the doctor’s notes they submitted did not state the medical conditions that led to their absences. After bringing their concerns to the Equal Employment Opportunity Commission (“EEOC”), the EEOC brought a suit against Dillard’s on behalf of 60 individuals, claiming these individuals also were subjected to Dillard’s allegedly unlawful attendance policy. Dillard’s rescinded the attendance policy in July 2007. However, the EEOC still pursued this case on behalf of the individuals affected under the policy from 2005-2007.
The EEOC defines a “disability-related inquiry” as a question that is likely to elicit information about a disability. For example, the EEOC allows an employer to ask questions about an employee’s general well-being, whether they can perform job functions, and about current illegal drug use. Here, however, the EEOC argued that requiring the employee to disclose the health condition was a “disability-related inquiry.” Dillard’s argued that the attendance policy did not violate the plain language of the statute.
The court relied on two court decisions to find that the attendance policy made impermissible inquiries into medical conditions. First, the court relied on Conroy v. New York Department of Correctional Services, 333 F.3d 88 (2d Cir. 2003). In Conroy, the court found that an inquiry regarding a “general diagnosis” may tend to reveal a disability violating § 12112(d)(4)(A). Likewise, in Indergard v. Georgia-Pacific Corporation, 582 F.3d 1049 (9th Cir. 2009) the court found a policy impermissible which required employees to submit to a physical capacity evaluation prior to returning to work from medical leave. The Indergard court stated that an employer could inquire “into the ability of an employee to perform job-related functions,” but that it could not require a medical examination unless such examination was job-related and consistent with business necessity. Based on Conroy and Indergard, the Court concluded that Dillard’s attendance policy, on its face, permitted supervisors to conduct impermissible disability-related inquiries under the ADA. In response, Dillard’s failed to show both job-relatedness and business necessity to know the nature of the employee’s medical condition.
Employers must remain vigilant, especially in light of recent amendments that make it easier for employees to be “disabled” under the law, that their absence policies do not make impermissible inquiries into health conditions. Employers must also train managers and human resources professionals on what types of questions constitute impermissible inquiries.
*B. Jason Rossiter practices in all areas of labor & employment law and has extensive experience representing employers in disability discrimination matters. If you have any questions about your attendance policy or whether an inquiry will be permissible, contact Zashin & Rich at 216.696.4441.
Equal Employment Opportunity Commission Clarifies that Title VII Protects Transgendered Individuals from Employment Discrimination
by Stefanie L. BakerEarlier this year, the Equal Employment Opportunity Commission (“EEOC”) released a decision stating that Title VII sex discrimination claims include discrimination against transgender individuals. By definition, transgender individuals self-identify as a different gender from their biological sex at birth.
The Bureau of Alcohol, Tobacco, Firearms (“ATF”) denied Mia Macy, a transgender woman, a position as a ballistics technician after she announced she was transitioning from male to female. Ms. Macy had several conversations with the lab director who allegedly told her that the position was hers, subject to a background check. During the process, she informed the lab director of her transition. A few days later, she received an email stating that the job was no longer available due to budget restrictions. However, Ms. Macy later learned that the ATF hired someone else.
Ms. Macy filed a formal internal complaint with the ATF claiming “sex stereotyping” and “gender identity” discrimination. However, the ATF only accepted her claim “based on sex (female)” under Title VII as part of its complaint process. Ms. Macy then appealed to the EEOC, which serves as an appellate tribunal for final ATF decisions and the EEOC reversed the ATF’s final decision.
The EEOC determined that the term “sex” encompasses both the biological differences between men and woman, as well as gender differences. Title VII thus bars not just discrimination on the basis of biological sex, but also on the basis of gender stereotyping—targeting someone for failing to act and appear according to expectations defined by gender. The EEOC found that if an employer intentionally discriminates against an applicant or employee because he or she is transgender, such discrimination is by definition unlawful sex discrimination.
Employers should review their employment policies and practices and consider revising them to conform to the EEOC’s decision. In some instances, employers may have to create new policies. Some policies and/or procedures that may need to be updated include:
- Equal Employment Opportunity non-discrimination and harassment policies;
- Pre-employment screening policies;
- Employee codes of conduct;
- Dress codes and appearance policies;
- Use of pronouns;
- Procedures to change information, e.g., personnel records to reflect gender change identity; and
- Policies regarding use of restrooms, locker rooms, and other gender-specific facilities.
Z&R Shorts
Soon To Be Expired Form I-9 To Remain Valid
The current Form I-9 is set to expire on August 31, 2012. The expiration date is on the upper right hand corner of the form. However, the U.S. Citizenship and Immigration Services (“USCIS”) announced earlier this month that the form would remain valid beyond this expiration date. As such, employers should continue to use the current Form I-9, until further notice from the USCIS.American Arbitration Association University
George Crisci will be part of the panel presenting “Grievance Processing” on September 13, 2012, at the Cleveland Metropolitan Bar Association, 1301 East Ninth Street, Second Level, Cleveland, Ohio. To register go to www.aaau.org.2012 Masters Series: Employment Law CLE seminar
Stephen Zashin will co-present “Wage/Hour Litigation” on September 18, 2012 at the Columbus Bar Association, 175 South Third Street, Suite 1100, Columbus, Ohio. To register go to www.cbalaw.org.ACI’s 16th National Forum on Wage & Hour Claims and Class Actions
Stephen Zashin will be part of the panel presenting “Arbitrating Wage & Hour in the Wake of AT&T Mobility and D.R. Horton on September 28, 2012 at the Hilton San Francisco Financial District in San Francisco, California. To register go to AmericanConference.com/WageHourSNF.49th Annual Midwest Labor and Employment Law Seminar
Stephen Zashin will be part of the panel presenting “Managing Cost of E-Discovery” on October 12, 2012 at the Hilton, Easton Town Center in Columbus, Ohio. To register go to www.ohiobar.org.Health Care Reform… How will it affect you?
Pat Hoban is the keynote speaker for the FREE seminar and breakfast presented by Cedar Brook Financial Partners on Tuesday, October 16th, 2012 at 9:00am at Cedar Brook Financial Partners, 5885 Landerbrook Drive, Mayfield Heights, Ohio 44124. Seminar will take place in the Garage Level Conference RoomLabor Law Seminar presented by Faulkner, Hoffman & Phillips, LLC
Jon Dileno will co-present “Grievance/Arbitration Processing Strategy” on October 29, 2012 at the FOP 67 Lodge Hall.American Bar Association Section of Labor and Employment Law
6th Annual Labor and Employment Law ConferenceGeorge Crisci will be part of the panel presenting “One Year After Wisconsin and Ohio – The State of the Public Sector” on November 2, 2012, at the Westin Peachtree Plaza, 210 Peachtree St SW. Atlanta, GA. To register go to www.americanbar.org.
Wednesday, March 9, 2011
EMPLOYMENT LAW QUARTERLY | Winter 2011, Volume XIII, Issue i
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A California court recently held that emails between an employee and his or her attorney are not privileged and confidential if sent or received via the employee's work email. Holmes v. Petrovich Development Co., LLC, 2011 Cal. App. LEXIS 33 (Cal. App. 3d Dist. Jan. 13, 2011).
Gina Holmes worked at Petrovich Development ("Petrovich") for two months as an administrative assistant. She quit after her boss made several comments regarding her pregnancy. Holmes alleged sexual harassment, retaliation, wrongful discharge in violation of public policy, violation of her right to privacy, and intentional infliction of emotional distress. The case, however, came to a quick close after Petrovich showed that Holmes only sued after being prodded by a lawyer. Petrovich did this by using emails Holmes sent and received from her attorney through her work email account.
In determining whether the emails sent from Holmes's work account were discoverable, the court examined whether the emails were confidential and whether any privilege applied. The court found that emails sent by Holmes to her attorney regarding possible legal action against her former employer did not constitute "confidential communication between client and lawyer" within the meaning of California's Evidence Code § 952. The court reasoned that the emails sent via her company computer "were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him."
The court concluded that the emails were not protected because Holmes used her work email account to send the emails to her attorney. Petrovich also told Holmes of the company's policy (via employee handbook) that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal email. The employee handbook further warned that the company would monitor its computers for compliance with this company policy and thus might "inspect all files and messages . . . at any time." Id. Additionally, Petrovich explicitly advised Holmes that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message." Id.
This ruling, while based on California Evidence Rules, could have a significant impact on the developing area of e-discovery and attorney-client privilege issues. This decision reflects the ever-changing area of attorney-client privilege in the era of emails and social media.
*Jason Rossiter practices in all areas of employment litigation and is licensed to practice law in Ohio, Pennsylvania, and California. For more information about the developing area of e-discovery and attorney-client privilege issues, please contact Zashin & Rich at 216.696.4441.
By Patrick J. Hoban*
Timothy Lewis ("Lewis"), a former supervisor at Whirlpool's plant in Marion, Ohio, brought a claim for wrongful termination in violation of Ohio public policy. The United States District Court dismissed Lewis' complaint for lack of subject matter jurisdiction, holding that his claim was preempted by the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158. The United States Sixth Circuit Court of Appeals recently upheld the dismissal. See Lewis v. Whirlpool Corp., No. 09-4231, 2011 U.S. App. LEXIS 593 (6th Cir. Jan. 12, 2011).
Whirlpool employed Lewis from 1997 until 2007. In 2004, several Whirlpool employees began wearing pro-union shirts and meeting with union representatives. Whirlpool's Marion facility was not unionized at the time. Lewis contended that he was pressured to "build a case" against two pro-union employees. He claimed that Whirlpool told him if he did not terminate two of the employees that Whirlpool would retaliate against him. He further claimed that Whirlpool transferred him to a less-desired area of the facility after he refused to terminate the employees.
Whirlpool discharged Lewis on April 2, 2007, for improperly clocking in one employee using the time badge of a different employee. Lewis presented evidence that another employee actually committed the transgression, but to no avail.
After his termination, Lewis filed a charge with the National Labor Relations Board ("NLRB"). The NLRB conducted an investigation and found that Whirlpool did not violate the NLRA. Specifically, the NLRB stated the charge was "without merit since no clear evidence established that it terminated [Lewis'] employment . . . because [he] refused to commit unfair labor practices on its behalf during a previous union organizing campaign some three years earlier." The NLRB informed Lewis that if he did not voluntarily withdraw his charge, the NLRB would withdraw it for lack of merit.
The Sixth Circuit found that Lewis's claim was subject to the Garmon preemption. See San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). In Garmon, the United States Supreme Court held "[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the NLRA, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that . . . jurisdiction must yield to the NLRB." Id. at 244. The Court found that Lewis was essentially alleging an unfair labor practice under the NLRA and his remedy was exclusively with the NLRB. The Court further when on to state that Lewis could have brought (and did bring) a claim before the NLRB – and that the claim he asserted in his Complaint was identical to the claim he brought before the NLRB.
Lewis argued that the preemption should not apply because as a "supervisor" he was not covered by the NLRA, but the Court was not persuaded. The Court stated that a "supervisor does have a viable claim under the NLRA when terminated or otherwise disciplined for refusing to commit unfair labor practices." See Lewis, 2011 U.S. App. LEXIS 593 at *6-7. The Court found "[t]he sole dispositive inquiry for [his] claims is whether Lewis was terminated for the failure to commit unfair labor practices." Id. at *7. Holding that charge with the NLRB and his Court action were identical, the Court held that Lewis' wrongful termination claim was preempted and dismissed his suit. This case reinforces the wide jurisdiction of the NLRB over labor claims and reminds employers to be mindful of whether they are properly in the court system.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about the NLRA or labor law, please contact Pat at 216.696.4441 or pjh@zrlaw.com.
By Stefanie L. Baker
Recently, the United States Supreme Court held in Thompson v. North American Stainless, LP, No. 09-291, 562 U.S. __ (2011) that a terminated employee may have a claim for retaliation under Title VII -- even if the employee never engaged in protected activity. An employee may have a Title VII claim if he alleges that his termination was in response to another employee's allegations of discrimination.
The petitioner in this case, Eric Thompson ("Thompson"), worked at North American Stainless ("North American") with his fiancée (now wife) Miriam Regalado ("Regalado"). Regalado filed a sex discrimination charge against North American. Three weeks after North American was notified of Regalado's complaint, Thompson was fired for "performance-based reasons."
Thompson filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination and retaliatory discharge under Title VII. The EEOC issued Thompson a right to sue letter, and he filed suit. The court granted summary judgment for North American, asserting that Title VII did not permit a retaliatory discharge claim by a plaintiff who did not engage in protected activity himself. The Sixth Circuit initially reversed. Later, sitting en banc, the Sixth Circuit affirmed the Trial Court's decision that Thompson was not protected under Title VII.
As it turns out the Sixth Circuit had it right the first time, as the United States Supreme Court reversed, stating that Thompson could bring his claims under Title VII because he fell within the "zone of interest" protected by Title VII. According to the Court, the case presented two questions: (1) was Thompson's termination unlawful, and (2) if so, did he have a cause of action.
The court quickly answered the first question in the affirmative, stating that a reasonable worker would be dissuaded from engaging in protected activity based upon the circumstances in this case. In answering the second question, the Court advanced the "zone of interest" test. An employee falls within the zone if: (1) he is an employee of the company; (2) he was not an accidental victim of retaliation; (3) he was injured as a means of harming the employee who engaged in protected activity; and (4) injuring the employee was the unlawful act by which the employer punished the other employee. The Court found that Thompson fell within the intended protected class under Title VII.
This case illustrates the willingness of the Court to extend protections to employees in retaliation cases. However, the Court refused to draw a bright-line rule as to where the "zone of interest" stops. From this case, it is clear that termination of a fiancé would create a third-party cause of action under Title VII. Time will tell how far beyond that the courts will extend the zone. Employers now must handle with care employees who engage in protected activity, and those closely associated with them.
by Lois A. Gruhin
Plaintiffs in Ohio may now have an easier time proving age discrimination. The Tenth Appellate District recently held that Ohio's Age Discrimination Statute, Ohio Revised Code § 4112, does not require a plaintiff to prove that her age was the "but-for" cause for termination. See Thomas v. Columbia Sussex Corp., 2011-Ohio-17 (10th App. Dist. Jan. 6, 2011).
The Age Discrimination Employment Act of 1967 ("ADEA") states that an employer cannot discharge an employee "because of" her age. See 29 U.S.C. § 623(A)(1). In Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009), the Supreme Court held that the phrase "because of" or "by reason of" requires at least a showing of "but-for" causation. As a result, a plaintiff who filed suit under the federal ADEA must prove that but for her age, she would not have been terminated.
Plaintiff Charlotte Thomas sued her former employer, the Courtyard by Marriott Hotel ("Marriott"), after the hotel discharged her. Thomas brought her claim under Ohio age discrimination law and not the ADEA. Thomas was 67 at the time of her termination. Based on Gross, the employer requested a "but-for" jury instruction. The trial court refused and instructed the jury to consider whether the plaintiff's age was "a determining factor" in Marriott's decision to terminate her employment.
The Tenth Appellate District rejected the employer's argument that the jury instructions were improper. The court held that the phrase "a determining factor" did not alter the burden of proof set forth in Gross. The court further held that "a determining factor" was the equivalent causation required under the Gross decision. Additionally, the court stated that the jury instructions made clear that Thomas always retained the burden of proving discrimination based upon her age. The court was not required to use the exact phrase requested by the employer – especially because the Gross decision states that "but-for" can mean many things, including "based on," "by reason of," and "because of."
The Thomas decision likely will shape Ohio's age discrimination law and the jury instructions appropriate under Ohio Revised Code § 4112. Proving age was the "but-for" reason for termination is arguably a more difficult burden than that required by Thomas. As a result, plaintiffs in Ohio now may have an easier time proving age discrimination under Ohio law as compared to the ADEA. This case is now on appeal to the Ohio Supreme Court. We will continue to keep you advised of the age discrimination standard under Ohio law.
By David R. Vance*
On November 4, 2010, Massachusetts’ “ban the box” law became effective. The law prohibits both private and public employers from asking questions about an applicant’s criminal history on written job applications. The law’s moniker comes from the commonly used check “yes” or “no” boxes used to respond to questions related to an employee’s criminal history. As of November 4, 2010, Massachusetts banned the use of such boxes or related questions. The law includes a few exceptions for certain jobs and smaller employers. In addition, national or international employers that hire individuals in Massachusetts may continue to ask about an applicant’s criminal history on their applications so long as they include an obvious disclaimer notifying Massachusetts applicants that they need not answer such questions.
If you are an employer operating in Massachusetts and have not done so already, you should change your application to comply with this new law.
*David R. Vance practices in all areas of employment law. For more information about hiring laws or other employment matters, please contact David at 216.696.4441 or drv@zrlaw.com.
By Stephen S. Zashin*
On December 13, 2010, New York legislators passed the Wage Theft Prevention Act (“the Act”) which becomes effective April 9th, 2011. The Act imposes new regulations regarding the payment of wages and increases the penalties for wage payment violations.
New York law currently requires employers to inform new hires of their designated pay date, rate, and overtime rate (if applicable). The Act expands this regulation and requires employers to issue a notice with similar information upon hire and by February 1st of every year. This notice must include: dates of work covered, employer’s address and telephone number, the rate of pay and the manner in which it is paid (hourly, salary, commission), gross wages, net wages, deductions, and allowances against minimum wage. The notice for non-exempt employees also must include: the regular rate, overtime rate, and the number of regular and overtime hours worked. Additionally, employers must keep records for six years, which include written notices and accompanying written acknowledgements.
The Act also provides penalties for employers who violate the regulations permitting employees to recover damages through civil action. Employers can avoid these penalties by making complete and timely payment to employees. The Act affects virtually all New York employers. As a result, New York employers should review their payroll practices to ensure compliance with the Act.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law,is licensed to practice law in Ohio and New York. Stephen’s practice encompasses all areas of employment and labor law. For moreinformation about wage and hour laws or any other employment matter, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
By Ami J. Patel*
According to data from the Bureau of National Affairs, Inc. (“BNA”), first-year wages in collective bargaining agreements reviewed increased 1.6 percent. This is down from the prior year’s 2.3 percent increase and represents a national shift to smaller increases. BNA found decreases across the board in all sectors. For 2010, the median first-year wage increase was 1.7 percent as compared to 2009’s 2.5 percent, while the weighted average was 1.8 percent in 2010 and 2.7 percent in 2009.
In addition to smaller wage increases, retirement plans, insurance costs, and other employee benefits were major topics of negotiation during 2010. Employers must consider changes in these as well as other employee benefits when evaluating these figures. For example, factoring lump-sum payments into the wage calculations creates a 2010 first-year average wage increase of 1.9 percent, as compared with 2.6 percent in 2009. When excluding construction and state and local government agencies, the number jumps dramatically. Without these entities, the 2010 increase was 2.5 percent and the 2009 increase was 3.1 percent.
It is difficult to get a picture of collective bargaining by looking only at first-year wage increases, but the numbers are instructive and can be used during negotiations.
*Ami J. Patel practices in all areas of labor and employment law, with a focus on private and public sector labor law. For more information on BNA statistics or any other labor or employment issue, contact Ami at 216.696.4441 or ajp@zrlaw.com.
Zashin & Rich Co., L.P.A. is pleased to announce the addition of Ami J. Patel to its Employment and Labor Group.
Ami’s practice focuses on private and public sector labor relations and employment issues.
Prior to joining Zashin & Rich Co., L.P.A., Ami worked as an Assistant Director of Law for the City of Cleveland. Ami's experience includes advising and defending management in FMLA, FLSA, ADA, ADEA, Title VII, and USERRA issues, wage and hour disputes, and disciplinary matters. She has experience analyzing civil service status and representing employers at arbitration hearings, the State Employment Relations Board, the Equal Employment Opportunity Commission and in state and federal courts.
Ami earned her B.A from Ohio University, magna cum laude. She then earned her law degree (J.D.) from Case Western Reserve University. Ami is admitted to practice law in the State of Ohio, the United States District Court for Northern Ohio, and the Sixth Circuit Court of Appeals. She is a member of the Cleveland Metropolitan Bar Association.
Please join us in welcoming Ami to Z&R!
Senate Bill 5 - FREE Seminar
Tuesday, April 12, 2011
10:00 am - Noon (lunch to follow)
Location:
Quicken Loans Arena
1 Center Court
Cleveland, Ohio 44115
Northeast Arcade Entrance
(Next to the Team Shop)
Description: Zashin & Rich Co., L.P.A. presents a free seminar regarding Senate Bill 5, including a comprehensive review of the new law, analysis of its effect on your collective bargaining issues, and strategies for using the new provisions to your best advantage, as well as the likely challenges posed by organized labor (referendum, lawsuits).
CLE credits are pending.
There is limited seating available for this free seminar. To make a reservation or receive more information, please contact Heather Hatfield at 216.696.4441.
Zashin & Rich Congratulates its
2011 SUPER LAWYERS
George S. Crisci
Jon M. Dileno
Andrew A. Zashin
Stephen S. Zashin
2011 RISING STARS
Patrick J. Hoban
Jason Rossiter
David R. Vance
Patrick M. Watts
- Before You Hit "Send" – Attorney-Client Privilege May Not Apply to Your Work Emails!
- National Labor Relations Act Preempts State Wrongful Discharge Claim
- You're (Not) Fired – Supreme Court Holds that Title VII's Retaliation Protection Extends to Third Parties
- Is it Easier to Prove Age Discrimination Under Ohio Law?
- Massachusetts' "Ban the Box" Law Became Effective November 4, 2010
- New York's Wage Theft Prevention Act Becomes Effective April 9, 2011
- Collective Bargaining Contracts in 2010 Had a Modest 1.6 Percent Average First-Year Wage Hike
- Z&R Shorts
Before You Hit "Send" – Attorney-Client Privilege May Not Apply to Your Work Emails!
By Jason Rossiter*A California court recently held that emails between an employee and his or her attorney are not privileged and confidential if sent or received via the employee's work email. Holmes v. Petrovich Development Co., LLC, 2011 Cal. App. LEXIS 33 (Cal. App. 3d Dist. Jan. 13, 2011).
Gina Holmes worked at Petrovich Development ("Petrovich") for two months as an administrative assistant. She quit after her boss made several comments regarding her pregnancy. Holmes alleged sexual harassment, retaliation, wrongful discharge in violation of public policy, violation of her right to privacy, and intentional infliction of emotional distress. The case, however, came to a quick close after Petrovich showed that Holmes only sued after being prodded by a lawyer. Petrovich did this by using emails Holmes sent and received from her attorney through her work email account.
In determining whether the emails sent from Holmes's work account were discoverable, the court examined whether the emails were confidential and whether any privilege applied. The court found that emails sent by Holmes to her attorney regarding possible legal action against her former employer did not constitute "confidential communication between client and lawyer" within the meaning of California's Evidence Code § 952. The court reasoned that the emails sent via her company computer "were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him."
The court concluded that the emails were not protected because Holmes used her work email account to send the emails to her attorney. Petrovich also told Holmes of the company's policy (via employee handbook) that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal email. The employee handbook further warned that the company would monitor its computers for compliance with this company policy and thus might "inspect all files and messages . . . at any time." Id. Additionally, Petrovich explicitly advised Holmes that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message." Id.
This ruling, while based on California Evidence Rules, could have a significant impact on the developing area of e-discovery and attorney-client privilege issues. This decision reflects the ever-changing area of attorney-client privilege in the era of emails and social media.
*Jason Rossiter practices in all areas of employment litigation and is licensed to practice law in Ohio, Pennsylvania, and California. For more information about the developing area of e-discovery and attorney-client privilege issues, please contact Zashin & Rich at 216.696.4441.
National Labor Relations Act Preempts State Wrongful Discharge Claim
By Patrick J. Hoban*
Timothy Lewis ("Lewis"), a former supervisor at Whirlpool's plant in Marion, Ohio, brought a claim for wrongful termination in violation of Ohio public policy. The United States District Court dismissed Lewis' complaint for lack of subject matter jurisdiction, holding that his claim was preempted by the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158. The United States Sixth Circuit Court of Appeals recently upheld the dismissal. See Lewis v. Whirlpool Corp., No. 09-4231, 2011 U.S. App. LEXIS 593 (6th Cir. Jan. 12, 2011).
Whirlpool employed Lewis from 1997 until 2007. In 2004, several Whirlpool employees began wearing pro-union shirts and meeting with union representatives. Whirlpool's Marion facility was not unionized at the time. Lewis contended that he was pressured to "build a case" against two pro-union employees. He claimed that Whirlpool told him if he did not terminate two of the employees that Whirlpool would retaliate against him. He further claimed that Whirlpool transferred him to a less-desired area of the facility after he refused to terminate the employees.
Whirlpool discharged Lewis on April 2, 2007, for improperly clocking in one employee using the time badge of a different employee. Lewis presented evidence that another employee actually committed the transgression, but to no avail.
After his termination, Lewis filed a charge with the National Labor Relations Board ("NLRB"). The NLRB conducted an investigation and found that Whirlpool did not violate the NLRA. Specifically, the NLRB stated the charge was "without merit since no clear evidence established that it terminated [Lewis'] employment . . . because [he] refused to commit unfair labor practices on its behalf during a previous union organizing campaign some three years earlier." The NLRB informed Lewis that if he did not voluntarily withdraw his charge, the NLRB would withdraw it for lack of merit.
The Sixth Circuit found that Lewis's claim was subject to the Garmon preemption. See San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). In Garmon, the United States Supreme Court held "[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the NLRA, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that . . . jurisdiction must yield to the NLRB." Id. at 244. The Court found that Lewis was essentially alleging an unfair labor practice under the NLRA and his remedy was exclusively with the NLRB. The Court further when on to state that Lewis could have brought (and did bring) a claim before the NLRB – and that the claim he asserted in his Complaint was identical to the claim he brought before the NLRB.
Lewis argued that the preemption should not apply because as a "supervisor" he was not covered by the NLRA, but the Court was not persuaded. The Court stated that a "supervisor does have a viable claim under the NLRA when terminated or otherwise disciplined for refusing to commit unfair labor practices." See Lewis, 2011 U.S. App. LEXIS 593 at *6-7. The Court found "[t]he sole dispositive inquiry for [his] claims is whether Lewis was terminated for the failure to commit unfair labor practices." Id. at *7. Holding that charge with the NLRB and his Court action were identical, the Court held that Lewis' wrongful termination claim was preempted and dismissed his suit. This case reinforces the wide jurisdiction of the NLRB over labor claims and reminds employers to be mindful of whether they are properly in the court system.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about the NLRA or labor law, please contact Pat at 216.696.4441 or pjh@zrlaw.com.
You're (Not) Fired – Supreme Court Holds that Title VII's Retaliation Protection Extends to Third Parties
By Stefanie L. Baker
Recently, the United States Supreme Court held in Thompson v. North American Stainless, LP, No. 09-291, 562 U.S. __ (2011) that a terminated employee may have a claim for retaliation under Title VII -- even if the employee never engaged in protected activity. An employee may have a Title VII claim if he alleges that his termination was in response to another employee's allegations of discrimination.
The petitioner in this case, Eric Thompson ("Thompson"), worked at North American Stainless ("North American") with his fiancée (now wife) Miriam Regalado ("Regalado"). Regalado filed a sex discrimination charge against North American. Three weeks after North American was notified of Regalado's complaint, Thompson was fired for "performance-based reasons."
Thompson filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination and retaliatory discharge under Title VII. The EEOC issued Thompson a right to sue letter, and he filed suit. The court granted summary judgment for North American, asserting that Title VII did not permit a retaliatory discharge claim by a plaintiff who did not engage in protected activity himself. The Sixth Circuit initially reversed. Later, sitting en banc, the Sixth Circuit affirmed the Trial Court's decision that Thompson was not protected under Title VII.
As it turns out the Sixth Circuit had it right the first time, as the United States Supreme Court reversed, stating that Thompson could bring his claims under Title VII because he fell within the "zone of interest" protected by Title VII. According to the Court, the case presented two questions: (1) was Thompson's termination unlawful, and (2) if so, did he have a cause of action.
The court quickly answered the first question in the affirmative, stating that a reasonable worker would be dissuaded from engaging in protected activity based upon the circumstances in this case. In answering the second question, the Court advanced the "zone of interest" test. An employee falls within the zone if: (1) he is an employee of the company; (2) he was not an accidental victim of retaliation; (3) he was injured as a means of harming the employee who engaged in protected activity; and (4) injuring the employee was the unlawful act by which the employer punished the other employee. The Court found that Thompson fell within the intended protected class under Title VII.
This case illustrates the willingness of the Court to extend protections to employees in retaliation cases. However, the Court refused to draw a bright-line rule as to where the "zone of interest" stops. From this case, it is clear that termination of a fiancé would create a third-party cause of action under Title VII. Time will tell how far beyond that the courts will extend the zone. Employers now must handle with care employees who engage in protected activity, and those closely associated with them.
Is it Easier to Prove Age Discrimination Under Ohio Law?
by Lois A. Gruhin
Plaintiffs in Ohio may now have an easier time proving age discrimination. The Tenth Appellate District recently held that Ohio's Age Discrimination Statute, Ohio Revised Code § 4112, does not require a plaintiff to prove that her age was the "but-for" cause for termination. See Thomas v. Columbia Sussex Corp., 2011-Ohio-17 (10th App. Dist. Jan. 6, 2011).
The Age Discrimination Employment Act of 1967 ("ADEA") states that an employer cannot discharge an employee "because of" her age. See 29 U.S.C. § 623(A)(1). In Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009), the Supreme Court held that the phrase "because of" or "by reason of" requires at least a showing of "but-for" causation. As a result, a plaintiff who filed suit under the federal ADEA must prove that but for her age, she would not have been terminated.
Plaintiff Charlotte Thomas sued her former employer, the Courtyard by Marriott Hotel ("Marriott"), after the hotel discharged her. Thomas brought her claim under Ohio age discrimination law and not the ADEA. Thomas was 67 at the time of her termination. Based on Gross, the employer requested a "but-for" jury instruction. The trial court refused and instructed the jury to consider whether the plaintiff's age was "a determining factor" in Marriott's decision to terminate her employment.
The Tenth Appellate District rejected the employer's argument that the jury instructions were improper. The court held that the phrase "a determining factor" did not alter the burden of proof set forth in Gross. The court further held that "a determining factor" was the equivalent causation required under the Gross decision. Additionally, the court stated that the jury instructions made clear that Thomas always retained the burden of proving discrimination based upon her age. The court was not required to use the exact phrase requested by the employer – especially because the Gross decision states that "but-for" can mean many things, including "based on," "by reason of," and "because of."
The Thomas decision likely will shape Ohio's age discrimination law and the jury instructions appropriate under Ohio Revised Code § 4112. Proving age was the "but-for" reason for termination is arguably a more difficult burden than that required by Thomas. As a result, plaintiffs in Ohio now may have an easier time proving age discrimination under Ohio law as compared to the ADEA. This case is now on appeal to the Ohio Supreme Court. We will continue to keep you advised of the age discrimination standard under Ohio law.
Massachusetts’ “Ban the Box” Law Became Effective November 4, 2010
By David R. Vance*
On November 4, 2010, Massachusetts’ “ban the box” law became effective. The law prohibits both private and public employers from asking questions about an applicant’s criminal history on written job applications. The law’s moniker comes from the commonly used check “yes” or “no” boxes used to respond to questions related to an employee’s criminal history. As of November 4, 2010, Massachusetts banned the use of such boxes or related questions. The law includes a few exceptions for certain jobs and smaller employers. In addition, national or international employers that hire individuals in Massachusetts may continue to ask about an applicant’s criminal history on their applications so long as they include an obvious disclaimer notifying Massachusetts applicants that they need not answer such questions.
If you are an employer operating in Massachusetts and have not done so already, you should change your application to comply with this new law.
*David R. Vance practices in all areas of employment law. For more information about hiring laws or other employment matters, please contact David at 216.696.4441 or drv@zrlaw.com.
New York’s Wage Theft Prevention Act Becomes Effective April 9, 2011
By Stephen S. Zashin*
On December 13, 2010, New York legislators passed the Wage Theft Prevention Act (“the Act”) which becomes effective April 9th, 2011. The Act imposes new regulations regarding the payment of wages and increases the penalties for wage payment violations.
New York law currently requires employers to inform new hires of their designated pay date, rate, and overtime rate (if applicable). The Act expands this regulation and requires employers to issue a notice with similar information upon hire and by February 1st of every year. This notice must include: dates of work covered, employer’s address and telephone number, the rate of pay and the manner in which it is paid (hourly, salary, commission), gross wages, net wages, deductions, and allowances against minimum wage. The notice for non-exempt employees also must include: the regular rate, overtime rate, and the number of regular and overtime hours worked. Additionally, employers must keep records for six years, which include written notices and accompanying written acknowledgements.
The Act also provides penalties for employers who violate the regulations permitting employees to recover damages through civil action. Employers can avoid these penalties by making complete and timely payment to employees. The Act affects virtually all New York employers. As a result, New York employers should review their payroll practices to ensure compliance with the Act.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law,is licensed to practice law in Ohio and New York. Stephen’s practice encompasses all areas of employment and labor law. For moreinformation about wage and hour laws or any other employment matter, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
Collective Bargaining Contracts in 2010 Had a Modest 1.6 Percent Average First-Year Wage Hike
By Ami J. Patel*
According to data from the Bureau of National Affairs, Inc. (“BNA”), first-year wages in collective bargaining agreements reviewed increased 1.6 percent. This is down from the prior year’s 2.3 percent increase and represents a national shift to smaller increases. BNA found decreases across the board in all sectors. For 2010, the median first-year wage increase was 1.7 percent as compared to 2009’s 2.5 percent, while the weighted average was 1.8 percent in 2010 and 2.7 percent in 2009.
In addition to smaller wage increases, retirement plans, insurance costs, and other employee benefits were major topics of negotiation during 2010. Employers must consider changes in these as well as other employee benefits when evaluating these figures. For example, factoring lump-sum payments into the wage calculations creates a 2010 first-year average wage increase of 1.9 percent, as compared with 2.6 percent in 2009. When excluding construction and state and local government agencies, the number jumps dramatically. Without these entities, the 2010 increase was 2.5 percent and the 2009 increase was 3.1 percent.
It is difficult to get a picture of collective bargaining by looking only at first-year wage increases, but the numbers are instructive and can be used during negotiations.
*Ami J. Patel practices in all areas of labor and employment law, with a focus on private and public sector labor law. For more information on BNA statistics or any other labor or employment issue, contact Ami at 216.696.4441 or ajp@zrlaw.com.
Z&R Shorts
Zashin & Rich Co., L.P.A. is pleased to announce the addition of Ami J. Patel to its Employment and Labor Group.
Ami’s practice focuses on private and public sector labor relations and employment issues.
Prior to joining Zashin & Rich Co., L.P.A., Ami worked as an Assistant Director of Law for the City of Cleveland. Ami's experience includes advising and defending management in FMLA, FLSA, ADA, ADEA, Title VII, and USERRA issues, wage and hour disputes, and disciplinary matters. She has experience analyzing civil service status and representing employers at arbitration hearings, the State Employment Relations Board, the Equal Employment Opportunity Commission and in state and federal courts.
Ami earned her B.A from Ohio University, magna cum laude. She then earned her law degree (J.D.) from Case Western Reserve University. Ami is admitted to practice law in the State of Ohio, the United States District Court for Northern Ohio, and the Sixth Circuit Court of Appeals. She is a member of the Cleveland Metropolitan Bar Association.
Please join us in welcoming Ami to Z&R!
Senate Bill 5 - FREE Seminar
Tuesday, April 12, 2011
10:00 am - Noon (lunch to follow)
Location:
Quicken Loans Arena
1 Center Court
Cleveland, Ohio 44115
Northeast Arcade Entrance
(Next to the Team Shop)
Description: Zashin & Rich Co., L.P.A. presents a free seminar regarding Senate Bill 5, including a comprehensive review of the new law, analysis of its effect on your collective bargaining issues, and strategies for using the new provisions to your best advantage, as well as the likely challenges posed by organized labor (referendum, lawsuits).
CLE credits are pending.
There is limited seating available for this free seminar. To make a reservation or receive more information, please contact Heather Hatfield at 216.696.4441.
Zashin & Rich Congratulates its
2011 SUPER LAWYERS
George S. Crisci
Jon M. Dileno
Andrew A. Zashin
Stephen S. Zashin
2011 RISING STARS
Patrick J. Hoban
Jason Rossiter
David R. Vance
Patrick M. Watts
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