Employment Law Quarterly: Election

Showing posts with label Election. Show all posts

Wednesday, November 2, 2016

EMPLOYMENT LAW QUARTERLY | Volume XVIII, Issue iii

Not So Fast (Food): Ohio Employer Goes Too Far With Supersized Influence Over His Employees’ Voting Decisions
Elections and the Workplace: Employee Time Off for Voting
EEOC Changes the Notice Employers are Required to Provide Employees Participating in an Employee Health Program
Religious Discrimination on the Horizon: EEOC Targets Enforcement
Z&R SHORTS

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

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

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

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

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

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

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

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

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

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

Elections and the Workplace: Employee Time Off for Voting

By Brad E. Bennett*

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

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

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

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

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

By Patrick J. Hoban*

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

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

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

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

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

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

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

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

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

Religious Discrimination on the Horizon: EEOC Targets Enforcement

By Drew C. Piersall*

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

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

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

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

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

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

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

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

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

Z&R SHORTS

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

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

Upcoming Speaking Engagements

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

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

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

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

Friday, June 12, 2015

BNA's Health Law Reporter™ | Challenge to NLRB Election Rule Fails; Employers Urged to Prepare New Game Plan

June 11, 2015 | Lawrence E. Dubé and Peyton M. Sturges | Download PDF
Reproduced with permission from BNA's Health Law Reporter, 24 HLR 735 (June 11, 2015).
Copyright 2015 by The Bureau of National Affairs, Inc. (800-372-1033)

In a decision with significant implications for healthcare employers, a federal trial court June 1 found NLRB amendments to its representation case rules are neither unlawful nor arbitrary (Associated Builders & Contractors of Tex., Inc. v. NLRB, 2015 BL 174029, W.D. Tex., No. 1:15-cv-26, 6/1/15).

The U.S. District Court for the Western District of Texas rejected a challenge by a coalition of Texas business groups to the National Labor Relations Board's rules, dubbed by employers as ''quickie'' or ''ambush'' election rules, saying there was no evidence backing claims that the NLRB adopted the rule changes to favor organized labor. The plaintiffs also failed to demonstrate that they were entitled to an injunction blocking enforcement of the rule changes, the court said.

Health-care labor attorneys have followed the case, and a second pending in the U.S. District Court for the District of Columbia, closely because they have broad implications for hospitals and other health-care provider employers. The attorneys have warned that the rules make providers more vulnerable to union organizing efforts because they significantly expedite the holding of elections following the filing of a petition and tie an employer's hands in a number of respects that limit its ability to respond to a union organizing effort (24 HLR 506, 4/23/15).

Although the plaintiffs immediately filed an appeal with the U.S. Court of Appeals for the Fifth Circuit June 5 (No. 15-50497), attorneys told Bloomberg BNA that health-care providers and other employers shouldn't assume that the rules will eventually be struck down. Instead, employers should prepare now for the very real possibility that these rules are here to stay, they said.

High Stakes in Health Care.

Patrick J. Hoban, with Zashin & Rich, Cleveland, said the stakes for healthcare and other employers are high because the rules "significantly reduce the time employers will have to mount their own campaign and counter the misinformation that the union will have been feeding the employees for months prior to filing the petition." Combined with the added administrative and procedural burdens placed on employers in the first week after a petition is filed, "it will be a whole new ball game," he told Bloomberg BNA.

In addition to implementing a union avoidance strategy including regular employee training, Hoban advised employers to review and update their employee handbooks, particularly provisions regarding solicitation, distribution, posting, conduct and electronic mail use to comply with NLRB standards.

"In short, employers who would avoid unionization should essentially run a continuous union-avoidance program," he said.

Hoban also pointed to data recently released by the NLRB that document what many had feared: that implementation of the rule will lead to more petitions and a significant reduction in the number of days between the filing of a petition and an election.

His firm's review of the data shows:

from April 14 to May 14, 2015, the NLRB received 280 election petition filings;
this number is up from 212 representation petitions filed from March 13 to April 13, 2015 before the rule took effect;
the monthly average of representation petition filings for 2012 and 2013 were 164 and 165 respectively;
for representation petitions filed since April 14, 2015, elections are being scheduled for a median of 23 days after the petition was filed;
in 2012 and 2013, elections were typically held 38 days after a petition was filed.

"For health-care organizations, pre-planning work can be staggering but it is critical to simply being able to play the game." —GREG ROBERTSON, HUNTON & WILLIAMS LLP, RICHMOND, VA.

The NLRA guarantees employers the right to oppose unionization and explain to their employees why unionization isn't in their best interests. But even though the trial court's Associated Builders & Contractors ruling found the rules weren't pro-union, "the data suggests otherwise," Hoban said.

Greg Robertson, with Hunton & Williams LLP, Richmond, Va., agreed that the decision, though not the final word, suggests health-care and other employers need to prepare for the new election rule's requirements and pace.

"While the ruling is a blow to the employer community's opposition to the new rules, it is not the end of the road," he said. He pointed to the plaintiff's filing of an appeal and the case pending in the federal court in Washington.

The court in the latter case, however, already denied a request for a temporary restraining order and expressed skepticism concerning the plaintiffs' claims at a May 15 hearing (24 HLR 654, 5/21/15).

"Ultimately, employers cannot count on the success of the legal challenges to the board's election rules in federal court," Robertson said. "Employers should remain proactive and prepared to run an effective campaign within a time frame that will likely become more constricted in the next few months," he added.

Robertson told Bloomberg BNA that the increased pace creates a real urgency from an employer standpoint and that a two week election process can be logistically challenging for employers who aren't adequately prepared. "For health-care organizations, pre-planning work can be staggering but it is critical to simply being able to play the game."

Even simple things can become a nightmare for health-care providers facing a short election cycle, Robertson said. He cited the employer's need to organize meetings with employees of one or more bargaining units in order to provide them with the employer's perspective but said it can be difficult if not impossible to assemble prospective bargaining unit members for such a meeting given patient care imperatives.

"Whether it is meetings with registered nurses, housekeeping, dieticians or some other prospective unit, health-care employers need to figure out in advance how they will organize these meetings without disrupting patient care," he said.

Election Rule Changes Now in Place.

In dismissing the case, the court rejected arguments of the Associated Builders and Contractors of Texas Inc. and other groups that claimed the board exceeded its power under the National Labor Relations Act by adopting rule changes that may limit parties from litigating some representation case issues until well after employees cast ballots on union representation.

"The New Rule grants significant deference to the Board and the Regional Directors in applying the very provisions Plaintiffs challenge," the court said. That fact made it very difficult for the groups to argue that the court should consider the NLRB rule changes invalid on the face of the regulation, the court added.

The board approved the rule changes (RIN 3142- AA08) in December 2014. The Senate and House disapproved the NLRB regulatory action (S.J. Res. 8), but President Barack Obama vetoed their Congressional Review Act resolution March 31, allowing the rule changes to go into effect April 14.

The rule changes require employers to respond to the filing with a statement of position before a pre-election hearing is opened by an NLRB regional office.

Under the amended rules, pre-election hearings are generally to be devoted only to issues necessary to determine whether an election should be conducted. Other issues, including the unit inclusion or eligibility of employees may be deferred to post-election proceedings if they affect a small percentage of a voting unit.

Lawsuit Challenged NLRB Rulemaking.

The Associated Builders filed the lawsuit Jan. 13, shortly after the U.S. Chamber of Commerce and allied groups filed their challenge in the U.S. District Court for the District of Columbia (Chamber of Commerce v. NLRB, D.D.C., No. 15-cv-9).

The Texas plaintiffs filed a motion for expedited summary judgment in their case, while the NLRB filed its own partial motion to dismiss and a motion for summary judgment. The court granted the NLRB motions and denied the business coalition's request for summary judgment.

The Texas groups argued that the rule improperly restricts employers' ability to litigate threshold issues before a union election, citing new requirements for preelection hearings and said the new rule is inconsistent with Section 9(c)(1) of the act, which provides for "an appropriate hearing upon due notice" before an election is held.

The court, however, found language in the new rule that grants great deference to the board and its regional directors in conducting pre-election hearings "significant."

Because the business groups were challenging the NLRB rule on its face, the court said, "even if the New Rule ordinarily limits the timing and scope of the preelection process, the deference granted a Regional Director to extend and expand those limits renders Plaintiffs' challenge unavailing."

The court said the plaintiffs had "not pointed to any binding authority which establishes the language of 29 U.S.C. § 159 prevents the Board from requiring the filing of a Statement of Position prior to a pre-election hearing, requires the Board to permit employers to introduce evidence concerning voter eligibility in a preelection hearing, or prevents the Board from delaying consideration of voter eligibility prior to an election."

Employee Privacy Argument Rejected.

The court also rejected the coalition's challenge to a new rule provision requiring an employer to release information, including the personal phone numbers and e-mail addresses, of employees in connection with an election proceeding.

The challengers said information could be misused by unions, but the court said the plaintiffs hadn't explained how employee privacy would be compromised under the new rule.

The court also wasn't persuaded by an argument that the rule change would result in accelerating elections and truncating the time for debate and discussion before a representation election.

The new rule gives regional directors responsibility for setting election dates and instructs them to consider "the desires of the parties, which may include their opportunity for meaningful speech about the election."

"[O]nce again," the court wrote, "in light of the fact that Plaintiffs raise a facial challenge to the New Rule, this discretion alone renders it virtually impossible for Plaintiffs to show the election period in every set of circumstances violates free speech."

The court further said the challengers failed to show that the NLRB rule changes were arbitrary or improper under the Administrative Procedure Act.

Judge Robert L. Pitman wrote the opinion.

Littler Mendelson PC represented the business groups. NLRB attorneys represented the board.

Tuesday, June 2, 2015

Unions Take Advantage of the NLRB’s “Quickie” Election Rules

By Sarah K. Ott*

The National Labor Relations Board (the “NLRB”) recently released data revealing a significant increase in union-filed representation petitions since the NLRB implemented its new “ambush” election rules on April 14, 2015 (“New Rules”). The New Rules completely changed the decades-old representation election process, saddled employers with added administrative obligations, and significantly limited an employer’s ability to argue bargaining unit issues prior to a representation election. The New Rules also significantly shortened the time after a petition is filed that an election may be held. Under the New Rules, an election may be held as soon as thirteen days after a union files a petition. Zashin & Rich described the anticipated changes in the New Rules in a recent Employment Law Quarterly Article titled “NLRB Pulls a Fast One: Final “Quickie” Election Rules for Union Elections Adopted” (Winter 2015 Employment Law Quarterly, Vol. XVII, Issue i). This “quickie election” process is expected to allow employers little time to mount an effective campaign to educate employees about the downsides of unionization. The NLRB’s new data suggests that unions are taking advantage of the benefits of the New Rules to employers’ detriment.

From March 13 to April 13, 2015 (the month prior to the New Rules’ effective date), unions filed 212 representation petitions. During the month immediately following the New Rules’ implementation, from April 14 to May 14, 2014, the NLRB received 280 election petition filings. This number is also well above the monthly average of representation petition filings for 2012 and 2013 which were 164 and 165 respectively. If some unions sat on petitions for representation until the New Rules came into effect in order to take advantage of the changes, there may be some leveling off in the number of election petition filings in the coming months. However, some effects of the New Rules are independent of the increase in election petition filings.

In addition to the significant increase in the number of petitions filed immediately following the New Rules implementation, the number of days between the filing of a petition and an election has plummeted. In 2012 and 2013, elections were typically held 38 days after a petition was filed. For representation petitions filed since April 14, 2015, elections are being scheduled for a median of 23 days after the petition was filed (a reduction in employer campaign time of 40%). Even if the number of election petition filings falls off, that would not affect the median number of days between the filing of a petition and an election. It appears clear that, as anticipated, the New Rules have drastically tilted the field against employers by reducing one of the most valuable resources available in combatting an organizing campaign: time.

The NLRB data confirms that the New Rules are a massive shift toward unions. The National Labor Relations Act grants employers the right to oppose unionization and explain to their employees why unionization is not in their best interests. However, the New Rules reduce the time employers have to make their arguments and educate their employees. While employer groups have challenged the New Rules in federal courts, this week, a federal judge in Texas rejected one such effort contending that the New Rules violate the National Labor Relations Act and the Administrative Procedure Act. While a case filed by the U.S. Chamber of Commerce remains alive in the D.C. Circuit, employers must be prepared for the likelihood that the New Rules are here to stay.

Employers who oppose unionization should consider regular communication about the perils of union representation with employees prior to an organizing drive. In addition, employers should consult with counsel about legal means to avoid unionization. Additionally, upon receiving notice that a union has filed a representation petition regarding their employees, employers should immediately seek counsel as the New Rules do not afford employers the luxury of time and the numbers show that unions have taken advantage of the New Rules.

Sarah K. Ott practices in all areas of labor and employment law. For more information about the NLRB’s new election rules, please contact: Sarah K. Ott | sko@zrlaw.com | 216.696.4441

Thursday, March 19, 2015

EMPLOYMENT LAW QUARTERLY | Winter 2015, Volume XVII, Issue i

Download PDF

Changes to Ohio’s Menacing, Stalking, and Protection Order Laws Help Employers Defend Against Threats of Workplace Violence
Train on Your Own Time: Firefighters Not Entitled to Overtime Pay for Hours Spent Training
Paid Sick Days Ahead for All? The Healthy Families Act Reappears… Again
What Goes Around: Another Cold and Flu Season Comes to a Close
NLRB Pulls a Fast One: Final “Quickie” Election Rules for Union Elections Adopted
Z&R SHORTS

Changes to Ohio’s Menacing, Stalking, and Protection Order Laws Help Employers Defend Against Threats of Workplace Violence

By David R. Vance*

Pursuant to recent legislation, Ohio employers now have an added defense to help prevent workplace violence: the ability to file for a protection order based upon an individual’s threats against the company or its employees. This change in the law provides employers an important tool to help protect employees and customers.

Ohio’s updated menacing, stalking, and protection order laws, which went into effect in September 2014, fixed a void that left employers in a compromised position when facing threats of workplace violence. Ohio’s prior menacing, aggravated menacing, and menacing by stalking laws prohibited individuals from knowingly causing another person (i.e., the victim) to believe that they would harm the victim (or their property, unborn child, or family member). The amended language now states that the victim’s belief that the offender will cause them harm may be based on the offender’s words or conduct directed at or identifying the victim’s employer.

In addition to the amendments to the menacing and stalking laws, the legislature added a provision (Ohio Revised Code § 2903.215) that allows employers of two or more alleged victims of a violation of Ohio’s menacing, aggravated menacing, or menacing by stalking laws to file a motion for a temporary protection order. In instances where a criminal proceeding against the offender is pending and the offender’s threat(s) or conduct identified the employer or was directed at the employer, the employer may file a motion for a temporary protection order in the already pending criminal proceeding. Additionally, in cases involving menacing by stalking, even when no criminal proceeding is pending, employers may file a petition for a civil protection order if the offender’s pattern of conduct identified the employer or was directed at the employer.

The changes to the laws arose in part out of concerns following an incident involving a Cincinnati-area company. After a former employee made threats to go on a shooting spree on the company’s premises, the former employee was charged with menacing. Eventually, the charge was dropped because the threats were directed generally at the company and not at specific employees. Under previous Ohio law, the company was without recourse to seek a protection order against the former employee.

The changes in the laws address the seriousness and reality of threats of workplace violence and provide needed legal recourse to employers faced with difficult and potentially deadly scenarios. Previously, employers would have to rely on the individuals targeted by a threat to seek a protection order against the offender. Now, employers have the ability to take legal action without relying on their employees, who may be hesitant or fearful of initiating legal action against an offender.

Employers should take all threats of workplace violence seriously and should seek guidance immediately upon learning of a threat. To help ensure the safety of their employees and customers, it is crucial that employers address threats in a timely manner and take necessary action, which may include seeking a protection order.

*David R. Vance, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information about workplace protection orders or labor and employment law, please contact David (drv@zrlaw.com) at 216.696.4441.

Train on Your Own Time: Firefighters Not Entitled to Overtime Pay for Hours Spent Training

By Jonathan J. Downes*

The U.S. Court of Appeals for the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, recently concluded a city did not have to pay firefighters for hours spent in paramedic training. Misewicz v. City of Memphis, Tenn., 771 F.3d 332 (6th Cir. 2014). The city required firefighters to obtain paramedic certification but did not compensate them for the training time. Rejecting the firefighters’ arguments that the time constituted “hours worked” under the Fair Labor Standards Act (“FLSA”), the court found this time fell under an FLSA exception.

Generally, the FLSA requires employers to pay their employees a minimum wage for all hours worked and pay overtime for hours worked in excess of forty hours in a work week. Time spent attending employer-sponsored training programs is typically considered compensable as hours worked. However, U.S. Department of Labor (“DOL”) regulations provide two exceptions. First, under Code of Federal Regulations Section 787.27, employers do not have to count “[a]ttendance at lectures, meetings, training programs and similar activities” as working time if: (1) attendance is outside the employee’s regular working hours; (2) attendance is in fact voluntary; (3) the training is not directly related to the employee’s job; and (4) the employee does not perform any productive work while at the training. In addition, pursuant to Code of Federal Regulations Section 553.226(b), training time for employees of state and local governments is not compensable if it occurs (1) outside regular working hours (2) at specialized or follow-up training (3) that is required for certification purposes of private and public sector employees whether by a particular governmental jurisdiction or by law.

In Misewicz, the case turned on whether the firefighters’ training time fell under the Section 553.226(b) exception. Specifically, the Sixth Circuit focused on whether the training was “required by law for certification.” Tennessee law does not require firefighters to be certified paramedics. However, Tennessee does require all employees performing paramedic-level care to obtain paramedic certification. Here, the city required all firefighters to obtain that paramedic certification within three years of employment.

The key issue was whether the exception’s “required by law for certification” requirement should focus on the employees’ job description or actual duties performed. The firefighters argued that the court should make its determination based on the employees’ job description which included duties that required state law certification. According to the firefighters, since the applicable job description was for fire recruits, state law did not require paramedic certification and the city should have to pay for their training time. The city argued the determination should hinge on whether state law required certification for the duties the employees actually performed. Once certified, firefighters spent one-half of their shift performing paramedic duties and responded to emergency medical services incidents much more frequently than fire suppression incidents.

Ultimately, the Misewicz Court ruled in the city’s favor: whether the training is “required by law for certification” hinges on whether the employer actually hired the employee to perform duties that require state certification, determined by whether the employer asks the employee to regularly perform those duties after training. Since the city hired the firefighters to perform both firefighting and paramedic duties, the exception applied. Therefore, the city did not violate the FLSA by failing to pay the firefighters for their paramedic training.

This is the first Sixth Circuit decision to interpret the FLSA “hours worked” Section 553.226(b) training exception. The Court rejected the argument that the city had to meet both “hours worked” training exceptions to escape liability under the FLSA. Therefore, employers do not have to compensate employees for training time if the employee training meets the Section 553.226(b) exception alone.

Public employers should review any compensation provided for training time. If employers pay for training necessary to obtain certification required by, for example, the Ohio Revised Code, the employer may not have to pay employees for that time. However, public employers must also remember to consider whether the employees utilize that certification in their day-to-day job. Employers should contact counsel with any questions about this “hours worked” training exception or the Misewicz decision.

*Jonathan J. Downes, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience advising public entities and employers. For more information about the Misewicz decision or the FLSA applied to public employers, please contact Jonathan (jjd@zrlaw.com) at 614.224.4411.

Paid Sick Days Ahead for All? The Healthy Families Act Reappears… Again

By Helena Oroz*

As the white fluffy stuff turns into hard, dirty, slowly melting stuff in cities and towns across our fair region, summer 2014 still seems like a distant memory . . . but one hot topic from our Summer ELQ remains hot as can be: paid sick leave.

Currently, three states – Connecticut, California, and Massachusetts – mandate paid sick leave, as well as a growing number of cities. Paid sick leave proponents got quite a boost from President Obama’s State of the Union Address on January 20, 2015, which was chock full of graphics, including one that showed thirty-two other countries are apparently more civilized than the United States when it comes to paid maternity leave. (http://www.whitehouse.gov/sotu at 17:50). The graphic was on a split-screen with the President during the following portion of his speech:

Today, we are the only advanced country on Earth that doesn’t guarantee paid sick leave or paid maternity leave to our workers. Forty-three million workers have no paid sick leave. Forty-three million. Think about that. And that forces too many parents to make the gut-wrenching choice between a paycheck and a sick kid at home. So I’ll be taking new action to help states adopt paid leave laws of their own. And since paid sick leave won where it was on the ballot last November, let’s put it to a vote right here in Washington. Send me a bill that gives every worker in America the opportunity to earn seven days of paid sick leave. It’s the right thing to do.

That bill, the Healthy Families Act, was previously introduced in the House of Representatives and the Senate in March 2013 but stalled in committee. In a joint statement issued January 14, 2015, Senator Patty Murray (D-WA) and Representative Rosa DeLauro (D-CT) promised to reintroduce the bill in the coming weeks. On February 12, 2015, they kept that promise. The bill (H.R. 932/S. 497) requires:

employers with 15 or more employees for each working day during 20 or more workweeks a year to permit each employee to earn at least one hour of paid sick time for every 30 hours worked, up to a maximum of 56 hours (seven days) of paid sick time in a calendar year.
small employers (those with fewer than 15 employees) who opt out of proving paid sick time to provide at least 56 hours of unpaid sick time in a calendar year to each employee.
employers to allow employees to use the time to: (1) meet their own medical needs; (2) care for the medical needs of certain family members (including a domestic partner or the domestic partner's parent or child); or (3) seek medical attention, assist a related person, take legal action, or engage in other specified activities relating to domestic violence, sexual assault, or stalking.

The Act would vest investigative and enforcement authority in the Secretary of Labor, but also authorize civil actions for damages by employees against employers who violate the Act.

As expected, proponents of the bill argue that it is critical to help working families and to fill gaps left by the Family and Medical Leave Act and other leave laws. Opponents focus on potentially untenable costs, especially to small businesses, and the possibility of employee abuse.

Considering the current composition of the U.S. Congress, it also seems likely that this one-size-fits-all proposition will stall once more, so why all the commotion? Perhaps more important than the outcome of the bill is the momentum built around this issue. Even more states and cities are enacting or considering their own paid leave laws, just as President Obama has called on them to do, including the following:

Tacoma, Washington City Council voted on January 27, 2015 to require businesses in the city to provide their employees with at least three days of paid sick leave beginning in 2016.
Philadelphia, Pennsylvania Mayor Michael Nutter signed mandatory paid sick leave into law on February 12, 2015, requiring employers with ten or more employees to permit each employee to earn at least one hour of paid sick leave for every 40 hours worked, effective in 90 days.
State-wide mandatory paid sick time legislation requiring all employers to provide seven paid sick days per year is currently pending in Oregon (introduced prior to the State of the Union address).

Stay tuned.

*Helena Oroz, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information about paid sick leave or labor and employment law, please contact Helena (hot@zrlaw.com) at 216.696.4441.

What Goes Around: Another Cold and Flu Season Comes to a Close

Patrick M. Watts*

Last year, as hospitals treated patients with the Ebola virus in the United States for the first time, many people worried about the spread of the dangerous virus. In particular, employers may have wondered how to accommodate employees affected by the virus or isolation periods intended to prevent spreading the illness. Should an individual be exposed to the Ebola virus, local and state public health authorities will likely monitor that person for signs of the virus and may recommend or require isolation during the virus’ 21-day incubation period. For more specific information, the Centers for Disease Control and Prevention (“CDC”) provides comprehensive information on preventing the spread of Ebola on its website. Thankfully, the Ebola virus has not spread in the United States. However, the annual cold and flu season remains a threat to employee health and employer productivity.

As cold and flu season comes to a close, employers can benefit from understanding employment laws addressing employee leaves due to illness. Cold and flu season can take a toll on employers, as illness affects employees’ attendance and productivity. Some reports tally the cost of lost productivity at up to seven billion dollars or 111 million missed work days. The flu also poses a serious threat to those with compromised immune systems, such as the elderly, those with cancer, and pregnant women. The contagious nature of the flu means that it can spread through offices quickly thanks to shared surfaces and human contact. Moreover, the CDC has stated that the flu vaccine appears to be less effective this year because of mutations to the current strain; so, even people who received the vaccine still may fall ill with the flu.

The two main employment-related laws implicated by cold and flu season are the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”). The ADA prohibits employers from discriminating against individuals in the workplace based on a disability or a perceived disability. The ADA applies when an employer makes disability-related inquiries of employees or requires medical examinations. A disability-related inquiry is one that is likely to elicit information about an individual’s disability (e.g., asking about a compromised immune system). The ADA prohibits disability-related inquiries and medical examinations unless they are job-related and consistent with business necessity. This occurs when an employer has a reasonable belief that an individual’s ability to perform essential job functions is impaired or that the individual is a direct threat to cause harm due to a medical condition. Except in the case of a severe flu pandemic (determined by the World Health Organization, Department of Health and Human Services, and CDC), neither of these exceptions apply in the case of common cold or flu, so employers should be careful about requiring medical examinations (including taking employee temperatures) and in wording inquiries regarding employee health. The ADA also prohibits employers from excluding individuals from the workplace based on a disability or perceived disability, so if an employer chooses to require ill employees to stay at home, it should apply the policy consistently.

By contrast, the FMLA allows up to 12 weeks of leave for serious medical conditions for employees who have worked at least 1,250 hours in a 12 month period for a covered employer. Typically, the FMLA does not cover colds or the flu unless it is severe or complications from the illness arise. The FMLA applies if the sick individual has been incapacitated for at least three full calendar days and either: (1) sees a doctor two or more times within 30 days; or (2) consults with a doctor and receives a regimen of continuing care (i.e., a prescription for medicine). Close family members of sick individuals also may qualify for FMLA leave to provide care for a parent, spouse, or child. Some employers may wish to prevent the spread of illness by accommodating sick employees with the option to work from home. However, employers ought to keep in mind that employees on FMLA leave cannot be required to work, even remotely, during leave.

While Ohio does not require employers to provide paid sick days to employees, some states mandate a certain number of paid sick days each year. Employers who wish to restrict or prevent the spread of a virus around the workplace have several options. Allowing employees who feel under the weather to work remotely may keep other employees from catching a contagious illness. Minimizing meetings and conferences also reduces the chances of employees coming into contact with individuals with the cold or flu. Finally, practicing simple hygiene habits, such as encouraging hand washing, covering one’s mouth when coughing or sneezing, and disinfecting frequently-used surfaces like telephones or door handles can help prevent the spread of germs. For more on the cold and flu, the Department of Health and Human Services, CDC, and World Health Organization all provide comprehensive information on the prevention and treatment of the cold and flu on their websites.

*Patrick M. Watts, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information about the Americans with Disabilities Act, the Family and Medical Leave Act or other questions related to employee leave, please contact Patrick at (pmw@zrlaw.com) or (216) 696-4441.

NLRB Pulls a Fast One: Final “Quickie” Election Rules for Union Elections Adopted

By George S. Crisci*

After a prior failed attempt beginning in 2011 to “modernize” its rules governing union elections, the National Labor Relations Board (“NLRB”) recently adopted its final rules, which will make it significantly more difficult for employers to run an effective campaign against unionization. The rules, which have been published in the Federal Register, go into effect on April 15, 2015.

These “quickie” election rules amend the NLRB’s representation case procedures and, in most cases, will reduce the time between the filing of an election petition and the election date. As a result, the employer’s timeframe to educate its employees on the realities of union representation is limited.

Many of the critical changes limit the circumstances under which pre-election hearings will be held. For example, disputes regarding individuals’ ineligibility to vote (e.g., due to supervisor status) generally will not be resolved before the election. This bypassing of important legal issues potentially creates a “lose-lose” situation for employers. Employers may face liability for treating employees as supervisors during a campaign if the NLRB decides later those employees are not supervisors under the National Labor Relations Act (“NLRA”). Similarly, employers may face liability if these employees participate in the campaign and the NLRB decides later that they are supervisors under the NLRA and that their involvement in the campaign constitutes “supervisor interference” with the election and grounds for holding a new election.

Important changes resulting from the new rules include the following:

Within two business days of receiving the petition for an election, employers must post a Notice of Petition for Election.
Pre-election hearings generally will be scheduled to be held eight days after service of the hearing notice.
Non-petitioning parties (e.g., employers or rival unions) must submit Statements of Positions one business day before the pre-election hearing identifying issues with the petition. Failure to identify an issue generally precludes litigation on the issue.
Along with the Statement of Position, employers must submit a preliminary list of prospective voters, identifying their job classifications, shifts, and work locations.
Issues for pre-election hearings generally will be limited to ones that are necessary to determine whether an election should be held.
Other issues, including voter eligibility (e.g., supervisor status), often will be resolved after the election.
In cases where a pre-election hearing is held, parties are no longer automatically entitled to file post-hearing briefs. Instead, the NLRB’s regional director has discretion to decide whether to allow post-hearing briefs.
Elections are no longer automatically delayed pending the outcome of a party’s request for review of the regional director’s decision following a pre-election hearing. Elections only will be stayed when ordered by the NLRB.
Employers must provide a final list of eligible voters (referred to as an “Excelsior List”), which now must include personal email addresses and phone numbers (if available to the employer) and must be submitted to the regional director within two days (formerly seven days) of the approval of an election agreement or the direction of an election.
Petitions for an election can now be filed electronically.

Since their adoption, the new election rules have become the subject of legal and congressional challenges. In two lawsuits, a number of pro-employer organizations have asked the U.S. District Courts for the District of Columbia and the Western District of Texas to strike down the new rules. Both lawsuits assert that the NLRB’s new rules violate the NLRA and the Administrative Procedure Act. The lawsuit pending before the U.S. District Court for the District of Columbia also asserts that the new rules violate employer free speech and due process rights under the U.S. Constitution. In addition to these legal challenges, the Senate and the House recently passed a “joint resolution of disapproval” of the new rules under the Congressional Review Act in an attempt to block the NLRB’s implementation of the rules. The resolution now heads to the President, who is expected to veto it. Zashin & Rich will provide periodic updates on the impact of these challenges on the enforceability of the NLRB’s new election rules as they proceed.

Overall, the NLRB’s new election rules change long-standing procedures governing the election process and reduce pre-election litigation (and the time associated with such litigation), while likely increasing post-election litigation. Employers subject to a union election should familiarize themselves with these changes to avoid making any procedural errors during the election process.

Employers must understand the impact that the new rules will have on their ability to run an effective campaign against unionization. Following the filing of a petition for an election, the time an employer has to lawfully educate employees on the perils of unionization is critical to countering the union’s efforts, which typically have been underway for months prior to an employer’s receipt of an NLRB petition. As the NLRB’s new election rules will greatly reduce the employer’s Post-Petition Campaign time, employers should develop strategies to avoid, anticipate, or counter unionization efforts before a union files a petition. In doing so, employers must be cautious and ensure that they are protecting their interests and not violating the NLRA. Employers no longer can afford to be surprised by the filing of an election petition because the very short timeline to conduct an election provides little opportunity to recover from such lack of knowledge. Once the NLRB’s quickie election rules take effect, non-unionized employers will have to implement an on-going, legitimate union-avoidance campaign to keep pace with union and NLRB efforts to unionize their workforce.

*George S. Crisci, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about the NLRB’s new election rules or labor and employment law, please contact George (gsc@zrlaw.com) at 216.696.4441.

Z&R SHORTS

Congratulations!

Zashin & Rich is pleased to announce that the Ohio State Bar Association recently certified Helena Oroz and David Vance as specialists in Labor and Employment Law.

Zashin & Rich is proud to announce that it has been named to the BTI Client Service A-Team 2015. Zashin & Rich received special recognition in “Best at Handles Problems” and “Best at Provides Value for the Dollar.” Additionally, BTI recognized Stephen Zashin, the head of the firm’s Labor and Employment Groups, as one of only 29 labor and employment “Client Service All-Star” attorneys in the country.

Best Lawyers®
Z&R is happy to announce the following Z&R Labor and Employment Group lawyers have been selected for inclusion in Best Lawyers in America 2015:

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 S. Zashin – Labor Law – Management

Upcoming Speaking Engagements

Wednesday, April 1, 2015
Drew C. Piersall presents "The Intersection of the Americans with Disabilities Act, the Family and Medical Leave Act and Workers' Compensation: Managing Disabilities“ at 10:00 a.m. at the Ohio County Home Association's annual conference to be held at the Salt Fork Lodge and Conference Center in Cambridge, Ohio.

Wednesday, April 8, 2015
Jonathan Downes presents “Social Media” at the JFSHRA - HR Bootcamp for Supervisors beginning at 9:30 a.m. at the Union County JFS Building.

Thursday, April 16, 2015
Jonathan J. Downes presents “Social Media Challenges for Law Enforcement and Public Employers” for the Miami Valley Risk Management Association in Mason, Ohio. See mvrma.com for details.

Monday, April 20, 2015
George Crisci presents “Determining Worker Eligibility for Unemployment Benefits” at the Unemployment Compensation from A to Z, which begins at 9:00 a.m. at the Doubletree Hotel in Independence, Ohio.
To register, go to http://www.nbi-sems.com.

Wednesday, May 6, 2015
Jonathan Downes and Drew Piersall present “Social Media – Employment Law Issues” and “The Intersection of the Americans with Disabilities Act, the Family and Medical Leave Act and Workers' Compensation: Managing Disabilities” at the 2015 OJFSDA Annual Training Conference at the Hyatt Regency Columbus on High Street.

Friday, May 8, 2015
Jonathan Downes conducts Legal Update at the Ohio Association of Public Safety Directors Annual Conference at 11:15 a.m. at the Reynoldsburg Police Department.

Monday, June 8, 2015
Patrick Watts presents at the Lake, Geauga, Ashtabula SHRM Annual Conference.