Showing posts with label Employee Handbook. Show all posts
Showing posts with label Employee Handbook. Show all posts

Tuesday, November 6, 2018

EMPLOYMENT LAW QUARTERLY | Volume XX, Issue iii

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Opioid Crisis: Drug Addiction and a Tight Labor Market

By Ami J. Patel*

Following years of consecutive job growth, the unemployment rate dropped to 3.7% in September. Despite the decreasing unemployment rate, labor market participation remains low. Men ages 25 to 54 currently have an 88.4% labor participation rate. According to a recent report, of those males not participating, one in five is out of the workforce because of drug addiction. Drug abuse coupled with the current economy has made the tight labor market even tighter. According to the Ohio Chamber of Commerce, one-half of Ohio businesses report suffering consequences from substance abuse.

Ohio ranks among the hardest hit states in the ongoing battle against opiate addiction. The increased use of opiates and other more-accepted drugs like marijuana combined with a tight labor market has left many employers reevaluating their hiring and drug procedures.

Ohio is taking direct action to help employers struggling with drug-use issues. Ohio’s Chamber of Commerce created an Opiate Toolkit (available here) to help employers to manage risk, prevent drug abuse, and respond to issues affecting the workplace. The toolkit contains several modules to educate employers about workplace drug policy, employee drug testing, and responding to employee drug use. The toolkit also contains an hour-long employee education course designed to help foster understanding of prescription drug abuse.

Employers understandably wish to avoid or reduce the impacts of drug abuse on their workplaces. Drug abuse affects employers by causing increased liability, productivity problems, and financial loss. In seeking to protect their interests, however, employers must ensure that their policies and practices do not conflict with the Americans with Disabilities Act (“ADA”) or related state laws.

The ADA protects qualified individuals with disabilities. The ADA’s definition of “qualified individual with a disability” specifically excludes employees and applicants who are currently engaging in the illegal use of drugs. However, the ADA does not exclude from its protection: (a) successfully rehabilitated individuals who no longer engage in the illegal use of drugs; (b) those who are currently participating in a rehabilitation program and no longer engage in the illegal use of drugs; and (c) those who are regarded by an employer, erroneously, as illegal drug users. Accordingly, employers who discriminate against these groups of individuals may face liability under the ADA and similar state laws.

For example, the Equal Employment Opportunity Commission (“EEOC”) recently filed suit against an employer that fired a recovering opioid addict who was on a methadone treatment program. According to the EEOC, on the employee’s first day of work, he took a drug test and proceeded to work the rest of the week. The next week, he learned that his test came back “positive” as a result of his prescribed methadone treatment. After the employee provided the testing laboratory with verifying information regarding his treatment, the laboratory cleared him to work. Nonetheless, the employer refused to return the employee to his position, even after he provided a letter from his doctor regarding his treatment. Based upon the employer’s refusal, the EEOC is seeking a permanent injunction barring the employer from engaging in any future disability discrimination and compensatory and punitive damages on behalf of the employee.

In the midst of the opioid crisis, employers continue to face the practical and legal impacts of drug addiction. In addition to its effect on the labor market, this crisis also has important legal implications on employers’ management of their workforces, including employees and applicants who are in recovery from opioid addiction. Employers should proceed cautiously in addressing these complicated issues and contact counsel with questions.

*Ami J. Patel, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information about workplace issues relating to opioids, the ADA, or any other employment-law questions, please contact Ami at ajp@zrlaw.com or 216.696.4441.

ICE Raids: Cold Shouldering Employees, Employers, and Local Law Enforcement

By Lauren M. Drabic*

The Trump administration has taken a hard stance against undocumented workers. The impact of this stance is far-reaching, especially in Ohio, which recently was called the “Ground Zero” for Immigration and Customs Enforcement (“ICE”) workplace raids. Two of the country’s largest raids occurred in Ohio over the summer and resulted in over 250 arrests.

The administration’s efforts regarding undocumented and foreign labor are two-pronged – arresting and deporting undocumented workers and prosecuting violating employers. Regarding the latter, the Department of Justice (“DOJ”) recently settled claims with a landscaping company for its alleged discriminatory practices in hiring foreign workers under the H-2B visa program. The DOJ claimed that the company favored foreign labor and improperly failed to make its job postings visible to those applying in the U.S. Under the settlement agreement, the company is required to pay over $100,000 in back pay and penalties, must engage in recruitment activities to attract U.S. workers, and is subject to three years of DOJ monitoring.

Employee Work Authorization

Most employers know they cannot hire workers without proper work authorization. Employers are responsible for ensuring completion of Form I-9, the Employment Eligibility Verification form used by U.S. Citizenship and Immigration Services (“USCIS”). This is true even with respect to employees who are citizens and, therefore, are automatically eligible for employment. Employers must retain each employee’s completed I-9 for three years after the date of hire or for one year after termination of employment, whichever occurs later. Employers should correct mistakes on an I-9 form to ensure they are compliant. However, employers may only edit sections two and three of the I-9 form. Only the employee may correct mistakes made in section one.

While citizenship is not a requirement for employment, employees must have the necessary work authorization. USCIS requires that the worker be a member of one of four classes: U.S. citizens; noncitizen nationals; lawful permanent residents; and aliens authorized to work. An alien is any foreign citizen living in the U.S. An employer also can petition for a nonimmigrant worker to receive work authorization on a temporary basis by completing an I-129 form. Upon approval of the I-129 form, the worker must apply for admission to the U.S.

Employers must ensure they are hiring foreign workers properly without discriminating based on protected class, such as citizenship, immigration status, or national origin. Treating individuals differently based on their membership in a protected class could violate the Immigration and Nationality Act or Title VII of the Civil Rights Act, among other laws. Similarly, according to USCIS, it may be discriminatory for employers to consider future expiration dates on visas and employment authorization documents.

An employer unable to fill open positions may seek a Foreign Labor Certification from the Department of Labor. The process can take months and involves several government agencies. Several different visas and programs exist to fill persistent employment vacancies. However, the employer must verify that the open position meets the criteria set by the Department of Labor.

Criminal and Civil Penalties

Under the Immigration and Nationality Act, it is illegal for any person or entity to knowingly hire an undocumented or illegal alien. “Knowing” includes constructive knowledge, i.e., knowledge which may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know that an alien is unauthorized. Simply not checking for authorization is not a valid means to avoid this requirement. Anyone who employs or contracts with an illegal alien without verifying his or her work authorization commits a misdemeanor offense.

ICE is authorized to conduct investigations to determine whether employers knowingly employed unauthorized aliens or failed to properly complete and retain I-9 forms for newly-hired individuals. The Director of ICE has noted plans to dramatically increase the number of I-9 audits and workplace raids ICE conducts.

Employers who violate these laws can face substantial fines and criminal prosecution. Those who knowingly hire and employ workers without work authorization may be penalized from $375 to $16,000 per violation, whereas substantive and technical violations, such as failing to produce the I-9 form, can range from $110 to $1,100 per violation.

While ICE and Customs and Border Patrol cannot commandeer local law enforcement, many local agencies opt to work with the federal agencies by sharing information, conducting joint investigations, and contracting to detain arrested aliens. Immigration officers and police must have a valid warrant or an employer’s consent to enter their facilities.

Employers must take care not only to follow the various federal and state laws as they pertain to hiring foreign labor, but also must not discriminate against U.S. citizens when seeking out foreign labor. Likewise, employers must not discriminate based upon an employee’s protected class, including citizenship, immigration status, or national origin. Employers should contact counsel if they have any questions or are unsure how to navigate the complex legal landscape relating to foreign workers.

*Lauren Drabic recently joined Z&R’s Cleveland office and practices in all areas of employment law. If you have questions regarding I-9 form compliance or any other employment-related matter, please contact Lauren at lmd@zrlaw.com or 216.696.4441.

By the Book: Ohio Courts Look to Employee Handbooks to Determine Terminated Employees’ Entitlement to Payment for Unused PTO

By Christopher D. Caspary*

Does an employer have to pay an employee’s accrued paid time off when it discharges the employee? As one Ohio court recently explained, it depends on the terms of the employer’s policies. See Richardson v. MYCAP, 7th Dist. Mahoning No. 17 MA 0021, 2018-Ohio-2776. In MYCAP, the court granted summary judgment in favor of a group of laid-off employees, awarding them payment for accrued paid time off (“PTO”). This is the latest decision in a string of Ohio cases that look to the terms of employer policies when determining an employee’s entitlement to a payout of accrued PTO at the time of the employee’s discharge.

The MYCAP Decision

In MCYAP, the employer provided its employees with handbooks informing them of its employment practices and policies. The handbook stated “at the end of employment with MYCAP, unused PTO balance hours will be paid” in accordance with a payment schedule set forth in the handbook. After the employer laid off a number of employees, it did not pay them their accrued, unused PTO in accordance with the terms of the handbook. The employees then filed suit seeking payment of their PTO.

Finding in favor of the employees, the MYCAP Court citied to existing Ohio case law, which states “[a]lthough employee handbooks and policy manuals are not in and of themselves contracts of employment, they may define the terms and conditions of an at-will employment relationship if the employer and employee manifest an intention to be bound by them.” Accordingly, the MYCAP Court held that the employees were entitled to the PTO payments under the plain language of the handbook and that it would be unjust for the employer to retain those payments.

What Does This Mean For Employers?

Ohio courts’ continuing deference to the terms of employee handbooks and employer policies is favorable for employers with carefully drafted policies. Effectively written handbooks and policies protect employers from liability. For example, one Ohio court found that the following policy language - “All unused [PTO] will be forfeited upon an employee’s resignation or termination” – was clear and unambiguous and did not require the employer to pay out the employee’s PTO. See Majecic v. Universal Dev. Mgt. Corp., 11th Dist. Trumbull No. 2010-T-0119, 2011-Ohio-3752, ¶ 10. Likewise, another Ohio court determined that the plaintiffs were not entitled to PTO, because the employer’s policy clearly precluded its employees from collecting any payment for PTO upon discharge. See Sexton v. Oak Ridge Treatment Ctr. Acquisition Corp., 167 Ohio App. 3d 593, 856 N.E.2d 280, 2006-Ohio-3852, ¶ 13 (4th Dist.).
Accordingly, employers should address the payment of PTO upon discharge directly in their employee handbooks and policy manuals. The following is a list of tips for employers to consider when drafting or revising employee handbooks and policies addressing PTO:

1. Do Not Remain Silent

It is better for an employer to have a written PTO policy than to remain silent. As some Ohio courts have held, an employee may be entitled to unused PTO if the employer’s policies do not state otherwise. The rationale behind this is that such payments are not merely gratuitous but are deferred payments of earned benefits. Therefore, it is better to have a defined policy than nothing addressing this topic.

2. Say What You Mean

In MYCAP and other recent Ohio cases, the courts adhered to the language set forth in the applicable handbooks and policies. Ohio employers are not required by law to provide their employees with PTO. However, if an employer decides to provide this benefit and wishes to restrict it in any way, then the employer should do so explicitly and clearly in its written policies.

3. Follow the Policy

The employer should abide by its policies. Failure to do so may suggest that the employer’s actual practice is different than what it has set forth in writing, or that it may be treating some employees more favorably than others.

Employee handbooks and employer policies are important tools for employers, and the terms set forth therein have legal implications. Employers should consult with counsel to assess whether their handbooks and policies clearly state their intentions and to ensure they are taking the proper steps to abide by them.

*Christopher Caspary works in Z&R’s Cleveland office and practices in all areas of employment law. For more information about developing employee handbooks and policies or any other employment-related matter, please contact Chris at cdc@zrlaw.com or 216.696.4441.

Rolled up and Rolled Out: An Update on Ohio’s Medical Marijuana Law

By Patrick M. Watts*

Although marijuana remains a Schedule I controlled substance under federal law, numerous states have legalized the use of marijuana for medical and, in eight states and the District of Columbia, recreational purposes. As Z&R previously reported, Ohio (puff, puff) passed its medical marijuana law in 2016 and set the basic framework for Ohio’s Medical Marijuana Control Program (“MMCP”). Following delays in the MMCP’s implementation process, approved cultivators have now begun growing their first crop of state-sanctioned marijuana. Based upon growing and production timeframes, estimates suggest that patients may purchase medical marijuana in Ohio as early as the end of this year.

As the smoke clears, many Ohio employers are rightfully concerned and confused about the MMCP and its potential implications for their businesses and workforces. In an apparent attempt to put employers at ease, Ohio’s General Assembly included a number of pro-employer provisions in the MMCP. Specifically, the MMCP (which is codified at Ohio Revised Code Chapter 3796) provides that:
  • Employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;
  • Employers are not prohibited from refusing to hire, discharging, disciplining, etc., a person because of that person’s use, possession, or distribution of medical marijuana;
  • Employers are not prohibited from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;
  • The MMCP does not interfere with any federal restrictions on employment, e.g., Department of Transportation regulations; and
  • The MMCP does not permit a person to pursue a lawsuit against an employer “for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana.”

See Ohio Revised Code 3796.28(a)(1)-(5). Furthermore, Ohio’s unemployment compensation law considers a person discharged for using marijuana “in violation of an employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana” as discharged for “just cause.” See Ohio Revised Code 3796.28(b).

Nevertheless, even with these pro-employer provisions, Ohio employers still may face the prospect of litigation arising out of employees’ use of medical marijuana. For example, it is possible that employees may attempt to bring a disability discrimination claim under Ohio’s anti-discrimination law (Ohio Revised Code Chapter 4112), which the MMCP does not expressly reference, claiming that their rights under Ohio’s anti-discrimination law are unaffected by, and independent of, the MMCP’s pro-employer provisions.

Given the nascency of the MMCP, there currently are no court decisions addressing Ohio’s medical marijuana law in the employment context. However, courts in other states have addressed employees’ marijuana-related claims. It is important to note that medical marijuana laws vary by state and, depending on the state, may provide greater protection to employees than Ohio’s law. Still, these cases provide some insight as to how courts are addressing the issue of medical marijuana in the employment context. For example, as Z&R reported last year, the Massachusetts Supreme Judicial Court reversed the dismissal of an employee’s claim and held the employee could pursue a disability discrimination claim under Massachusetts law after her employer discharged her for testing positive for medical marijuana. See Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (Mass. Jul. 17, 2017).

Similarly, in September, a Federal court in Connecticut addressed a case where a nursing home rescinded a job offer to an applicant who tested positive for marijuana during a pre-employment drug screen. See Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr., No. 3:16-cv-01938, 2018 U.S. Dist. LEXIS 150453 (D. Conn. Sept. 5, 2018). The applicant accepted an offer for a position, which was conditioned upon her completion of a drug screen. Prior to the drug screening, the applicant explained that she used medical marijuana to treat her post-traumatic stress disorder. Upon obtaining the drug screen results, the nursing home decided not to hire the applicant. The applicant filed a complaint, alleging a violation of Connecticut’s medical marijuana law, which provides, “[n]o employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.” In addressing the applicant’s claims, the court held she was entitled to judgment, as a matter of law, on her claim of employment discrimination under the state medical marijuana law. Notably, the court rejected the employer’s arguments that it was required by federal laws (i.e., the Drug Free Workplace Act and the False Claims Act) to rescind the applicant’s job offer.

In sum, the legal landscape regarding medical marijuana in the employment context is evolving. Ohio’s medical marijuana law provides a number of important protections for employers regarding employment-related actions based on employees’ use, possession, or distribution of medical marijuana. With medical marijuana available in potentially as little as a couple of months, employers need to get prepared. This includes establishing policies that expressly address the employer’s stance on medical marijuana and determining how the employer intends to handle medical marijuana use in all aspects of its business, including hiring, drug testing, and discharge. Employers should contact counsel with any questions relating to the MMCP or its impact on their practices and workforces.

*Patrick M. Watts, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience advising employers regarding medical marijuana and related issues. For more information about Ohio’s medical marijuana law or any other employment-related matters, please contact Patrick at pmw@zrlaw.com or 216.696.4441.

Z&R SHORTS

Please join Z&R in welcoming Lauren Drabic to its Employment and Labor Groups


Lauren Drabic's practice encompasses all areas of labor and employment law. Prior to joining Zashin & Rich, Lauren practiced employment law in Washington, D.C., where she litigated cases in federal court and before administrative agencies that arose under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Whistleblower Protection Act, and other federal employment statutes. Lauren graduated from Allegheny College and received her law degree cum laude from the American University Washington College of Law. While at American, she served on the senior editorial board of the American University Law Review.

Upcoming Speaking Engagements


November 14, 2018
Brad E. Bennett presents “Epic Fails! Top Supervisor Errors in the Workplace” at the Ohio Recorders’ Association Winter Conference to be held at the Polaris Hilton in Columbus, Ohio.

December 4, 2018
George S. Crisci presents “Murphy Oil/Epic Systems” at the Ohio State Bar Association’s Back to the Future? NLRB Update seminar in Columbus, Ohio.

December 10, 2018
George S. Crisci presents “NLRB Rules and Decisions” at the National Business Institute’s Ohio Employment Law seminar in Independence, Ohio.

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Monday, February 12, 2018

EMPLOYMENT LAW QUARTERLY | Winter 2018, Volume XX, Issue i

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Out with the Old, in with the New: A Look Forward and Back to Start the New Year

By Stephen S. Zashin*

Heading into 2018, Zashin & Rich has created a checklist for employers:

Policy Review:
☐ Review discrimination, harassment and retaliation policies;
☐ Review policies concerning Family and Medical Leave and disability accommodation issues;
☐ Review policies concerning pay for time worked (including reviews of pre and post shift work and meal and rest breaks);
☐ Review social media policies to ensure that they comply with recent guidance from the National Labor Relations Board (even if the company is a non-union employer);
☐ Review wage deduction policies to ensure that only proper deductions are made from employee pay; and,
☐ Update confidentiality, non-solicitation and non-compete agreements to take advantage of the Defend Trade Secrets Act.

Applications:
☐ Revise employment applications to comport with "ban the box" rules governing questions about convictions; and,
☐ Review employment application procedures to ensure that all third party background checks comply with the Fair Credit Reporting Act.

Training:
☐ Train employees, managers and supervisors about discrimination, harassment and retaliation; and,
☐ Train managers and supervisors about FMLA and ADA leaves of absences and accommodations.

Audit:
☐ Ensure that employees are properly classified as exempt or non-exempt under the Fair Labor Standards Act;
☐ Review pay practices to ensure that minorities are not statistically disadvantaged in compensation;
☐ Review workforce composition information to ensure that minorities are not statistically disadvantaged in management;
☐ Analyze health care enrollment to ensure that only eligible participants are on the company's medical plan; and,
☐ Review independent contractor classifications to ensure that those working under such arrangements are actually independent contractors.

Be sure to follow Zashin & Rich's Employment Law Quarterly to stay updated on labor and employment law developments in 2018.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, is the founder of the firm's Labor and Employment Groups and has extensive experience with all aspects of labor and employment law. If you have questions regarding the above checklist or any other labor or employment issues, please contact Stephen at ssz@zrlaw.com or (216) 696-4441.



How the Tables Have Turned: NLRB Shifts Course Under Trump Administration

By Patrick J. Hoban*

During the Obama administration, the National Labor Relations Board ("NLRB") was a thorn in the side of many employers - overturning long-standing precedent and broadly construing the National Labor Relations Act ("NLRA") to protect employee activities and prohibit employer enforcement of commonplace employment policies. Now, under the Trump administration, the NLRB has shifted in a more employer-friendly direction. The Republican-appointed NLRB majority recently issued two decisions that dramatically altered the framework for analyzing work rules and joint employer status. Also, the NLRB's General Counsel issued a memorandum to NLRB regional directors highlighting priorities going forward, including a focus on legal issues raised "in cases of the last eight years that overruled precedent."

A New Standard for Evaluating Work Rules


In recent years, many employers were frustrated and confounded by a seemingly endless string of NLRB decisions rendering work rules unlawful, including those commonly set forth in employee handbooks. In analyzing these rules, the NLRB used a standard (referred to as the Lutheran Heritage standard) that asked, in part, whether an employee would "reasonably construe" the work rule to prohibit NLRA-protected activity. The NLRB's application of this standard led to inconsistent and arbitrary results. For example, the NLRB found rules prohibiting "loud, abusive, or foul language" and an "inability or unwillingness to work harmoniously" to be unlawful, yet approved of rules prohibiting "abusive or threatening language" and "conduct that does not support the . . . [employer's] goals and objectives." The NLRB's application of the Lutheran Heritage standard "produced rampant confusion for employers" and allowed the NLRB to find neutral and innocuous work rules unlawful, without giving due consideration to legitimate business justifications underlying the rules.

Fortunately for employers, in December 2017, the NLRB overturned the Lutheran Heritage standard and adopted a new framework for analyzing work rules. See The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). Under this new standard, the NLRB evaluates: (1) the nature and extent of the work rule's potential impact on employees' protected rights under the NLRA; and (2) the legitimate justifications associated with the work rule. In Boeing, the NLRB applied this new framework to a "no-camera rule" implemented by Boeing that restricted employee use of cell phones and other camera-enabled devices on company property. Initially, an Administrative Law Judge ("ALJ") found Boeing's no-camera rule unlawful under the Lutheran Heritage standard. Reversing the ALJ, the NLRB emphasized the "fundamental problems with the . . . application of Lutheran Heritage when evaluating the maintenance of work rules, policies and employee handbook provisions." These problems included the NLRB's failure to take into consideration legitimate justifications associated with the work rules, the false premise that employees are better served by no work rules as opposed to ones that may have some overlap with NLRA coverage, and the failure of the standard to allow the NLRB to differentiate among industries and work settings.

Applying its new standard to Boeing's no-camera rule, the NLRB held that any potential impact on Boeing's employees' exercise of protected rights under the NLRA was outweighed by the substantial and important justifications underlying the rule. These justifications included Boeing's need to maintain its security protocols, protect against the disclosure of sensitive and proprietary information (including employee personal information), and (as an aircraft manufacturer and military defense contractor) limit the risk of becoming the target of a terrorist attack.

A Return to a Prior Standard for Evaluating Joint Employer Status


In another December 2017 decision, the NLRB announced it was returning to its prior standard for evaluating whether two entities should be deemed a joint employer, and therefore, subjected to joint and several liability under the NLRA. See Hy-Brand Industrial Contractors, 365 NLRB No. 156 (Dec. 14, 2017). In 2015, the NLRB held that two entities are joint employers based on the mere existence of reserved joint control (i.e., a contractual right to exercise control), or based on "indirect" or "limited and routine" control. The NLRB could have deemed two entities joint employers even if they never actually exercised joint control over essential terms and conditions of an employee's employment. Under this broad standard, a parent company or even a client could face liability on legal obligations under the NLRA, even without exercising any control over a subsidiary's or vendor's employees.

In Hy-Brand, the NLRB rejected this standard in favor of the pre-existing joint employer test, under which "the essential element in . . . [the] analysis is whether a putative joint employer's control over employment matters is direct and immediate." In conducting this analysis, the NLRB will now focus, as it did in the past, on "whether an alleged joint employer 'meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction.'" Accordingly, the mere existence of reserved control, which has not been exercised, or indirect or limited and routine control is no longer sufficient to give rise to joint employer status and joint and several liability under the NLRA.

The NLRB's General Counsel's Memorandum


Also in December 2017, the NLRB's newly-appointed General Counsel issued a memorandum to the leadership of the NLRB's regional offices, which set forth guidelines and priorities going forward. These priorities include special attention to "[s]ignificant legal issues includ[ing] cases over the last eight years that overruled precedent and involved one or more dissents." The General Counsel enumerated a number of areas of focus, including employee access to employer email to engage in union-related and other protected activity under the NLRA, off-duty employee access to employer property, work rules, and joint employer status. The NLRB has already issued decisions regarding work rules and the joint employer standard. Additional decisions from the NLRB are likely forthcoming that further revise Obama-era policies.

As demonstrated by the Boeing and Hy-Brand cases, which were decided shortly after the General Counsel issued the memorandum, a dramatic shift appears to be underway at the NLRB. Zashin & Rich will continue to report on developments from the NLRB.

*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, regularly practices before the NLRB and counsels employers regarding work rules and protected activity. If you have questions about recent developments at the NLRB, please contact Pat at pjh@zrlaw.com or (216) 696-4441



Father Trucker: The Sixth Circuit Addresses a Truck Driver’s Discrimination Claim Premised Upon His Status as a Single Parent

By Jessi L. Ziska*

Most employers are familiar with prohibitions on discrimination based on an employee's race, color, religion, sex, national origin, age, and disability. As demonstrated in a recent decision by the U.S. Court of Appeals for the Sixth Circuit, however, employers also should beware of employment decisions based on other factors, including marital and familial status. See Reedy v. Rich Transp., LLC, No. 17-1085, 2017 U.S. App. LEXIS 22031 (6th Cir. Nov. 1, 2017). Although the Sixth Circuit ultimately found in favor of the employer, the Reedy decision serves as a warning to employers about actions and statements about an employee's family that could give rise to a lawsuit.

In Reedy, the plaintiff, who was married but separated from his wife, had custody of their five children. During one of his shifts as a truck driver, the plaintiff left his truck at a truck stop and went home early due to a snowstorm. When his supervisor ordered him to retrieve the truck the following day, the plaintiff refused because he could not find a babysitter. His supervisor responded: "I don't give a f*** about your kids. Get your f***ing ass in that truck because that's where we need to have you." Subsequently, another one of the plaintiff's supervisors told him that, if he had known the plaintiff was a single parent, he would not have hired him. A few days later, the employer terminated the plaintiff, citing issues with his performance including his refusal to retrieve the truck as ordered.

The plaintiff then filed a lawsuit alleging his employer discriminated against him based on his status as a single parent in violation of Michigan's antidiscrimination law, which specifically prohibits discrimination based on "marital status." After the district court dismissed his discrimination claim, the plaintiff appealed to the Sixth Circuit. On appeal, the Sixth Circuit assumed the plaintiff qualified for protected status, noting that the Michigan Supreme Court has never addressed whether the State's antidiscrimination law "covers single or separated parents (or the perception of single with children while still married)."

In support of his discrimination claim, the plaintiff relied solely on his supervisors' statements. Affirming the dismissal of his claim, the Sixth Circuit held that "[t]otal reliance on statements about [the plaintiff's] status as a single parent is not sufficient evidence of motivation to terminate his employment." The court noted that the supervisors' statements, although close in time to the plaintiff's termination, were not directly linked to the decision to terminate his employment. Furthermore, the plaintiff failed to present any additional evidence to call into question the legitimacy of the employer's stated reasons for his termination, including his failure to retrieve the truck as directed.

The Sixth Circuit also found that the plaintiff failed to present evidence that the employer treated him differently on the basis of his marital status. Specifically, the plaintiff was unable to point to anyone outside his protected class who enjoyed better treatment from the employer.

While the Sixth Circuit affirmed the dismissal of the plaintiff's discrimination claim, one of the judges felt his claim should have survived. In a dissenting opinion, Judge White stated that the supervisors' troubling statements "certainly . . . [gave] rise to an inference of unlawful discrimination."

Unlike Michigan's antidiscrimination law, Title VII of the Civil Rights Act of 1964 and Ohio's antidiscrimination law do not specifically prohibit discrimination based upon "marital status" in the employment context. Nevertheless, employers in Ohio and elsewhere still should be cautious of making employment decisions based upon employee or applicant marital or familial status as local ordinances may prohibit such conduct. Also, even in the absence of a law specifically prohibiting these types of discrimination, employees may be able to bring suit against their employers for sex-based discrimination arising out of comments or actions tied to their marital or familial status. For example, an employer could give rise to a discrimination claim by asking only female job applicants whether they are married or have young children.

In sum, employees' familial obligations can present challenges for employees and their employers alike. Although the Sixth Circuit in Reedy found the comments insufficient to prove discrimination, employers should be cautious of actions and comments based on or relating to their employees' marital or familial status.

*Jessi L. Ziska recently joined Zashin & Rich in their Cleveland office and practices in all areas of labor and employment law. If you have questions regarding the Reedy decision, please contact Jessi at jlz@zrlaw.com or (216) 696-4441.



EMS Captains and Lieutenants Are Supervisors, Not “Public Employees,” Under Ohio Collective Bargaining Law

By George S. Crisci*

In a recent directive, the State Employment Relations Board ("SERB") provided further clarification on the types of job responsibilities that will exempt employees from collective bargaining under Ohio law. Specifically, SERB held that EMS captains and lieutenants qualified under the "supervisor" exemption of Ohio's collective bargaining law. See In re Athens County EMS Association, Case No. 2017-REP-04-0053 (Nov. 17, 2017). This latest directive follows closely on the heels of another SERB decision (which Zashin & Rich reported on here) holding that captains in a fire department fell within the "confidential" and "management" employee exemptions.

Ohio Revised Code Section 4117.01 sets forth a number of exclusions from the definition of "public employee" under Ohio's collective bargaining law. If a public employee falls within one of these exclusions, then the employee is not entitled to collective bargaining rights. One such exclusion applies to "supervisors," which are defined, in part, as individuals who have the authority to "to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other public employees; to responsibly direct them; to adjust their grievances; or to effectively recommend such action, if the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment." R.C. 4117.01(F).

In April 2017, a union filed a request to represent, for collective bargaining purposes, all EMTs, paramedics, lieutenants, and captains in the Athens County EMS Department. After the County Commissioners objected to this request, SERB directed the matter to its Office of General Counsel for an inquiry. SERB asked the General Counsel to determine whether the EMS captains and lieutenants were exempt from the definition of "public employees" under Ohio Revised Code Chapter 4117. On November 7, 2017, SERB's General Counsel issued findings of fact and conclusions of law, finding the captains and lieutenants qualified under the "supervisor" exemption. Subsequently, SERB adopted the General Counsel's conclusions, granted the Athens County Commissioners' objection, and denied the union's request to represent the EMS captains and lieutenants.

The Athens County EMS Department was comprised of the chief, assistant chief, five captains, two lieutenants, and 38 EMT/paramedics. Among various other duties, the captains and lieutenants were involved in hiring employees, including participating in candidate interviews and making hiring recommendations. Likewise, both the captains and lieutenants disciplined employees, including issuing verbal and written reprimands without prior approval, and developed and conducted annual performance evaluations.

In analyzing these responsibilities under R.C. 4117.01, SERB noted the captains and lieutenants did perform "duties that are routine and ministerial in nature: however, there are duties that require judgment to initiate action and utilize discretion without further review." Pointing specifically to the captains' and lieutenants' responsibilities with respect to employee performance evaluations and employee discipline through written and verbal reprimands, SERB found that the captains and lieutenants met the "supervisor" criteria as set forth in R.C. 4117.01(F). Therefore, they were exempted from the definition of "public employee" and were not entitled to collective bargaining rights under Ohio law.

As the operations of safety forces continue to develop, management must consider the structural application of their organizations. Petitions to amend existing bargaining units can be filed at SERB. Careful application of the standards and the procedural steps must be taken. These cases are fact specific, and public employers looking to amend a bargaining unit should contact counsel to evaluate the merits of doing so.

*George S. Crisci, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience representing employers before SERB. If you have questions regarding this SERB decision or other collective bargaining issues, contact George at gsc@zrlaw.com or (216) 696-4441.



Z&R SHORTS


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


Jessi L. Ziska earned her law degree, as well as certificates in both Litigation and Alternative Dispute Resolution and Health Law, from The University of Akron School of Law. Jessi was a member of the Moot Court Honor Society ("MCHS") and Trial Team. As a member of the MCHS, Jessi competed in the 2016 American Bar Association National Appellate Advocacy Competition in Boston, Massachusetts. Jessi was later elected to serve as the President of the MCHS. After her performance in Akron Law's Summer Trial Academy, Jessi was selected to join Akron Law's nationally-known Trial Team, which gave her the opportunity to compete in the 2016 Ohio Attorney General's Public Service Mock Trial Competition in Columbus. As part of Akron Law's Health Law program, Jessi completed an externship in the health law practice group of a well-established, Northeast Ohio firm. During her externship, she reviewed and revised employment agreements between physicians and hospitals, formed various corporate and non-profit entities, and ensured corporate compliance with federal and state laws.

Christopher D. Caspary's practice focuses on employment litigation and corporate employment counseling. Chris previously practiced in the areas of civil litigation and insurance defense, and appeared in courts throughout Ohio and in federal court. Chris's experience also includes taking and defending depositions, drafting pretrial motions and pleadings, and advising clients on complex legal issues. Following law school, Chris clerked for the Honorable Nancy A. Fuerst in the Cuyahoga County Court of Common Pleas, where he drafted opinions and rulings, conducted certain hearings and conferences, and provided legal recommendations to the Judge. While in law school, Chris specialized in labor and employment law, worked in the Employment Law Clinic, and externed with the Federal Trade Commission. Chris is the Vice-Chair and incoming Chair of the Cleveland Metropolitan Bar Association's Litigation Section. Chris is a member of the Cleveland Metropolitan Bar Association's Bar Admissions Committee and is a member of the William K. Thomas Inn of Court. Chris was also a delegate to the 8th Judicial District Conference in May 2015 and October 2016.

Upcoming Speaking Engagements


March 2, 2018
Jonathan J. Downes and Drew C. Piersall present "Beyond Sexual Harassment and Other Claims of Discrimination - Legal and Practical Realities" at the Ohio Municipal Attorneys Association's 2018 Spring Municipal Civil and Criminal Law Seminar at the Westin in Columbus, Ohio.

March 2, 2018
Stephen S. Zashin presents "Hearing Employment Law Cases" at The Supreme Court of Ohio Judicial College Webinar.

March 14, 2018
Patrick M. Watts presents "Conducting Harassment Investigations" at the Greater Ashtabula Chamber of Commerce in Ashtabula, Ohio.

March 19, 2018
Jonathan J. Downes presents "Legal Minefields to Avoid" at the Ohio Association of Chiefs of Police - New Chiefs' Workshop at the Crowne Plaza in Dublin, Ohio.
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Tuesday, June 27, 2017

EMPLOYMENT LAW QUARTERLY | Volume XIX, Issue i

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Akron United: The Rubber City Passes New Law to Combat Discrimination

By Emilie M. Carver*

On March 20, 2017, the City of Akron joined a growing list of Ohio cities with non-discrimination ordinances when Mayor Dan Horrigan signed Ordinance Number 82-2017 into law. The new law protects Akron residents and visitors against discrimination in employment, housing, and public accommodations, and creates the Akron Civil Rights Commission to hear complaints and enforce the new law. The Mayor and City Council “wish to affirm the dignity and worth of all people and provide certainty to the residents and visitors of Akron that unlawful discrimination will not be tolerated in this City.”

The new ordinance is structured similarly to Ohio’s statewide anti-discrimination law, but includes protected classes not covered by state (or federal) law. Akron’s ordinance, like Ohio law, prohibits discrimination based on a person’s age, race, color, religion, national origin, ancestry, disability, sex, and military status, but adds protections for creed, marital status, familial status, gender identity or expression, and sexual orientation. Akron’s law follows the trend set by Cincinnati, Cleveland, Columbus, Dayton, Toledo, and Youngstown, among other Ohio cities.

With respect to employment discrimination, Akron’s law applies to employers that regularly employ four or more individuals. Similar to Ohio law, Akron’s law also applies to “any person acting on behalf of an employer, directly or indirectly.” Attorneys representing employees may argue the law provides for individual supervisor liability.

The ordinance also establishes the Akron Civil Rights Commission, whose five members will be appointed by the Mayor and confirmed by the Akron City Council. The Commission will “aim to include a diverse set of members from classes of individuals protected from discrimination” by the new ordinance. Commission members must be residents of the City of Akron.

The Akron Civil Rights Commission will hear and investigate complaints brought by individuals who believe they have been discriminated against. A party must file a complaint with the Akron Civil Rights Commission within one year of the alleged discriminatory practice. The new ordinance does not limit the right to file complaints with other agencies, including the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission. Notably, the Akron Civil Rights Commission is empowered to order some substantial remedies for discrimination: hiring, reinstatement, upgrading or promotion; back pay; compliance reporting; notice posting; damages for injury, humiliation, and embarrassment; costs; attorney fees; and civil penalties to the Akron Civil Rights Commission of up to $1,000.00 for each violation.

*Emilie M. Carver practices in all areas of employment and labor law. If you have questions regarding Akron’s new non‑discrimination ordinance, please contact Emilie (emc@zrlaw.com) at (216) 696-4441.



The Saga Continues: Sixth Circuit Rules Employment-Related Class Action Waivers In Arbitration Agreements Are Unenforceable

By Helena Oroz*

The U.S. Court of Appeals for the Sixth Circuit recently issued a much-anticipated decision that cracked the current class action waiver circuit court split even wider. In NLRB v. Alternative Entertainment, Inc., the Sixth Circuit held that an arbitration provision requiring employees to arbitrate individually all employment-related claims is unenforceable because it violates the National Labor Relations Act’s (“NLRA”) guaranteed right to collective action. 858 F. 3d 393 (6th Cir. 2017).

The case began, as so many do, with an employee’s termination. A field technician for Alternative Entertainment, Inc. (“AEI”) voiced his concerns about AEI’s changes to its compensation structure to coworkers, a manager, AEI’s Chief Financial Officer, and even the company’s president, repeatedly referring to technicians collectively. Two days after the employee spoke with the CFO and emailed the president, the company terminated his employment because the “relationship [was] not working out.”

The employee filed charges with the National Labor Relations Board (“NLRB”). An Administrative Law Judge determined that the company violated the NLRA, and the NLRB adopted that decision and filed an application to enforce the order. And that, in short, is how an employee literally makes a federal case out of discontent with compensation practices.

Specifically at issue in the case was AEI’s “Open Door Policy and Arbitration Program.” AEI’s arbitration program required employees to resolve employment-related disputes exclusively through binding arbitration. The company’s arbitration agreement contained a provision stating that the parties agreed that “a claim may not be arbitrated as a class action…and that a claim may not otherwise be consolidated or joined with the claims of others.” The NLRB concluded that this provision violated the NLRA because it prevented employees from taking any concerted legal action.

In reviewing the NLRB’s decision, the Sixth Circuit considered the compatibility of the Federal Arbitration Act (“FAA”), which governs the enforceability of arbitration agreements, and the NLRA, which protects the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” commonly referred to as “Section 7 rights.” The Court determined that the statutes do not conflict because of the FAA’s savings clause. The FAA’s savings clause provides that arbitration agreements are as enforceable as other contracts, but likewise are not any more enforceable than any other contracts “at law or in equity.” In other words, the Court reasoned that the FAA’s savings clause does not require enforcement of any arbitration agreement with illegal provisions. In this case, the arbitration agreement at issue included provisions that prohibited collective and class action suits – illegal under the NLRA as interfering with employees’ Section 7 rights.

In so holding, the Sixth Circuit agreed with the Seventh and Ninth Circuits’ previous holdings on the issue and completely disagreed with the Fifth Circuit’s previous holdings that arbitration provisions mandating individual arbitration of employment-related claims are enforceable. Now it is up to the U.S. Supreme Court to decide how the saga ends. Before the Sixth Circuit even had issued this decision, the Supreme Court had already granted writs of certiorari this past January in Morris v. Ernst & Young, LLP (9th Circuit, 2016), Lewis v. Epic Systems Corp. (7th Circuit, 2016), and Murphy Oil USA, Inc. v. NLRB (5th Circuit, 2015) and consolidated the three cases. The consolidated cases are currently in the briefing stage, so it remains unclear when the Supreme Court will actually issue a decision to resolve this ongoing circuit split.

In the meantime, if you are an employer with an arbitration program, keep tabs on these developments – and perhaps prepare for a change to your program pending the Supreme Court’s decision. Another take away, beyond the immediate scope of this article? Don’t rush to terminate an employee you find annoying because he or she is complaining about compensation changes or other terms and conditions of employment something, especially on behalf of a group. It’s a good way to start the NLRB ball rolling and end up in federal court.

*Helena Oroz, an OSBA Certified Specialist in Labor and Employment Law, is is a member of the firm’s Labor and Employment Groups and has extensive experience with arbitration agreements. If you have questions regarding your arbitration program, contact Helena at hot@zrlaw.com or (216) 696-4441.



More Data, More Problems? EEO-1 Now Requires Reporting of Summary Pay and Hours Worked Data

By Lisa A. Kainec*

If you thought the Equal Employment Opportunity Commission ("EEOC") was all up in your business before, 2017 won’t bring you any relief. Beginning with 2017 data, the EEOC has created additional reporting requirements for employers required to submit an Employer Information Report, or EEO-1.

Specifically, certain employers must now submit summary pay and hours worked data for their workforce. Starting with the 2017 report, due March 31, 2018:
  • Private employers and federal contractors/subcontractors with 100 or more employees will submit summary pay data.
  • Federal contractors/subcontractors with 50 to 99 employees will continue to report the same job category and demographic data as required in previous years (no summary pay data).
  • Private employers with 99 or fewer employees and federal contractors/subcontractors with 49 or fewer employees are not required to submit an EEO-1 report.

Until now, the EEO-1 required all reporting employers to categorize employees by job and demographics. Employers first categorize their employees into ten job categories, which remain the same (Executive/Senior Level Officials and Managers; First/Mid-Level Officials and Managers; Professionals; Technicians; Sales Workers; Administrative Support Workers; Craft Workers; Operatives; Laborers and Helpers; and Service Workers). Next, employers report the number of employees within each job classification by sex and ethnicity or race (White; Black or African American; Native Hawaiian or Pacific Islander; Asian; Native American or Alaska Native; or Two or More Races).

Now, applicable employers also must report summary pay data. The revised EEO-1 contains twelve pay bands into which the employer must categorize employees. Employers should pull employee pay data from Box 1 of employee Forms W-2 to prepare the revised EEO-1 but should not report individual pay or salaries. Instead, employers will mark the number of employees in a pay band that fall within a particular job category and demographic. For example, an employer may report five Native Hawaiian men in pay band 10 ($128,960 - $163,799) in the Executive/Senior Level Officials and Managers job category. See the new EEO-1 here: https://www.eeoc.gov/employers/eeo1survey/2016_new_survey_2.cfm.

In addition, applicable large employers must count and report hours worked for employees. Employers will report the total number of hours worked for all employees in a particular pay band and may count hours based on records required under the Fair Labor Standards Act (“FLSA”). For FLSA non-exempt employees, employers should report based on the hours those employees worked. For FLSA exempt employees, employers may: 1) report 20 hours per week for each part-time employee and 40 hours per week for each full-time employee; or 2) report the actual number of hours worked by each exempt employee. For example, four employees in a particular ethnicity and pay band (e.g., Black/African American in pay band 11) could work the following hours: 2,080; 2,500; 1,660; and 1,040. In that case, the employer would report 7,280 hours worked in the year in the Black/African American and pay band 11 column/row. See this portion of the new EEO-1 here: https://www.eeoc.gov/employers/eeo1survey/2016_new_survey_3.cfm.

Since applicable employers now must submit cumulative information for a given year (e.g., hours worked), the EEOC also changed the reporting deadline. Previously, the EEOC required employers to submit their EEO-1 report by September 30th in a given year. Now, the deadline is March 31st. Therefore, applicable employers must submit the next EEO-1 report, which reflects 2017 data, by March 31, 2018 (and will submit 2018 data by March 31, 2019, etc.).

The EEOC also modified the “workforce snapshot period” – the three-month window during which employers choose one pay period to identify and count employees for EEO-1 reporting purposes. Previously, the “workforce snapshot period” was July 1 to September 30. Under the revised EEO-1 report, that “workforce snapshot period” is from October 1 to December 31. Once the employer identifies the individuals on which it will report, it reports their information, including summary pay and hours worked data, for the calendar year.

While employers have some time to adjust to the new reporting requirements, they should begin developing and identifying processes for gathering the newly required data now.

*Lisa A. Kainec, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of employment and labor law. If you have questions about the EEO-1 or its new reporting requirements, contact Lisa (lak@zrlaw.com) at 216.696.4441.



Top Five Handbook Policies for Employers to Review in 2017

By Brad E. Bennett*

Federal and state legal developments over the past couple of years have brought changes that impact workplace policies and procedures. While President Trump has indicated that federal employment regulations will be pulled back under his administration, employers should make sure their handbooks are up to date in order to comply with current federal and state laws. Here are five policy provisions to review based upon federal and state developments over the past couple years.

1. Whistleblower Provisions

Employers should make sure their handbook provisions do not inadvertently discourage employees from reporting potential legal violations to the employer or to government agencies. The Equal Employment Opportunity Commission (“EEOC”) has been targeting any policy that may be interpreted as curbing an employee's right to go to the EEOC—or any other agency—to report violations of the law. Reviewing language throughout a handbook in order to address this issue is encouraged. Further, ensuring that a strong anti-retaliation policy or provision is contained in the handbook will prove to be invaluable.

2. Background Checks

Public employers also should take a close look at their background check policies and procedures to make sure they align with Ohio’s “ban-the-box” law that went into effect in March of 2016. The law prohibits Ohio public employers from asking about criminal convictions in the initial application.

The EEOC also has previously issued an Enforcement Guidance regarding the use of criminal background checks in employment. The EEOC Guidance, which is applicable to both public and private sector employers, should also be taken into consideration when revising background check policies and procedures. The EEOC Guidance states that policies which exclude applicants with any criminal conviction from employment are considered discriminatory. Instead, the EEOC requires employers to determine whether specific criminal conviction exclusions are “job related and consistent with business necessity.” To make such a determination, the EEOC utilizes a three-factor test utilized by the Eighth Circuit Court of Appeals in Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975) (the "Green factors"). Based upon the Green factors, the EEOC will review whether the employer considered the following in denying employment based upon a criminal conviction:
  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

Therefore, employers are encouraged to review their background check policy and procedure in light of Ohio’s “ban-the-box” law and the EEOC Guidance.

3. Drug Testing Policies

As of September 2016, medical marijuana is legal in Ohio. However, nothing in the new law interferes with an employer’s right to prohibit the use, possession or distribution of marijuana in the workplace. Because marijuana is still listed on Schedule I of the Federal Controlled Substance Act, it is also still illegal under federal law. Therefore, Ohio’s medical marijuana law specifically authorizes employers, through a drug-free workplace policy, to treat medical marijuana’s presence in an employee’s system as a violation of the policy. It is advisable for employers to make it clear in their drug-free workplace policies that detection of the presence of medical marijuana in an employee’s system through a drug test will violate the policy.

4. Weapons Ban Policies

Effective March of 2017, Ohio’s new concealed carry law prohibits both public and private employers from having or enforcing policies that restrict valid concealed carry holders (as well as covered active military members) from transporting or storing their firearms and ammunition in their personal vehicles. While nothing in the new law requires employers to allow concealed carry holders to bring their weapons into employer buildings or employer owned or operated vehicles, it does permit concealed carry holders and covered active military members to store their personal firearms and ammunition in their personal vehicles as long as the vehicle is in a location where it is otherwise permitted to be (e.g. a parking lot).

As a result, weapons policies, vehicle usage policies, and other applicable policies should be reviewed and revised in order to ensure continued compliance with Ohio law in this area.

5. Workplace Accommodations and Light Duty Policies

By now, employers are well aware of their obligation to provide a “reasonable accommodation” to a qualified employee or applicant with a disability under Ohio and Federal law. As such, most employers already have a “disability accommodation” policy. However, an employee or applicant with a disability is not the only area where employers must provide a reasonable accommodation.

Title VII of the Civil Rights Act (“Title VII”) also requires employers to provide reasonable accommodations for an employee’s religious practices. In 2015, the requirement to provide religious accommodations was brought to the forefront when the U.S. Supreme Court found that Abercrombie & Fitch failed to inquire whether a reasonable accommodation to its dress code policy could be provided when it rejected a Muslim applicant who wore a hijab to the job interview. See EEOC v. Abercrombie & Fitch, 135 S.Ct. 2028 (2015).

In the case of Young v. UPS, 135 S.Ct. 1338 (2015), the U.S. Supreme Court also held that employer light duty policies that are limited to only workplace injuries and which cannot be utilized by pregnant employees violate the Pregnancy Discrimination Act and Title VII. The U.S. Supreme Court made it clear that polices must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” As a result, light duty policies and accommodation policies should address female employees who, due to pregnancy, are limited in their ability to work.

Based upon the U.S. Supreme Court’s duel opinions regarding religious accommodations and accommodating pregnancy-related limitations, employers should take a second look at both their light duty and workplace accommodations policies and procedures. Employers should spell out in their handbooks not only the legal basis for accommodations but also the employer’s intention to comply with them when they are reasonable.

So, there you have it – the top five handbook policies to review for 2017 (thus far). Of course, don’t forget the value of supplying employee and management training once your handbook policies are revised. Managers also should be trained regarding their obligations when confronted with a request for an accommodation or for light duty under the law and under the handbook policy.

*Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment law, is a member of the firm’s Labor and Employment Groups and practices out of the firm’s Columbus, Ohio office. If you have questions regarding your company’s handbook policies, contact Brad at beb@zrlaw.com or (614) 224-4411.



Substance Over Form: Employers Need the Right Evidence to Combat Disability Discrimination Claims

By David P. Frantz*

Even though a stock clerk could not fulfill his job’s lifting requirements, a court concluded that he was qualified for the job. In Camp v. Bi-Lo, LLC, 662 Fed. Appx. 357 (6th Cir. 2016), a grocery store discharged a stock clerk when the clerk’s doctor did not clear him to lift 60 pounds, which was a “frequent” requirement of his job. The clerk sued, claiming the store discriminated against him on the basis of his disability in violation of the Americans with Disabilities Act (“ADA”).

At issue in Camp was whether the stock clerk was qualified for his position, given his inability to lift 60 pounds and the employer’s contention that this was an essential job function. When determining whether a particular job function is essential, courts consider a number of factors: 1) the employer’s judgment; 2) the written job description; 3) the amount of time the employee spends performing the function; 4) the consequences of not requiring the employee to perform the function; 5) the work experience of previous employees who held the position; and 6) the current work experiences of employees in similar jobs.

The court in Camp rejected the employer’s reliance on the stock clerk job description. The employer created the job description more than thirty years after the clerk started working for the company. In addition, the clerk’s immediate supervisor testified that heaving lifting was not an essential job function. The court found that a supervisor’s testimony may rebut claimed essential functions detailed in a job description.

Further, the employer submitted nothing more than the job description to prove two facts: 1) that heavy lifting took up a significant percentage of the clerk’s job; and 2) the clerk’s inability to lift more than 35 pounds caused an actual burden. In contrast, everyone who worked with the clerk testified that heavy lifting was a small and non-important part of the job. The court also concluded that any consequences resulting from the clerk’s disability were de minimis, as the clerk and his co-workers had an arrangement alleviating the clerk from having to lift the heaviest items. Those co-workers also testified that such an arrangement would have minimal effect on store operations. Finally, the court considered that the clerk fulfilled his job duties for years with his disability and the help of co-workers.

The Camp case teaches employers several important lessons. Disability discrimination cases are fact-specific. It is imperative that employers engage in an interactive process with individual employees to determine if any reasonable accommodations exist. In addition, employers should fully evaluate whether a job function is truly essential and should not simply rely on an old written job description. Employers also should ensure that management and supervisors have the same understanding regarding a job’s essential functions.

*David P. Frantz practices in all areas of employment and labor law. If you have questions about this decision, disability discrimination, or reasonable accommodations, please contact David (dpf@zrlaw.com) at 216.696.4441.



Z&R SHORTS


Please join Z&R in welcoming Sean Kelly to its Employment and Labor Groups.


Sean Kelly joined Zashin & Rich in 2017. He represents public and private sector employers in all aspects of labor and employment law and employee benefits disputes. Sean has extensive litigation experience before state federal courts and administrative agencies. His representative cases include complex occupational safety and health, workplace intentional tort, employment discrimination, and whistleblower matters. Sean also has experience handling disputes arising under the Employer Retirement Income Security Act of 1974 (ERISA) and state insurance law. Sean has appeared before the Supreme Court of Ohio, and has set Ohio precedent in the area of workers' compensation. In addition to his litigation practice, Sean counsels employers in EEO, OSHA, employee benefits, executive compensation, wages and hours, and other compliance matters. He brings over a decade of experience in highly specialized industry sectors including aviation, maritime, health care, and oil and gas production. His practice includes helping employers properly address inspections by government agencies including OSHA, NIOSH, and the FAA.

Upcoming Speaking Engagements


Monday, August 21, 2017
Patrick M. Watts presents “Creating Fair Labor Standard Act (FLSA) Compliance Strategies That Work” at the National Business Institute’s seminar on Advanced Employment Law held at the Hilton Garden Inn Akron in Akron, Ohio.

Wednesday–Friday, September 13–15, 2017
Patrick M. Watts and Lisa A. Kainec present “Medical Marijuana and the Heroin Epidemic: Impact on the Workplace” at the Ohio Society for Human Resource Management seminar held at Kalahari Resorts in Sandusky, Ohio.

Monday, October 2, 2017
Jonathan J. Downes presents “Labor and Employment Law Challenges” at the Ohio Association Chiefs of Police New Chiefs’ Workshop held at the Crowne Plaza Columbus North‐Worthington in Columbus, Ohio.

Tuesday, October 24, 2017
Lisa A. Kainec presents “Employment Law Hot Topics and Legislative Update” at the Medina Society for Human Resource Management seminar held at Weymouth Country Club in Medina, Ohio.
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Friday, January 15, 2016

Bugged: NLRB Protects Surreptitious Workplace Recordings

By David P. Frantz*

At the end of 2015, the National Labor Relations Board (“NLRB”) marched on in its war against commonplace employee handbook provisions and found that Whole Foods’ policy prohibiting surreptitious workplace recordings violated employees’ rights under the National Labor Relations Act (“NLRA”).  See Whole Foods Market, Inc., 363 NLRB No. 87 (December 24, 2015).  The NLRB’s decision is a reminder to employers that seemingly innocuous and well-intentioned policies may be deemed unlawful by the NLRB, even in the face of reasonable business justifications.

Whole Foods’ recording policy, which had been in place for over a decade, prohibited employees (including managers) from recording “conversations, phone calls, images or company meetings” on company premises without prior approval from management.  Whole Foods attempted to justify this prohibition based upon its open-door policy encouraging employees to state their opinions.  Whole Foods argued that recordings of the company’s open forum meetings would “chill the dynamic” and discourage employees from voicing their opinions and criticisms.   Additionally, Whole Foods argued that recordings would adversely affect the company’s internal appeal process for termination decisions and confidential meetings held to discuss financial assistance for employees.

The NLRB was unpersuaded by Whole Foods’ justifications and held that employees would reasonably construe the recording policy to prohibit them from exercising their rights under the NLRA.   “Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected . . . if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.”  The NLRB provided examples of protected conduct, including “recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.”  As Whole Foods’ policy prohibited all unapproved workplace recordings without any qualifications, the NLRB found it to be overbroad and unlawful.

The NLRB noted it was not prohibiting outright all employer restrictions on workplace recordings.  Rather, employers may have valid, narrowly-drawn restrictions on recordings when warranted by the circumstances.   For example, in a hospital setting, patient privacy interests can provide a compelling justification for a policy prohibiting employees from recording images of patients, equipment, and facilities.  The NLRB stated that Whole Foods’ business justifications (i.e., encouraging open communication and preserving privacy interests) were “not without merit.”  However, it found the justifications were based upon relatively limited circumstances (e.g., meetings and termination appeal panels) that were not compelling enough to justify the unqualified restriction on unapproved recordings.

In light of the NLRB’s Whole Foods decision, employers should review their employee handbooks and policies regarding workplace recordings.  Such policies could lead to unfair labor practice charges, and the NLRB likely will deem unlawful any blanket prohibitions of workplace recordings that lack compelling and specific justification.  Employers that have policies restricting workplace recordings and wish to retain them should contact counsel about revising the policies to withstand the NLRB’s scrutiny.

*David P. Frantz regularly represents and counsels employers on the National Labor Relations Act and workplace policy related issues. For more information about the Whole Foods decision or your labor and employment law needs, please contact Dave (dpf@zrlaw.com) at 216.696.4441.
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Tuesday, December 1, 2015

FOOL’S GOLD: When HR Policies Are Not Enough

By Lisa A. Kainec*

Every HR professional knows that solid policies are essential to protect a company against legal claims and liabilities. Unfortunately, even the best policies cannot provide the best protections. Ask yourself a few “what if” scenarios about your key employees, your monetary investment in those employees, the information they have at their fingertips, and what would happen to your business if that information made its way to your competition? If your answers to those questions raise concerns, let’s talk about getting your best protections in place now and hope you’ll never need to use them.

Consider the following policies:

  • Confidential Information: Most employee handbooks clearly set forth the employer’s policies on protecting the proprietary and confidential nature of information available to the employees. Those policies certainly provide the basis for corrective action up to and including termination of the employment relationship. But do those handbook policies adequately protect the employer if the employee takes confidential information – in paper or electronic form – prior to leaving the company?
  • Relocation Benefits: Does your company provide relocation benefits to new employees? Many employers have great relocation packages that afford new employees payment for numerous relocating expenses. However, does your company only have a relocation policy that explains the benefits, but no contractual agreement that permits you to recoup those expenses if the employee leaves employment after a short time?
  • Non-Compete and Non-Solicitation: What if the employee leaves and solicits his or her existing accounts to work with his or her new company? What if the employee solicits co-workers to join his or her new company? What happens when an employee leaves and attempts to compete with the prior employer? Is the employer protected from losing its customers and employees?

So why isn’t an employee handbook enough to protect you? In virtually every instance, a company’s employee handbook is not a contract of employment and the employer can amend, change, or modify the handbook at any time. In light of such rights, the statements made in an employee handbook are not contractual. The same also holds largely true for offer letters, codes of conduct, and other employer communications. In virtually all of these documents, the employer correctly advises employees that the policies are not contracts and that either the employer or the employer can terminate the relationship at any time.

While those disclaimers protect an employer from certain contractual claims, many employers are left vulnerable and unprotected. The above examples (among others) are instances where an employer’s best protection is a simple written agreement with the employee that specifies their obligations during and after employment. That is why a separate written agreement is essential for certain employees and situations. It also is critically important that a company work with labor and employment lawyers to ensure that their policies will hold up when challenged and are otherwise lawful.

*Lisa A. Kainec, former Vice President of Human Resources and Senior Employment Counsel for Jo-Ann Stores, recently joined the firm’s labor and employment group in its Cleveland office. Lisa represents employers in all areas of labor and employment law including policy review and compliance. If you have questions about employer policy or contract drafting, please contact Lisa A. Kainec | lak@zrlaw.com | 216.696.4441
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Tuesday, April 8, 2014

Whether Unionized or Not, Employers Must Review Their Employee Handbooks for NLRA Issues, Before the NLRB Does it for Them

*By Patrick J. Hoban

In March 2011, a hospital issued an employee a written disciplinary warning for posting the following on Facebook: “Holy shit rock on [S!]. Way to talk about the douchebags you used to work with. I LOVE IT!!” In response, the employee in the non-union facility filed an unfair labor practice charge with the National Labor Relations Board (“NLRB”). On April 1, 2014, the NLRB upheld an administrative law judge’s decision and invalidated the employee handbook provision under which the hospital disciplined the employee. Hills & Dales General Hospital, 360 NLRB No. 70 (April 1, 2014). In another decision issued on April 2, 2014, the NLRB invalidated a handbook provision which prohibited “discourteous or inappropriate attitude or behavior to passengers, other employees, or members of the public.”  First Transit, Inc, 360 NLRB No. 72 (April 2, 2014). In both decisions, the NLRB found each employer violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) for unlawfully interfering with employee rights under the NLRA. These decisions again demonstrate that employers without unions or active union organizing are subject to the NLRA and that the NLRB will parse even the clearest and most reasonable employee handbook or work rule language to find a violation.

In Hills & Dales General Hospital, the non-unionized employer disciplined the employee for the offensive Facebook posting in violation of a handbook provision requiring employees to “represent Hills & Dales in the community in a positive and professional manner in every opportunity.” According to the NLRB, employees would reasonably conclude this paragraph prevented them from making negative remarks about the hospital in public. The NLRB explained that a rule requiring employees to represent the hospital in a “positive and ethical” manner would not have run afoul of the NLRA. However, the NLRB found that the word “professional” is a “broad and flexible concept as applied to employee behavior” and its inclusion in the provision rendered it unlawful on its face (although the NLRB did not address whether the discipline itself was unlawful).

In First Transit, where there was no discipline and some facility employees were unionized, the NLRB found numerous handbook provisions prohibiting theft, “poor work habits,” and “profane or abusive language where the language used is uncivil, insulting, contemptuous, vicious, or malicious” lawful. However, the NLRB found the provision prohibiting “discourteous or inappropriate” behavior unlawfully overbroad as, the NLRB concluded, employees would reasonably conclude it prohibited them from communicating about their employment. The handbook at issue in First Transit included a “Freedom of Association” provision affirming employee rights to organize a union and the employer’s pledge not to interfere with such activity. The employer argued that this language made clear to employees that the handbook terms did not restrict NLRA rights. However, when reviewing the Freedom of Association policy, the NLRB determined its placement was neither “prominent nor proximate” to the facially unlawful rules. In short, the NLRB concluded that employees could not reasonably be expected to apply the disclaimer to every policy in the 73-page handbook.

Although in First Transit the NLRB upheld a policy prohibiting “profane or abusive” language, both decisions highlight the wide range of employee speech the NLRB considers protected under the NLRA. Specifically, First Transit invalidated the prohibition on “discourteous and inappropriate” behavior because “no wording provide[d] a context limiting the rule to legitimate business concerns such as uncooperation [sic] with supervisors.” In Hills & Dales General Hospital, the NLRB invalidated the provision that it concluded prevented employees from making “negative comments about . . . team members” because that definition included managers.

The Hills & Dales General Hospital and First Transit decisions are the latest in the NLRB’s assertion of authority as an “Editor-in-Chief” of employer policies. In 2010, the NLRB found probable cause to issue a complaint when an employer disciplined an employee for calling her supervisor a “scumbag” on Facebook.  American Medical Response of Connecticut, Inc., 34-CA-12576. In an Advice Memorandum concerning the case, the NLRB’s General Council concluded that an employee calling a supervisor a “scumbag” was protected activity because the NLRB “ha[d] found more egregious name-calling protected.”

These recent NLRB decisions demonstrate that employers must carefully review employee handbooks and workplace policies with an eye toward the aggressive parsing of the NLRB. Additionally, any employer, unionized or not, can face charges based on employment policies. Finally, while most reasonable people can agree that an employee who refers to co-workers as “douchebags” or to supervisors as “scumbags” has a damaging effect on the workplace, the NLRB may find that activity protected. As a result, all employers should carefully consider these issues and consult counsel before disciplining employees for similar misconduct.

*Patrick J. Hoban, 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 decision or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
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Friday, March 7, 2014

EMPLOYMENT LAW QUARTERLY | Winter 2014, Volume XVI, Issue i

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Public Sector Alert: Tenth District Court of Appeals Lays the Groundwork for Disparate Impact Age Discrimination Claims Based On "Anti-Double Dipping" Policies

By Todd M. Ellsworth*

For those of us who remember the television show Seinfeld, it is hard to forget the episode where George dips his chip, takes a bite, and then dips the same chip again. Just as George broke acceptable community standards, taxpayers often feel public employees do the same when they retire and then get rehired by their same employers. In doing so, the employee receives pay and benefits in addition to retirement benefits for performing the same or similar duties. The process, known as “double dipping,” has a long history in Ohio’s public sector. Public employers like retired rehires, or “double dippers,” because they get the same experience at a generally lower personnel cost. Retired rehires like the practice because of the obvious financial benefits. The benefits of “double dipping” are not as readily apparent to the general public, and paying someone twice for the same job is not a common practice in the private sector.

In response to growing public concern, some public agencies have attempted to prohibit “double dipping.” Ohio’s Tenth District Court of Appeals recently weighed in on the matter in Warden v. Ohio Department of Natural Resources, 2014-Ohio-35 (10th Dist. Ct. App. January 9, 2014).

In Warden, the Court found that the policy prohibiting “double dipping” did not constitute a direct cause of action for age discrimination. In addition, and although the Court held that Warden failed to properly plead or litigate a disparate impact claim, the Court addressed whether the employee established that the “anti-double dipping” policy had an adverse effect on older workers. That is, while the policy was facially neutral, did it have an adverse effect on workers aged forty and older. While the Court concluded that no statistical significance existed because the sample size was too small, the Court made it clear that an employee could establish such a claim if the employee could demonstrate sufficient statistical disparities. It is noteworthy that the Ohio Supreme Court has not yet addressed whether such policies could have a disparate impact on older workers. As a result, public sector employers should carefully consider these recent developments if they are considering implementing such a policy.

*Todd M. Ellsworth practices in all areas of labor and employment law. He has extensive experience counseling public sector employers on state and federal discrimination claims.

Boxed In: What Can Employers Ask on Job Applications?

By Andrew J. Cleves*
Recently, a movement has spread across the country to “Ban the Box” on job applications. The “Box” refers to a square that, when marked, indicates an individual has a criminal background. A growing number of cities and states have prohibited this question on job applications. Proponents argue such inquiries often automatically disqualify applicants and increase chances of recidivism. For employers, “Ban the Box” laws pose an increased burden on the job application and screening process.

Hawaii became the first state to “Ban the Box” in 1998. Currently, ten states (California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Maryland, Minnesota, New Mexico, and Rhode Island) have some form of a “Ban the Box” law. Of those, five (California, Illinois, Maryland, Minnesota, and Rhode Island) passed “Ban the Box” laws or regulations in 2013 and four more have made these changes since 2009. On a more local scale, over fifty cities, including Chicago, Cleveland, and Cincinnati, have adopted some form of “Ban the Box” practices. In addition, the EEOC recommended banning the box on job applications as a best practice in a 2012 enforcement guidance. Some private employers, like Target, have removed such questions from job applications.

While many states and local governments have these measures in place, the laws or regulations and their subsequent effect on employers vary significantly. For many states, such as Connecticut and Maryland, the “Ban the Box” prohibition only applies to state employees. However, in places like Minnesota, the law applies to public and private employers alike. Even where these laws affect private employers, exceptions exist and the restrictions may be lifted at some point in the application process. Often, employers may inquire into an applicant’s criminal background after 1) the applicant was selected for an initial interview, 2) the applicant had an initial interview, or 3) the employer made a conditional job offer. In some instances, if an employer learns of an applicant’s criminal background and does not make a job offer, the employer must show the background was not tied to the employment decision.

Though “Ban the Box” efforts have grown, Ohio does not have such a law. In July 2013, Ohio legislators introduced House Bill 235 that would prohibit public and private employers from asking whether “the applicant has been convicted of or plead guilty to a felony.” However, as of January 2014, the bill had not moved past the Commerce, Labor and Technology Committee. While there is no statewide law, Lucas and Stark Counties and Cleveland, Cincinnati and Canton have “Ban the Box” measures in place. These measures only apply to public employers.

Employers need to understand what, if any, “Ban the Box” restrictions apply in the states, cities, and counties they do business. Employers also should carefully watch for “Ban the Box” developments.

*Andrew J. Cleves practices in all areas of labor and employment law. If you have questions about state or local “Ban the Box” laws and regulations or other hiring concerns, please contact Andrew (ajc@zrlaw.com) at 216.696.4441.

Collateral Damage: the Effect of Criminal Convictions on Employment Applications

By David P. Frantz*
Criminal convictions impact much more than the sentence and possible fines associated with the underlying offense. Convictions or guilty pleas may automatically bar individuals from consideration for certain jobs. For example, Ohio Revised Code 173.38(C)(3) and (F) prevent applicants convicted of certain crimes from working in a direct-care position with a community based, long-term-care provider. The Ohio legislature recently addressed the secondary impact of a criminal conviction, dubbed a collateral sanction, when Ohio Revised Code 2953.25 went into effect in September 2012. The law created Certificates of Qualification for Employment (CQE). CQEs lift the automatic bar(s) of the collateral sanction(s) and essentially give the qualifying individual a stamp of rehabilitation. The law then directs employers to consider these applicants on a case-by-case basis.

Though CQEs may sound daunting for employers, the Ohio legislature created a rigorous application process and granted employers certain protections. To apply, an individual must first wait either six months (misdemeanors) or one year (felonies) after the individual has been released from all sanctions related to the offense. Then, the individual must submit a detailed application to the Division of Parole and Community Services. Next, the local court of common pleas may take sixty days to review, gather additional information, and approve or deny the application. To grant an application, the court must find a) the CQE would materially help the individual find a job, b) the individual substantially needs the CQE to stay out of trouble, and c) granting the CQE would not pose a safety risk. Even then, the law prohibits courts from granting CQEs in some circumstances. For example, courts cannot grant CQEs to remove license denials or suspensions for health care professionals convicted of sexual battery or improper distribution of controlled substances.

Furthermore, the law grants substantive protections to employers who hire CQE holders. For general negligence lawsuits, the employer may submit the CQE as evidence that the employer took due care in hiring or retaining the CQE holder. For negligent hiring lawsuits, Ohio Revised Code 2953.25 grants the employer immunity. The employer may invoke these protections if the employer knew the individual held the CQE at the time of hire.

Employers should be wary of retaining CQE-holders who commit additional crimes after obtaining employment though. The law limits employer protection where a CQE holder is a) hired, b) “subsequently demonstrates dangerousness or is convicted of or pleads guilty to a felony,” and c) thereafter retains employment. In those cases, the employer may be liable for retaining the employee. The party bringing the claim must prove that a decision-maker knew of the transgression and willfully retained the employee. Furthermore, once someone obtains a CQE, the law presumptively revokes it if the person later commits or pleads guilty to a felony.

Despite the fact that county courts began accepting CQE applications in March 2013, only 40 had been filed in Cuyahoga County as of mid-December 2013. Of those 40, the courts granted 17 applications, rejected three, and have not made decisions on the remaining 20. As CQEs become more prevalent, it is likely your organization may soon receive an application with one. Given their infancy, to the extent you have questions about CQEs, you should contact your legal counsel.

*David P. Frantz practices in all areas of employment law. If you have questions about CQEs or hiring policies, please contact David (dpf@zrlaw.com) at 216.696.4441.

Employer Provided Healthcare Insurance Costs Increasing for Smokers and Overweight Employees

By Patrick J. Hoban*
As if there was not enough controversy surrounding the rollout of the Patient Protection and Affordable Care Act (ACA), many employees who smoke or are overweight may discover that their healthcare costs will increase. Consistent with a growing trend among employers to incentivize (or punish depending on your point of view) employees to live healthier lifestyles, ACA contains provisions allowing employers to charge employees who smoke or are overweight higher health insurance premiums.

ACA encourages employers to utilize “participatory wellness programs.” Examples of these programs include reimbursements for employee gym memberships and rewarding employees for attending health seminars or for completing health risk assessments. In addition to these participatory programs, employers can also implement “health-contingent wellness programs,” which reward employees who are able to meet specified goals or health-related requirements. These programs fall into two categories: (i) “activity-only” programs that reward employees who participate in specific activities (e.g., an exercise or diet plan); and (ii) “outcome-based” programs for employees who maintain healthy choices or goals (e.g., not smoking).

The “reward” for employees who utilize the health-contingent wellness programs can be up to 30 percent of the cost of health coverage for non-tobacco use related programs and up to 50 percent of the cost of health coverage for programs aimed at tobacco use prevention and cessation. Alternatively, employees who fail to participate in these health-contingent wellness programs can get charged up to 30 to 50 percent more for their health insurance premiums than their healthier, non-smoking coworkers.

Independent of the provisions of ACA, some employers have implemented policies under which they will not hire smokers. For example, employers have adopted non-smoking policies for new hires and require job applicants to take a urine test to detect the presence of nicotine in their systems. If an applicant tests positive for nicotine, he or she will not be hired but may re-apply after a 90-day waiting period. Employers considering a similar policy for new hires must beware as all states do not permit these policies. The following states and the District of Columbia prohibit employers from making hiring decisions or employment decisions, including demotions, suspensions, and terminations, based on whether the applicable individual smokes: California, Connecticut, Illinois, Indiana (excludes religious employers), Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Virginia (applies to state employees only), West Virginia, Wisconsin, and Wyoming. States with similar laws that do not apply to hiring decisions but prevent employers from terminating employees for tobacco use during non-work hours include: Colorado, South Dakota, and Tennessee.

With the advent of ACA and as society continues to become more health conscious in general, many employers may find themselves having to make healthcare related decisions that they have not faced in the past. ACA encourages employers to implement wellness programs that can serve both as a carrot and a stick to incentivize employees to make healthier lifestyle choices. However, employers must ensure that these wellness programs - like all employer policies and programs - are not discriminatory and do not violate laws like the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and corresponding state laws.

*Patrick J. Hoban practices in all areas of labor and employment law. He has extensive experience counseling employers on employee wellness programs and ACA. For more information about these topics or any other labor and employment needs, please contact Patrick (pjh@zrlaw.com) at 216.696.4441.

The Department of Labor’s Crackdown on Out-of-Date Employee Handbook is a Costly Reminder to Regularly Update Employee Handbooks

By Ami J. Patel*
An otherwise run-of-the-mill Family and Medical Leave Act (FMLA) violation claim made to the Department of Labor’s (DOL) Wage and Hour Division by a restaurant employee recently snowballed into a full-blown DOL investigation into the restaurant chain’s employee handbook. Pursuant to an agreement with the DOL, the restaurant must change its leave policy to comply with the FMLA and pay back wages owed to the individual employee. As a result of the publicity of the investigation and agreement, the restaurant chain could face increased exposure to claims by employees alleging FMLA violations under the company’s old policies. This crackdown should serve as a lesson and warning to employers using out-of-date handbooks that a single claim can lead to a major headache and unexpected liability.

Employee handbooks implicate a number of employment related laws and can lead to investigations by and proceedings before various federal and state administrative agencies. Employee handbook compliance is complex and requires regular updating. Taking the time to regularly update a handbook is a far better alternative than the potential consequences of using a non-compliant one.

The DOL’s investigation of the restaurant chain’s employee handbook focused on its FMLA policy. Under the FMLA, eligible employees who work for covered employers are entitled to take a maximum of 12 weeks of leave in a 12 month period for specified reasons. Among other things, in order for an employee to be eligible for FMLA leave, the employee must have worked for the employer for at least 12 months. However, contrary to what the subject handbook stated, those 12 months of employment do not need to be consecutive. The policy also did not include information on the FMLA’s family military leave provisions or intermittent and reduced-schedule leave.

Employee handbooks should aid employers in avoiding or prevailing in litigation. In order to maintain an employee handbook’s usefulness and minimize liability, employers need to ensure that their employee handbooks are up-to-date and compliant with ever-changing laws and regulations. All it takes is one claim by one employee to open a can of worms that can lead to other claims and substantial costs.

*Ami J. Patel practices in all areas of labor and employment law. She has extensive experience counseling employers on FLMA compliance and handbook issues. For more information about these topics or your other labor and employment needs, please contact Ami (ajp@zrlaw.com) at 216.696.4441.

Z&R Shorts

Zashin & Rich is pleased to announce the addition of Andrew Cleves to the firm’s Employment and Labor Group in its Cleveland office.
Andrew’s practice focuses on private and public sector labor relations and employment law. Prior to joining Zashin & Rich, Andrew represented public sector labor unions in Cincinnati. Andrew's experience includes advising clients in collective bargaining negotiations, contract arbitrations, and employment litigation. He has represented clients in state and federal court and before the Ohio State Employment Relations Board.

Upcoming Speaking Engagements

March 27, 2014
Stephen Zashin will present “Brainy FMLA: Advanced Instruction for FMLA Whiz Kids” at the “Administering the Family and Medical Leave Act in Ohio” seminar on March 27, 2014 at the Holiday Inn Cleveland South in Independence, Ohio. For more information, go to www.lorman.com/ID393028.

March 31, 2014
Jonathan Downes will discuss mediation at the SERB Academy on March 31, 2014. For more information contact Tammy Johnson at tjohnson@serb.state.oh.us.

April 17, 2014
Jonathan Downes will present “The Nuts and Bolts of Bargaining, Bargaining Strategies, and Media Relations” at the “Collective Bargaining for Public Safety Employees” seminar on April 17, 2014. For more information, go to www.lris.com.

April 29, 2014
Jonathan Downes will present “Update on Employment Law Matters Affecting Law Enforcement” and “Collective Bargaining and Union Issues Update” at the Ohio Association of Chiefs of Police (OACP) Chief’s Annual Conference on April 29, 2014.

April 30, 2014
Jonathan Downes will present “Employment Law Basics for Public Managers” at the Miami Valley Risk Management Association meeting on April 30, 2014, in Dayton, Ohio. For more information, go to www.mvrma.com.

May 2, 2014
Jonathan Downes will present “Legal Update” at the Ohio Association of Public Safety Directors Annual Conference on May 2, 2014, at the CCAO Conference Center in Columbus, Ohio.

May 14, 2014
Jonathan Downes will present “Employee Issues from Social Media” at the Ohio Jobs and Family Services Director’s Association Meeting on May 14, 2014.

May 21, 2014
George Crisci will present “Special Concerns when Dealing with Union Environments” at the National Business Institute’s “Employee Documentation, Discipline and Discharge” program on May 21, 2014, in Akron, Ohio.

May 21, 2014
Jonathan Downes will present “FMLA Issues and Update” and “Workplace Investigations” at the Ohio Jobs and Family Services Director’s Association Meeting on May 21, 2014 at the Hyatt Regency Columbus.

May 22, 2014
Jonathan Downes will present “Discipline of Public Employees” at the Ohio Association of Chiefs of Police (OACP) meeting on May 22, 2014, at the Reynoldsburg Police Department.
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