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

By Stephen S. Zashin*

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

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

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

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

What Should Employers Do Now?

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

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

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

EEOC Mandates End to Enforcement of Disparate Impact Claims

By Lauren M. Drabic*

As a latest example of its shift in enforcement priorities, according to an internal memo obtained by Bloomberg Law, the Equal Employment Opportunity Commission (“EEOC”) has directed its investigators to close all pending charges alleging disparate impact discrimination by September 30, 2025. This directive comes in response to President Trump’s April 23, 2025, Executive Order entitled “Restoring Equality of Opportunity and Meritocracy,” which directed all federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.”

Unlike claims of disparate treatment, which involve allegations that an employer intentionally discriminated against an employee because of his or her race, sex, age, national origin, disability, or other protected characteristic, intent is irrelevant disparate impact claims. Instead, disparate impact claims challenge employment practices that appear neutral on their face, but that nonetheless adversely impact - i.e., disproportionately harm - individuals in a protected class. Under this theory, employers may be liable for discrimination if a facially neutral practice causes a significant, adverse effect on a protected group, unless the policy or practice is job-related and essential to business operations. Historically, employees have successfully challenged practices including pre-employment testing, height and weight requirements, physical strength tests, criminal background checks, and educational requirements when those practices did not relate to the requirements of the job and had no business necessity.

The current administration has targeted disparate impact liability as a hindrance on the ability of employers to make hiring and other employment decisions based on merit. As a result, of the EEOC’s directive, the agency will close out all charges of disparate impact discrimination by September 30, 2025. However, this will not fully extinguish these claims. Instead, individuals who have filed charges alleging only disparate impact discrimination will receive a Notice of Right to Sue letter, which will allow them to pursue their claims in court within a specified timeframe. This could lead to a short-term influx of disparate impact claims in federal court. For charges alleging both disparate impact and disparate treatment, the EEOC will proceed with its investigation but focus exclusively on the disparate treatment claims.

The EEOC’s memo marks the latest example of the current administration’s shift in priorities and the ever-changing landscape of Title VII (Z&R has highlighted other recent examples here and here). However, it does not change the state of the law. Disparate impact discrimination remains unlawful under both Title VII and Ohio’s anti-discrimination statutes. Z&R will continue to monitor developments and stands ready to assist employers with strategic guidance on all matters related to Title VII.

*Lauren M. Drabic is an OSBA-certified specialist in labor and employment law and has extensive experience representing employers in discrimination, harassment, and other workplace enforcement matters. If you have questions about the changes occurring under Title VII, contact Lauren M. Drabic (lmd@zrlaw.com) by email or at 216.696.4441.

EMPLOYMENT LAW QUARTERLY | Volume XXIII, Issue i

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• Breathe Easy: With Vaccinations on the Rise, Ohio Rescinds COVID-19 Health Orders on June 2nd
• Coming Soon: Covered Employers Must File EEO-1 Component 1 Reports by July 19, 2021
• Zip It: NLRB Provides Guidance on Confidential Investigations
• To Pay or Not to Pay: DOL’s Opinion On Employee Travel and Training Time
• Z&R SHORTS

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Breathe Easy: With Vaccinations on the Rise, Ohio Rescinds COVID-19 Health Orders on June 2nd

By Scott H. Dehart*

On May 12th, Governor DeWine announced that, effective June 2nd, Ohio will rescind the majority of its COVID-19 health orders. Accordingly, with limited exceptions, Ohio will no longer mandate the use of masks and social distancing, nor impose COVID-related capacity restrictions. Despite the State lifting its orders, businesses still may voluntarily continue to require mitigation measures. As Governor DeWine explained, “[l]ifting these health orders will not prevent a business from imposing its own requirements. In fact, based upon the experiences of other states, we expect that many stores or businesses may require social distancing and masking.”

Following Governor DeWine’s announcement, the Centers for Disease Control and Prevention (“CDC”) issued interim recommendations on May 13th (available here) stating that, in non-healthcare settings, fully vaccinated people can resume activities without wearing masks or social distancing. In response, Governor DeWine instructed the Director of Ohio’s Department of Health to amend existing orders in accordance with the CDC’s guidance. That amended order (available here) provides, among other things, that fully vaccinated people are no longer required to wear masks with limited exceptions, e.g. public transportation, and can resume activities without social distancing.

Ohio’s lifting of its COVID-19 health orders is a promising sign that the worst of the pandemic is behind us. However, Ohio employers now must decide what mitigation measures, if any, they wish to maintain. This presents a challenging decision, and employers should consider consulting with counsel on effective approaches for revising and communicating changes to their COVID-19 policies and procedures.

*Scott H. Dehart, a member of the firm’s Columbus office, practices in all areas of labor and employment law. If you have questions about Ohio’s pandemic health orders or the impact of COVID-19 on your workplace, please contact Scott at shd@zrlaw.com or (614) 224-4411.

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Coming Soon: Covered Employers Must File EEO-1 Component 1 Reports by July 19, 2021

By Tiffany S. Henderson*

The Equal Employment Opportunity Commission (“EEOC”) collects annual workforce demographic information from covered employers. However, due to the pandemic, the EEOC did not collect data last year. On March 19, 2021, the EEOC announced it was accepting EEO-1 Component 1 Reports (“EEO-1”) and that covered employers must file their 2019 and 2020 data by July 19, 2021.

What is an EEO-1? 

The EEO-1 is an annual report the EEOC requires covered employers to file that includes demographic data for employees sorted by job category, ethnicity, race, and gender. Title VII of the Civil Rights Act of 1964 requires the filing. Last year was the first time the EEOC did not require covered employers to file a report. 

Which Employers Are Covered? 

The EEOC requires private employers with at least 100 employees to file an EEO-1. In addition, federal contractors with more than 50 employees that are not exempt under 41 CFR 60-1.5 must file an EEO-1.  

How Long Will Employers Have to File an EEO-1? 

The EEOC is accepting EEO-1s now, and employers must file their EEO-1s by July 19, 2021. This year’s EEO-1 filing period differs from years past, as the EEOC usually only allows employers 10 weeks to file. However, the EEOC recognized the COVID-19 pandemic’s impact on the workforce and extended the deadline by two weeks to ensure employers have time to provide accurate and reliable data.

How do Employers File? 

Covered employers should visit the EEOC’s EEO-1 website which can be accessed here. Prior to filing, employers should have received 2019 and 2020 EEO-1 notification letters via U.S. mail that should have contained the “Company ID” and “Passcode” employers need to create user accounts.

Employers can file an EEO-1 either: (1) by entering the data into a secure form available at https://eeocdata.org/eeo1/signin; or (2) by uploading a data file using an EEOC-approved format available at https://eeocdata.org/eeo1.

Employers should be aware that they must file an EEO-1 for each year they were in business and met the filing requirement. Due to the pandemic, this year’s collection includes 2019 and 2020 data. Covered employers must file two EEO-1 reports beginning with 2019. The EEOC will certify the 2019 report and then employers can file their 2020 report.

Employers that have not received notification letters or that have questions about filing an EEO-1, including eligibility, should contact counsel or visit EEO-1 Help for more information.

*Tiffany S. Henderson practices in all areas of labor and employment law. If you have questions about the EEO-1 or any employment law questions, please contact Tiffany at tsh@zrlaw.com or (216) 696-4441.

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Zip It: NLRB Provides Guidance on Confidential Investigations

By Jantzen D. Mace*

Maintaining confidentiality during a workplace investigation may seem like a common-sense practice to help ensure the integrity of the investigation. Yet, directing employees to do so can give rise to allegations of interference with employee rights under the National Labor Relations Act (“NLRA”). Fortunately, in a recent decision, the National Labor Relations Board (“NLRB”) reinforced employers’ ability to issue reasonable directives to employees on maintaining confidentiality during workplace investigations.

In Alcoa Corp., 370 NLRB No. 107 (2021), an employer received reports that one of its employees made racially offensive comments and engaged in other disrespectful behavior. The employer began an investigation which included interviewing employees. During those interviews, a representative for the employer told each employee “to keep in mind that their interview conversation was confidential, to keep the conversation confidential, including from supervisors and other employees, and to decline to answer if others asked about the conversation.”

Based on the results of the investigation, the employer terminated the employee who made the offensive comments. The union representing the employee subsequently filed an unfair labor practice charge alleging, among other things, that the employer violated the NLRA by instructing employees to keep their interviews confidential.

Initially, an Administrative Law Judge (“ALJ”) found in favor of the union. As to the confidentiality directives, the ALJ held the employer unlawfully interfered with employees’ “right to discuss a workplace disciplinary matter.” The ALJ emphasized that the employer did not expressly advise the employees that they could discuss the interviews once the investigation ended. The employer appealed the ALJ’s decision to the NLRB.

In its decision, the NLRB reversed the ALJ and held the employer’s confidentiality directives were lawful. The NLRB relied on its recent decision in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), which overruled prior holdings prohibiting employers from restricting discussion of ongoing investigations unless they could make “a particularized showing of a substantial and legitimate business justification.” Instead, the NLRB held that investigative confidentiality rules, that by their terms apply only for the duration of any investigation, are categorically lawful.

In support of its finding, the NLRB noted that no evidence or allegation existed that: (1) the employer’s directives were given pursuant to a general company policy or rule; (2) the directives applied to anyone other than the employees interviewed during the investigation; or (3) the directives prevented those employees, or any other employees, from discussing the events giving rise to the investigation. Notably, the NLRB disagreed with the ALJ’s conclusion that the employer had to provide an express statement that employees could talk with others about the interviews once the investigation ended. Under the circumstances, the NLRB found that the employees would have reasonably understood that the confidentiality instruction lasted only through the duration of the investigation.

The NLRB’s decision in Alcoa Corp. reinforces employers’ ability to provide reasonable confidentiality directives to employees that interviewed as part of an internal investigation. In doing so, employers should not restrict employees’ ability to discuss the events giving rise to the investigation, or their ability to discuss the interviews once the investigation has ended. When conducting workplace investigations, employers should consider consulting legal counsel for advice on conducting them effectively while avoiding potential claims by employees or their unions.

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

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To Pay or Not to Pay: DOL’s Opinion On Employee Travel and Training Time

By Lauren M. Drabic*

The Department of Labor’s Wage and Hour Division (“WHD”), recently issued two opinion letters interpreting the Fair Labor Standards Act’s (“FLSA”) compensation requirements for work-related travel and voluntary training hours. Specifically, the WHD examined three work-related travel scenarios for a construction company’s non-exempt foremen and laborers, and six voluntary training or continuing education scenarios for a hospice care provider’s non-exempt employee. This article summarizes the WHD’s opinion letters to help employers gain a better understanding of their FLSA obligations in comparable scenarios.

Work-Related Travel 

In its recent opinion letter, the WHD addressed the following scenarios:

1. Local Job Site: The foremen of a construction company must first retrieve a company truck from the employer’s principal place of business, drive it to a local job site, and then return the truck at the end of the day.
   
   
2. Remote Job Site (1.5 – 4 hours of travel time): The employer pays for hotel accommodations and per-diem meal stipends for employees working at the job site. Each foreman retrieves a company truck from the employer’s principal place of business at the beginning of the job, drives it to the job site, and returns it at the end of the job. Laborers can drive their personal vehicles to and from the job site at the beginning and end of the job; or they can drive their personal vehicles to the principal place of business and ride to and from the job site with the foremen.
   
   
3. Remote Job Site (1.5 – 4 hours of travel time): Same facts of the second scenario except the laborers choose to travel to and from the job site each day instead of staying at the hotel.

Generally, the FLSA requires employers to compensate employees for time suffered or permitted to work. Under the FLSA, travel time between home and work, typically, is not compensable. However, time spent traveling between an employer-designated reporting place to a separate work location could fall within the definition of compensable working hours. In Integrity Staffing Solution, Inc. v. Busk, the Supreme Court clarified employer FLSA obligations for preliminary and postliminary travel requirements. According to Busk, employees’ preliminary or postliminary travel is not compensable simply because the employer requires it. The U.S. Supreme Court stated that travel time is compensable if the purpose of the travel is “integral and indispensable to the [employee’s] principal activities,” meaning the activity must be:

1) “an intrinsic element” of the employee’s principal activities; and

2) one the employee “cannot dispense [with] if he is to perform his principal activities.”

Integrity Staffing Solution, Inc. v. Busk, 135 S. Ct. 513, 518-19 (2014).

The WHD concluded that in each of the three scenarios, the foremen’s travel time to and from the employer’s principal place of business with the company truck is both integral and indispensable to their principal activities because (1) the employer mandates the pickup and return of the company truck as part of the foremen’s job responsibilities; and (2) the principal activities at the construction site require the company truck. Accordingly, the foremen’s travel time in the company truck to and from the employer’s principal place of business is compensable travel time under the FLSA regardless of jobsite location. 

Employer compensation requirements under the FLSA for employee travel time to remote job sites in another city depend on when and how employees travel. If an employee’s travel time is for a special one-day assignment, then the travel is compensable worktime. In these situations, the FLSA permits employers to account for the actual travel time or the average commute time that the employee would have used to travel to their usual work site and deduct it from the compensable travel time. Similarly, if an employer offers transportation but the employee chooses to utilize their own transportation, the employer can calculate compensable travel time with either (1) the amount of time the employee spent traveling; or (2) the amount of time that would have accrued using the employer’s offered transportation. If the travel keeps an employee away from home overnight, then travel that occurs during the employee’s normal working hours, even during typical nonwork days, is compensable work time because the travel is in place of the employee’s normal duties. On the other hand, travel that occurs after the employer relieves the employee for long enough “to use the time effectively for [the employee’s] own purposes” is not compensable, even if the employee uses the time to travel to an employer-provided lodging accommodation or to the employee’s home multiple hours away. 29 C.F.R. § 785.16(a).

Applying these principles to the second scenario, the WHD concluded that the laborer’s travel time to a remote jobsite is not compensable under the FLSA, unless the travel occurs during the laborer’s normal working hours. Further, the FLSA considers the travel time occurring between the jobsite and the hotel at the beginning or the end of the workday as part of the everyday commute, which is not compensable travel time. Additionally, since laborers have the option to travel to and from the job site with the foremen, the employer may choose to calculate the laborer’s compensable travel time using either the time that would have accrued if the laborer rode with the foremen or the laborers actual compensable travel time.

The WHD reached the same conclusion for the laborer’s travel time in the third scenario. When a laborer chooses to forego the hotel accommodation and drive between the remote job site and their home each day, the laborer is traveling during their personal time after the employer has relieved the laborer for the day. Therefore, the laborer’s travel time is not compensable under the FLSA.

Voluntary Training Time 

The WHD, in its recently issued opinion letter, states that according to the FLSA, employee “attendance at lectures, meetings, training programs and similar activities” is not compensable working time if it meets all four of the following criteria:

(a) Attendance is outside of the employee’s regular working hours;

(b) Attendance is voluntary;

(c) The course, lecture, or meeting does not directly relate to the employee’s job; and

(d) The employee does not perform any productive work during such attendance.

29 C.F.R. 987 § 785.27. Generally, training time that fails to meet any one of the above four criteria is compensable work time. However, the WHD recognizes two “special situation” exceptions to this general rule even when the training directly relates to the employee’s job. If an employee attends (1) a course offered by an independent bona fide institution of learning related to the employee’s job; or (2) an independent school, college or independent trade school to take courses related to the employee’s job, that time is not compensable for FLSA purposes so long as the other three criteria apply. If an employer mandates training, if the training (voluntary or not) occurs during regular working hours, or the employee performs productive work for the employee’s job duties during the training, then the training is compensable as work time. Employers may, however, establish policies prohibiting employees from participating in training courses during regular working hours.

In each of the following scenarios, the WHD assumed that employee attendance was voluntary, and that the employee did not perform any productive work. 

Scenario 1: A nurse participates in an on-demand webinar after working hours that directly relates to the nurse’s job and counts towards professional licensing requirements. The WHD concluded that this scenario is exempt as a special situation for a course offered by an independent bona fide institution of learning related to the employee’s job. Thus, the voluntary training time is not compensable. The WHD also noted that the special exception applies regardless of whether the course is offered by the employer or by a third party.

Scenario 2: An accounting clerk participates in an on-demand webinar after working hours that directly relates to the clerk’s job but has no continuing education component. The WHD stated that it did not have sufficient facts to issue an opinion because it could not determine whether an independent bona fide institution offered the training course. If an independent bona fide institution of learning offered the training course, the employee’s time is exempt as a special situation. Otherwise, the training is compensable for FLSA purposes.

Scenario 3: An accounting clerk participates in an on-demand webinar during working hours that directly relates to the clerk’s job but has no continuing education component. The WHD concluded this is compensable training time because the training takes place during working hours.

Scenario 4: An accounting clerk participates in an on-demand webinar during working hours that does not directly relate to the clerk’s job and has no continuing education component. The WHD concluded this is compensable training time because the training takes place during working hours.

Scenario 5: A nurse participates in an on-demand webinar during working hours that directly relates to the nurse’s job and counts toward professional licensing requirements. The WHD concluded this is compensable training time because the training takes place during working hours.

Scenario 6: A nurse participates in an out-of-state weekend conference that has some topics relating directly to the nurse’s job and professional licensing requirements and some topics that don’t. Travel time to the conference occurs during some of the nurse’s normal work hours, but the conference occurs outside of the nurse’s normal work schedule. The WHD concluded that the training time is exempt as a special situation and not compensable time. Additionally, the WHD stated that since the conference is not compensable work hours, travel to and from the conference is personal non-compensable travel time. 

While the above referenced opinion letters provide some helpful interpretation of employer requirements, they are not the law. If you have questions about your obligations, please contact counsel, as even small FLSA compliance errors can create significant liability.

*Lauren M. Drabic regularly advises clients on labor and employment matters, including FLSA compliance. If you have questions about wage and hour issues, please contact Lauren at lmd@zrlaw.com or (216) 696-4441.

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Z&R SHORTS

Please join Z&R in congratulating Jzinae N. Jackson

Z&R is proud to congratulate Jzinae N. Jackson, a Stokes Scholar Alumni, on joining the Cleveland Metropolitan Bar Association’s Louis Stokes Scholars Advisory Committee, which is committed to expanding diversity in the legal profession. To learn more about the Stokes Scholars Program and to read a recent feature on Jzinae by Court News Ohio, please click here.

Upcoming Speaking Engagements

June 2, 2021
Ryan C. Spitzer presents “CBD Products, Hemp and Employee Positive Drug Tests” for the Ohio Municipal Attorneys Association. Registration information for this webinar can be found via the following link: https://www.anymeeting.com/AccountManager/RegEv.aspx?PIID=E053DC80824F3E  

June 26, 2021
Jonathan J. Downes presents “Budgets, Revenues, Expenditures – Oh My!” at the 2021 Ohio Prosecuting Attorneys Association Summer Workshop. Information regarding the OPAA Summer Workshop can be found via the following link: http://www.ohiopa.org/training/summer2021.html  

September 14, 2021
Jonathan J. Downes presents “Bargaining for Results: Achieving Agreement while Maintaining Flexibility for Management” for the Ohio Association of Chiefs of Police in Hilliard, Ohio. Information regarding this full-day workshop can be found via the following link: https://oacp.org/bargaining-results2021/

COVID-19 Alert: EEOC Addresses Whether Employers May Require Employees to Get a Vaccine

By David R. Vance*

As individuals begin receiving COVID-19 vaccines throughout the country, many employers are wondering whether they can require their employees get a vaccine. On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 technical assistance guidance (available here) to include a new section addressing vaccines. The EEOC’s updated guidance suggests employers may require employees to get the vaccine, but it identifies multiple limitations.

Employers considering a mandatory vaccination policy should first determine whether such a policy makes sense for their organization. When making this determination, a key consideration is whether an unvaccinated employee poses a direct threat to the health or safety of individuals in the workplace. Employers answering yes to this question, like those with high-risk work environments (e.g., healthcare) or that regularly interact with high-risk individuals (e.g., the elderly), have stronger rationale for implementing a mandatory vaccine policy than employers that answer no. Employers answering no should consider encouraging employees to get the vaccine, as compared to mandating that they do so.

The updated EEOC guidance addresses the impact the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Genetic Information Nondiscrimination Act (“GINA”) may have on an employer vaccine mandate.

ADA

Getting the vaccine is not a medical examination under the ADA. However, for those employers that intend to directly administer the vaccine to their employees, or contract with a third party to do so, the pre-screening questions likely will elicit information about whether an employee has a disability. Per the EEOC, if an “employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are ‘job-related and consistent with business necessity.’”

Under the ADA, employers may institute safety measures, like vaccination mandates, that are job-related and consistent with business necessity. To apply a vaccination mandate to employees who are unable to get a vaccine due to a disability, employers must show that “an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others [in the workplace] that cannot be eliminated or reduced by reasonable accommodation.’”

The EEOC guidance does not identify accommodations that would allow employees, who due to a disability are unable to get a vaccine, to remain in workplace. Earlier this year, though, a Massachusetts federal court suggested wearing a mask was a reasonable accommodation for an employee who refused to get a mandatory flu vaccine. Other courts similarly have concluded that requiring an unvaccinated employee to wear additional personal protective equipment may be a reasonable accommodation.

Assuming a direct threat exists and a reasonable accommodation is not available, an employer can refuse to allow an unvaccinated employee into its workplace, but this does not end the inquiry. Before discharging the employee for refusing to get a vaccine, the employer must consider whether allowing the employee to work remotely or other accommodations would be reasonable. If the employee’s disability only delays the employee’s ability to get a vaccine, employers should consider other accommodations like unpaid leave before discharge. As with all accommodation requests, it is imperative that employers engage in the interactive process with any employee seeking an accommodation.

Title VII and Religion-Based Accommodations

If an employee has a sincerely held religious belief, practice, or observance preventing the employee from getting the vaccine, the employer must provide the employee a reasonable accommodation or demonstrate that the employee not getting the vaccine would place an undue hardship on the employer (i.e., more than de minimis cost or burden on the employer). Generally, employers should take employee claims of a limiting sincerely held religious belief, practice, or observance at face value. However, as explained by the EEOC, if “an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.”

GINA

Requiring an employee to get a COVID-19 vaccine does not violate GINA. However, GINA would cover pre-vaccine screening questions that elicit genetic information, including family medical history. To avoid both GINA and related ADA issues, employers should avoid administering the vaccine internally. Instead, employers with a mandatory vaccine policy should request that employees provide proof of vaccination, including a warning not to provide covered genetic information with any proof of vaccination provided.

While not addressed in the EEOC’s recent guidance, employers contemplating a vaccine mandate also should consider the following questions.

Does a collective bargaining agreement apply

Employers with unionized workforces should review their collective bargaining agreements before unilaterally implementing a mandatory vaccination requirement, as there likely will be bargaining obligations related to implementing such a requirement.

Are there any possible workers’ compensation issues

Whether an injury is work related and compensable under Ohio’s workers’ compensation laws is often very fact specific. Injuries arising from vaccinations are no different. Several Ohio courts have addressed vaccinations and focused on whether the employer required the employee to get vaccinated or simply encouraged the vaccination. In 1934, the Ohio Supreme Court held that the death of an employee following a vaccination was work-related and entitled his surviving spouse to death benefits. Spicer Mfg. Co. v. Tucker, 127 Ohio St.421, 188 N.E.2d 870 (1934). A different result occurred in Rolsen v. Walgreen Co., 8th Dist. Cuyahoga No. 104431, 2016-Ohio-8304. Rolsen filed a claim for workers’ compensation benefits after he developed cellulitis following a pneumonia vaccination. He was vaccinated during work hours at the Walgreens store where he worked by what the court suggested was one of his Walgreens coworkers. Nevertheless, the court disallowed Rolsen’s claim holding that his injury did not occur “in the course of his employment.” The court stressed that Walgreens encouraged but did not require its employees receive the vaccination. The takeaway from these decisions is that complications from an employer mandated vaccination by an employer-specified health care provider will likely result in a compensable workers’ compensation claim. Complications arising from vaccinations that are simply encouraged by employers will not be compensable injuries.

What are the practical considerations of a mandatory vaccine policy

Polls indicate that many people remain hesitant to get a vaccine. As a practical matter, employers wishing to mandate vaccinations need to consider whether they are willing to discharge strong, long-term performers who refuse to get vaccinated. In the alternative, what happens if the employer only encourages their employees to get the vaccine and an employee, client, or customer gets infected with COVID-19 in the workplace? As to this concern, Ohio recently granted employers civil immunity from COVID-19 claims (see related article here for more information).

Does it matter that the Food and Drug Administration (“FDA”) is approving vaccines under Emergency Use Authorizations

U.S. Surgeon General Jerome Adams thinks so. Emergency Use Authorization is different than full approval under FDA vaccine licensure requirements. Due, in part, to this distinction, on the same day the EEOC issued its updated guidance, Surgeon General Adams said, “[r]ight now, we are not recommending that anyone mandate a vaccine.”

Whether an employer should institute a mandatory vaccine policy, encourage employees to get a vaccine, or not address the matter varies greatly by employer and implicates a number workplace laws that employers should discuss with counsel. Vaccine or no vaccine, employers should continue to abide by applicable CDC guidance and government orders and recommendations.  

*David R. Vance, an OSBA Certified Specialist in Labor & Employment Law, regularly advises clients on COVID-19’s impact on the workplace. If you have questions about mandating vaccines or other COVID-19 related issues, please contact David at drv@zrlaw.com or (216) 696-4441.

CORONAVIRUS TESTING: The Equal Employment Opportunity Commission Says Employers May Test Employees for COVID-19 Before Allowing Them to Work

By Tiffany S. Henderson*

On April 24, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers about COVID-19 to include clear guidance that employers may test their employees for COVID-19 before allowing them to enter the workplace. Under the updated guidance, the EEOC explains that the Americans with Disabilities Act (“ADA”) “requires that any mandatory medical test of employees be ‘job related and consistent with business necessity.’" Since individuals with the virus “pose a direct threat to the health of others” in the workplace, mandatory testing of employees for COVID-19 before letting them come to work is job related and consistent with business necessity, as the testing allows the employer to protect its workers.

Employers that implement COVID-19 testing must still comply with ADA standards and ensure the tests they administer are reliable and accurate. The EEOC urges employers to seek guidance about safe and accurate testing standards from the Food and Drug Administration, the Center for Disease Control, and other state and local public health agencies. Employers also will need to determine how to address the potential for “false-positives or false-negatives associated with a particular test.” The EEOC reminds employers “that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.” Employers also cannot test in a discriminatory manner.

For most employers, the limited availability of testing at the individual employer level will prevent mandatory testing for the near future. In the meantime, employers should continue to emphasize appropriate workplace infection control practices like frequent handwashing, increased cleaning/sanitizing, social distancing, and other measures. Employers also may continue taking employee temperatures, so long as they do so in a confidential manner. Please remember that temperature readings and COVID-19 testing results are private, health-related information that employers must keep confidential.

Z&R has developed form policies, request forms and other guidance documents related to COVID-19 related issues. Z&R will continue to monitor the latest information governing employers. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay
• Ohio Legislature Passes Emergency COVID-19 Response Legislation
• U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice
• Loans, Unemployment Assistance, and Other Relief Under the CARES Act
• U.S. Secretary of Labor Releases Temporary Rules Implementing The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act

*Tiffany S. Henderson practices in all areas of labor and employment law. If you have questions regarding COVID-19 medical testing or related issues, please contact Tiffany at tsh@zrlaw.com or 216-696-4441.

EMPLOYMENT LAW QUARTERLY | Volume XXI, Issue iii

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• City of Toledo Joins Cincinnati, Passes Salary History Ban
• Use it or Lose it: U.S. Supreme Court Holds That Title VII Defendants Must Raise Charge-Filing Defense in a Timely Manner
• Companies Must Make Reasonable Efforts to Maintain the Confidentiality of their Trade Secrets if They Want Courts to Protect Them
• Letter of the Law: U.S. Department of Labor’s Wage and Hour Division Continues Issuing Opinion Letters
• Z&R SHORTS

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City of Toledo Joins Cincinnati, Passes Salary History Ban

By Scott H. DeHart*

The City of Toledo passed Ordinance No. 173-19, which generally prohibits Toledo employers with at least fifteen employees from seeking an applicant’s prior salary information. Toledo joins a growing number of states and municipalities that have enacted similar bans, including the City of Cincinnati in March of 2019. Accordingly, Toledo employers should determine whether they are subject to the law and, if so, implement necessary changes to existing practices to ensure compliance with the ordinance when it becomes effective on June 26, 2020.

“Prohibition on Inquiring About or Use of Salary History”
Beginning on June 26, 2020, covered employers in Toledo cannot seek, use, or otherwise rely upon an applicant’s salary history during the hiring process. Notable exceptions include discussions of salary and benefit expectations, internal transfer or promotion, “voluntary and unprompted disclosure” of salary history, and applicants governed by a collective bargaining agreement. The ordinance also requires an employer to provide an applicant the applicable pay scale for the position following an offer of employment, but only upon “reasonable request.”

Remedies and Statute of Limitations
In the event the ordinance is violated, the applicant can seek “compensatory damages, reasonable attorney’s fees, the costs of the action, and such legal and equitable relief as the court deems just and proper.” The applicant must initiate any such action within two years.

Toledo has joined a growing number of jurisdictions outlawing inquiry into an applicant’s salary history, passing an ordinance similar to that passed by the City of Cincinnati just months earlier. Given this trend, employers should expect other cities to pass similar laws. Toledo employers should begin preparations and implement necessary changes to existing practices to ensure compliance with the ordinance when it becomes effective in June 2020.

*Scott H. DeHart, who works in the Columbus office, practices in all areas of labor and employment law. If you have questions about this ordinance or about inquiry into an applicant’s salary history, please contact Scott at shd@zrlaw.com or (614) 224-4411.

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Use it or Lose it: U.S. Supreme Court Holds That Title VII Defendants Must Raise Charge-Filing Defense in a Timely Manner

By Tiffany Henderson*

Before an employee can file a lawsuit under Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination based on an employee’s race, color, religion, sex, or national origin, the employee must file a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) or the employee’s state’s equivalent of the EEOC. In Ohio, the state equivalent to the federal EEOC is the Ohio Civil Rights Commission. Generally, employees must file their Charge of Discrimination within 180 calendar days of the day the discrimination occurred or, if in a state like Ohio that has its own state agency, within 300 calendar days of the date that the discrimination occurred.

On June 3, 2019, the U.S. Supreme Court unanimously held that Title VII’s “charge-filing requirement” is not “jurisdictional,” i.e., grounds for dismissal at any point during litigation. Fort Bend County, Texas v. Davis, 139 S. Ct. 1843 (June 3, 2019). Instead, employers must raise the objection in a timely manner or they forfeit the defense. So, if an employee sues its current or former employer under Title VII, and the employee incorrectly or insufficiently filed a Charge of Discrimination with the EEOC or equivalent state agency, then the employer cannot wait until the later stages of the litigation to object on these grounds.

In Davis, an employee filed an EEOC Charge of Discrimination against her employer alleging sexual harassment and retaliation. While the EEOC processed her charge, the employer fired the employee after she did not show up to work due to a conflict with a church commitment. The employee then attempted to amend her EEOC Charge to include an allegation for religious discrimination by making a handwritten notation on her EEOC intake questionnaire. However, she did not amend her formal EEOC Charge.

After the EEOC notified the employee of her right to sue, she filed a lawsuit in federal court and asserted claims including sexual harassment, retaliation, and religious discrimination under Title VII. After litigating the case for years, the employer moved – for the first time – to dismiss the religious-discrimination claim. The employer argued that the court lacked jurisdiction over the claim because the employee failed to properly assert it in her EEOC Charge. The district court agreed and dismissed the claim. On appeal, the Fifth Circuit reversed and reinstated the claim. The U.S. Supreme Court agreed to hear the case and decide whether Title VII’s charge-filing requirement was a jurisdictional precondition that can be raised at any stage of a lawsuit or a “procedural prescription” that the employer must raise in a timely manner or risk forfeiting. The U.S. Supreme Court picked the latter.

In Davis, the U.S. Supreme Court noted that Title VII’s language regarding the charge-filing requirement focuses on a party’s procedural obligations, not a court’s jurisdiction. Accordingly, the Court held that the charge-filing requirement is not “jurisdictional,” and thus an employer forfeits the objection if it does not raise it in a timely manner. The Court contrasted the “harsh consequences” of jurisdictional objections, which can dissolve a claim at any point in the litigation (even in front of the U.S. Supreme Court), against a party’s argument that the other party failed to comply with a claim-processing rule, which the objecting party forfeits if it “waits too long to raise the point.” The U.S. Supreme Court never specified what amounts to waiting “too long to raise the point.”

The U.S. Supreme Court also confirmed that the EEOC charge-filing requirement is mandatory. Accordingly, upon an employer’s timely objection, a Title VII plaintiff’s failure to abide by the requirement will prove fatal to their lawsuit. Employers who are facing a Title VII lawsuit should consult with counsel to determine whether this procedural defense may exist.

*Tiffany Henderson practices in all areas of labor and employment law. If you have questions regarding the U.S. Supreme Court’s Davis decision or any other employment law issues, please contact Tiffany at tsh@zrlaw.com or (216) 696-4441.

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Companies Must Make Reasonable Efforts to Maintain the Confidentiality of their Trade Secrets if They Want Courts to Protect Them

By Ami J. Patel*

For information to be considered a trade secret, it must be sufficiently secret to impart economic value because of (1) its relative secrecy and (2) the owner of the information must take reasonable efforts to maintain the secrecy of the information. Recent case law serves as a reminder that to obtain trade secret protection from the courts, the second, often overlooked component of the “trade secret” rule is pivotal. In litigating trade secret misappropriation under the federal Defend Trade Secrets Act (“DTSA”) and applicable state law, it is not enough for companies to simply show the existence of a trade secret. Companies must show they took appropriate measures and had proper policies and procedures in place to protect their trade secret information.

A federal court recently reiterated this principle in Abrasic 90 Inc. v. Weldcote Metals, Inc., 364 F. Supp. 3d 888 (N.D. Ill. 2019). In Abrasic, defendant Joseph O’Mera was president and a director of the plaintiff Camel Grinding Wheels, U.S.A. (“CGW”), which produced abrasive products. In his capacity as president, O’Mera developed and oversaw various aspects of CGW’s operations, played the primary role in negotiating costs with CGW’s suppliers, and set CGW’s prices for its entire product line and approved all pricing discounts. In 2018, O’Mera left CGW to start a competing abrasives business for Weldcote Metals, Inc. (“Weldcote”). When he left, O’Mera took files containing information about CGW’s pricing, customers, and suppliers. Additional employees who also took files containing information about CGW’s pricing, customers, and suppliers, followed O’Mera to Weldcote. Further, O’Mera convinced one such employee to bring customer pricing documents from CGW’s shared drive.

CGW filed suit against its former employees and Weldcote and moved to enjoin the defendants from entering the abrasives business, from doing business with CGW’s suppliers or distributors, and from using the information at issue. The information at issue included compilations of CGW’s pricing and sales data. Notably, the court held that this type of information could be a trade secret under the law. However, the court denied CGW’s motion for a preliminary injunction under DTSA and the Illinois Trade Secrets Act, because CGW had taken “almost no measures to safeguard the information that it now maintains was invaluable to its competitors.”

According to the court, CGW could have taken the following data security measures, but did not:

1. Requiring its employees to enter into non-disclosure and confidentiality agreements. CGW failed to require those with access to its supposed trade secrets to enter into non-disclosure and confidentiality agreements. The court described this as “among the most fundamental omissions by the company.”
2. Establishing and implementing policies concerning the confidentiality of the company’s business information. CGW’s employee handbook did not have a policy regarding confidentiality beyond a “vague, generalized admonition about not discussing CGW business outside of work,” which “did not define, delineate, or specify which information was considered confidential.” The court determined this was “too broad and vague to confer meaningful protection over the information at issue.”
3. Training company employees about their obligation to keep certain categories of information confidential. In the absence of a confidentiality policy, CGW further “did nothing to train or instruct employees about their obligation to keep certain categories of information confidential.”
4. Ensuring all confidential information is returned to the company upon the cessation of employment of any employee with access to such information. Although CGW instructed departing employees to return CGW “property,” these employees “were not asked whether they possessed any of the information at issue or instructed to return or delete such information.” The court noted that merely requiring that departing employees return company property is not enough, and that company precautions “must go beyond normal business practices for the information to qualify for trade secret protection.”
5. Ensuring that employees with responsibility for maintaining the security of sensitive company data and information are trained in data security and IT management. CGW’s IT management person had “no training in data security (or virtually any other area of IT management) and was ill-equipped to identify, much less champion, sound data security practices.”
6. Ensuring that the company maintains and implements comprehensive data security policies and practices. CGW’s IT management practices were “grossly inadequate to prevent unauthorized access and use of the company’s purportedly valuable proprietary information.” Further, CGW’s IT person recommended to the company internally that it “take some basic steps to improve the security of the information at issue,” such as segregating access to documents on a need-to-know basis and adopting an “acceptable device use policy.” CGW, however, failed to implement “even these modest suggestions, further undermining its trade secret claim.”
7. Restricting access to sensitive company information to employees on a need-to-know basis, such as assigning employees passwords to access the information. The entire contents of CGW’s shared drive were accessible to employees who did not need access to this information. Further, the IT management person always granted any request for access that was made of her and she “did not make any meaningful inquiry into whether the person needed access to the information.”
8. Differentiating access and protective measures with respect to sensitive company information from those imposed with respect to non-sensitive company information. The court disfavored the manner in which the information was stored on CGW’s shared drive. CGW provided all employees with the same password to obtain access to the shared drive. Files were not encrypted, and there were no restrictions on employees’ ability to access, save, copy, print, or email the information. Further, there was no evidence that employees needed the authorization of the IT management person to obtain access to the shared drive. Rather, any employee could have enabled their own workstation to access the shared drive with minimal knowledge or assistance. Moreover, the documents on the shared drive were not segregated from other files that were not trade secrets and the documents were not labeled in any manner as “confidential” or “proprietary.” The court noted that it “takes virtually no effort and little sophistication to include a heading on an Excel spreadsheet identifying a document as ‘proprietary’ or ‘confidential,’ yet CGW failed even to do that much with respect to the information at issue.”

The lesson from Abrasic is clear: to claim information is a statutory trade secret, companies need to employ reasonable security measures to protect that information. While companies need not implement each and every measure discussed above, it is imperative that they take heed of these measures.

*Ami J. Patel practices in all areas of labor and employment law. If you have questions regarding protecting your company’s trade secret information or any other employment law issues, please contact Ami at ajp@zrlaw.com or (216) 696-4441.

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Letter of the Law: U.S. Department of Labor’s Wage and Hour Division Continues Issuing Opinion Letters

By Michele L. Jakubs*

In 2018, the U.S. Department of Labor's Wage and Hour Division (“DOL”) reinitiated its practice of issuing opinion letters. The DOL’s opinion letters offer official guidance addressing how a particular law, such as the Family and Medical Leave Act (“FMLA”) and Fair Labor Standards Act (“FLSA”), applies in specific circumstances. These letters also serve as important guidance for other employers faced with similar circumstances and compliance concerns. Although the letters are not binding precedent, they can help bolster arguments made by employers.

Since 2018, the DOL has released a steady stream of opinion letters (available through this link). Just this year, the DOL already has issued over a dozen opinion letters offering guidance on specific issues under the FMLA and the FLSA. A summary of some important opinion letters is provided below.

Opinion Letter FMLA 2019-1-A (available here)

This opinion letter addresses whether an employer may permit employees to exhaust some or all available paid sick (or other) leave prior to designating leave as FMLA qualifying, even when the leave clearly is FMLA qualifying. The DOL’s answer is a resounding no.

The individual submitting this request for an opinion stated that employers often justify this practice pursuant to language in the FMLA regulations, 29 C.F.R. §825.700, which in relevant part states that “[a]n employer must observe any employment benefit or program that provides greater family and medical leave rights to employees than the rights provided by the FMLA.” However, the DOL’s response is clear that an employer may not delay the designation of FMLA-qualifying leave as FMLA leave. “Once an employee communicates a need to take leave for a FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.” Further, pursuant to the FMLA regulations, “once the employer has enough information to make this determination, the employer must, absent extenuating circumstances, provide notice of the designation within five business days, and may not delay designating leave as FMLA-qualifying, even if the employee would prefer the delay.” 29 C.F.R. §825.300(d)(1).

The DOL reconciles the language in 29 C.F.R. §825.700, i.e., the regulation cited in the underlying request for an opinion, with the opinion set forth in its letter, stating “[o]f course an employer must observe any employment benefit or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA, [b]ut providing such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26 week) entitlement. [If] an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.”

This opinion may create additional confusion for employers in the Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. In 2014, the Ninth Circuit Court of Appeals concluded that an employee can decline FMLA leave and use paid leave instead, even though the underlying reason for leave would have been FMLA-qualifying. Escriba v. Foster Poultry Farms, 743 F.3d 123, 1244 (9th Cir. 2014). In issuing this opinion letter, the DOL noted its disagreement with the Escriba decision in a footnote.

Opinion Letter FLSA 2019-2 (available here)

This opinion letter addresses whether time spent participating in an employer’s optional volunteer program constitutes “hours worked” requiring compensation under the FLSA. The answer is no, unless such time is forced.

The program at issue in the opinion letter is an employer-sponsored optional community service program for employees, where employees can choose to engage in certain volunteer activities. Under the program, the employer compensates employees for time they spend on volunteer activities during normal working hours or while they are required to be on the employer’s premises, but activities which take place outside of normal working hours are not compensated. At the end of the year, the employer awards a monetary bonus to certain participating employees based on the total overall hours each employee volunteered.

Relying on a previous opinion letter concerning volunteer activities, the DOL notes that “[a]n employer may use an employee’s time spent volunteering as a factor in calculating whether to pay the employee a bonus, without incurring an obligation to treat that time as hours worked, so long as (1) volunteering is optional, (2) not volunteering will have no adverse effect on the employee, and (3) the employee is not guaranteed a bonus for volunteering.” FLSA 2006-4.

The DOL concluded that participation in the program at issue does not count as hours worked under the FLSA because: (1) the employer does not require participation in the program nor control or direct volunteer work; (2) employees do not appear to suffer adverse employment consequences if they do not participate in the program; and (3) the employer does not guarantee participating employees a bonus for volunteering.

The DOL also confirmed that an employer can use a mobile device application to track a participating employee’s time spent volunteering, provided that this application is not used to direct or control the volunteering activities.

Opinion Letter FLSA 2019-9 (available here)

This opinion letter addresses whether an organization used permissible rounding practices when calculating its employees’ hours worked. The organization at issue used payroll software to calculate its employees’ hours worked and wages. Based on clock in and clock out times, the software would convert an employee’s hours worked each day into a numerical figure that would be rounded based upon whether the third decimal fell below .005. For example, if the software initially calculated an employee’s hours worked in a single day to be 6.865, that figure would be rounded up to 6.87 for purposes of calculating the employee’s pay for that day. However, if the initial figure was 6.864, then the software would use 6.86 for purposes of calculating the employee’s pay for the day.

The DOL found that this rounding practice was consistent with the FLSA’s regulations. The DOL explained it has been its “policy to accept rounding to the nearest five minutes, one-tenth of an hour, one-quarter of an hour, or one-half hour as long as the rounding averages out so that the employees are compensated for all the time they actually work.” The specific rounding practice at issue was neutral on its face and appeared to average out. Therefore, the DOL opined that, consistent with the FLSA’s regulations, the rounding practice “will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” 29 C.F.R. § 785.48(b)

Conclusion

The key takeaways from the opinion letters summarized above are the following:

• Employers may not permit employees to exhaust some or all available paid sick (or other) leave prior to designating leave as FMLA-qualifying. When an employer determines that leave is for a FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.
• Employers will not incur an obligation to treat an employee’s time spent volunteering as “hours worked” under the FLSA, so long as such time is not forced, i.e., (1) volunteering is optional, (2) not volunteering will have no adverse effect on the employee, and (3) the employee is not guaranteed a bonus for volunteering.
• In determining employees’ hours worked, employers may use rounding practices, so long as those practices are neutral and average out so that the employer compensates its employees for all the time its employees actually worked.

The DOL’s opinion letters provide valuable insight regarding the intricacies of the FMLA and the FLSA and how these laws apply under specific circumstances. The attorneys at Zashin & Rich regularly provide guidance to employers regarding the nuances of the FMLA and the FLSA and counsel employers on such policies and procedures. Employers should consult with counsel to assess whether their FMLA and FLSA policies and procedures remain compliant with these ever-evolving laws.

*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. If you have questions regarding the DOL’s opinion letters, or the FMLA or the FLSA, please contact Michele at mlj@zrlaw.com or (216) 696-4441.

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Z&R SHORTS

Please join Z&R in welcoming Tiffany Henderson and Ryan Spitzer to its Employment and Labor Groups

Tiffany Henderson practices out of Z&R’s Cleveland office. Her practice encompasses all areas of private and public sector labor and employment law. Tiffany graduated from Bowling Green State University and received her Master of Public Administration and her Juris Doctor (cum laude) from Cleveland State University and Cleveland-Marshall College of Law, respectively. As a law student, Tiffany served as Student Bar Association President, Director of Pre-Law and Recording Secretary for the Black Law Students Association, and was a member of the mock trial advocacy team. Tiffany also received the Norman S. Minor Scholarship and Cleveland-Marshall Law Alumni Association Life Member Scholarship. Prior to joining Z&R, Tiffany served as an Assistant Attorney General at the Ohio Attorney General’s Office. Before practicing law, Tiffany worked with PPG in Cleveland, Ohio as an Information Technology Systems Analyst.

Ryan Spitzer practices out of Z&R’s Columbus office and represents public and private sector employers in all aspects of labor and employment law. Ryan graduated from the Ohio State University and earned his law degree cum laude from Capital University with a concentration in civil litigation. As a law student, Ryan participated in the Fall National Moot Court Team and was an extern for Chief Justice Maureen O’Connor at the Ohio Supreme Court. Prior to joining Z&R, Ryan worked for the Miami County Prosecuting Attorney’s Office where he handled both civil and criminal matters and was appointed as a Special Assistant Prosecuting Attorney in multiple counties.

Congratulations to Stephen Zashin, Helena Oroz, and Jeffrey Wedel on their Recent Win before the Ohio Supreme Court

Z&R congratulates Stephen Zashin, Helena Oroz, and Jeff Wedel on their recent success before the Ohio Supreme Court in Gembarski v. PartsSource, Inc., 2019-Ohio-3231 (Aug. 14, 2019). The case is a significant win for employers. The Ohio Supreme Court held that when a single named plaintiff files an action on behalf of a class of employees, but is not bound by an arbitration agreement to which other members of the putative class action may be bound, the employer need not raise an arbitration defense at the pleading stage. Instead, the employer may wait and raise such a defense at the class-certification stage of the proceedings.

Upcoming Speaking Engagements

November 4, 2019
Jonathan J. Downes presents “Keys to Successful Negotiations” and “Negotiation Practice on Specific Issues” at the State Employment Relation Board (SERB) Advanced Negotiations Seminar. The seminar will take place at the State Library in Columbus, Ohio.

December 4, 2019
George S. Crisci will be part of a panel presentation entitled “Labor Law Hot Topics” at the Ohio State Bar Association’s National Labor Relation Board (NLRB) Updates seminar. The panel presentation will take place at the Ohio State Bar Association in Columbus, Ohio.

Attention EEO-1 Filers: The EEOC Opened its Online-Filing System for “Component 2 Data” and Filings Are Due by September 30, 2019

By Jzinae N. Jackson*

It’s “go” time, EEO-1 filers. On July 15, 2019, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it has opened its long-awaited online-filing system to capture 2017 and 2018 “Component 2 Data” for the revised Employer Information Report, commonly known as the EEO-1 form. The new Component 2 Data will track an employee’s general compensation and work hours, correlated to the employee’s race/ethnicity, gender, and job category. While the EEOC has tracked employees' race/ethnicity, gender, and job-category data since 1966, this is the first time the EEOC will track pay and work-hours data.

As previously reported by Z&R, the EEOC requires certain “covered employers” to file EEO-1 forms annually. Covered employers who filed a non-pay-related EEO-1 form for 2017 or 2018 must supplement such filings with relevant Component 2 Data by September 30, 2019, via the EEOC’s online portal. On July 15, 2019, the EEOC sent portal-log-in information to covered employees by USPS letter and email.

Employers should contact counsel with any questions about submitting the new Component 2 Data.

*Jzinae N. Jackson practices in all areas of labor and employment law. If you have questions regarding the EEO-1 form, please contact Jzinae (jnjzrlaw.com) at (216) 696-4441.

EMPLOYMENT LAW QUARTERLY | Volume XXI, Issue ii

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• Ohio Employment Discrimination Complaints on the Rise
• Say What You Mean and Mean What You Say: U.S. Supreme Court Rejects Class Arbitration in Ambiguous Agreement
• City of Cincinnati Passes Salary History Ban
• Not Enough Time? Federal Court Reinstates EEO-1 Pay Data Requirements with a September 30, 2019 Deadline
• Z&R SHORTS

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Ohio Employment Discrimination Complaints on the Rise

By Lisa A. Kainec*

The Ohio Civil Rights Commission’s (“OCRC”) 2018 annual report revealed the number of discrimination complaints (aka Charges of Discrimination) before the OCRC increased by 4.4 percent from the previous year. This report covers the fiscal year from July 1, 2017 to June 30, 2018. In this time period, individuals filed 6,098 charges with the OCRC compared to 5,840 charges filed the previous fiscal year. Of these, the OCRC closed 3,674 cases. Notably, investigators found no probable cause in 2,181. The OCRC closed the remaining 1,493 cases for a number of other reasons, including party settlement, complainants’ withdrawal of their charges, and failure of complainants to return their notarized Charge of Discrimination.

Race discrimination claims account for the largest number of charges followed by retaliation, disability, and sex, respectively – all of which increased from the previous year. An OCRC representative explained that, while they can make educated guesses when looking at data over a decade, it is difficult to understand changes in filings and closures from year-to-year. For example, employment discrimination complaints can increase during recessions due to economic factors influencing employees’ work environments. However, it is much more difficult to analyze trends when “it’s so fresh.”

Given this recent increase in discrimination complaints, it is important that employers ensure their supervisors and employees receive effective training to prevent workplace discrimination, retaliation, and other illegal conduct. The attorneys at Zashin & Rich regularly provide workplace training. Employers also should consult with counsel to assess whether their workplace policies and procedures provide them sufficient protection.

*Lisa A. Kainec, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. If you have questions regarding responding to a Charge of Discrimination, please contact Lisa (lak@zrlaw.com) at (216) 696-4441.

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Say What You Mean and Mean What You Say: U.S. Supreme Court Rejects Class Arbitration in Ambiguous Agreement

By Stephen S. Zashin*

On April 24, 2019, the U.S. Supreme Court held an ambiguous arbitration agreement could not mean that the parties agreed to class arbitration. In doing so, the Court held that shifting from individual to class arbitration is a fundamental change that sacrifices the principal advantage of arbitration and greatly increases risks to defendants. See Lamps Plus, Inc. v. Varela, No. 17-988, 203 L. Ed. 636, 2019 U.S. LEXIS 2943 (Apr. 24, 2019). The Supreme Court overturned the Ninth Circuit’s decision compelling an employer to arbitrate claims on a classwide rather than an individual basis. Because of the Supreme Court’s decision, employees may not seek class arbitration unless the arbitration agreement explicitly authorizes class arbitration. This is a major win for employers but also a cautionary tale regarding the importance of ensuring that arbitration agreements clearly and completely express the intent of the parties.

In Lamps Plus, a hacker gained access to information of approximately 1,300 employees. After one employee learned about a fraudulent income tax return filed in his name, he filed a class action against his employer due to the data breach. Relying on an arbitration agreement, the employer sought arbitration on an individual rather than a classwide basis. The arbitration agreement provided: “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to my employment.” The District Court rejected the employer’s request for individual arbitration and authorized class arbitration. The Ninth Circuit affirmed the District Court’s ruling on the basis of state contract law, which provides any ambiguity in a contract should be construed against the drafter. However, the Supreme Court found this rule unavailing.

The Supreme Court’s decision to overrule class arbitration aligns with prior cases involving class arbitration. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) (holding mandatory employment arbitration agreements that require employees to waive the right to class litigation do not violate the National Labor Relations Act); AT&T Mobility LLC v. Concepcion, 563 U. S. 333 (2011) (finding class arbitration sacrifices arbitration’s informality and convenience); Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662 (2010) (holding parties may not compel class arbitration when an agreement is silent on the matter).
Emphasizing the difference between individual and class arbitration, the Supreme Court described the need for strict consent to class arbitration and giving effect to the parties’ intent. The Supreme Court explained class arbitration makes the process slower, more costly, introduces new risks and costs, and raises due process concerns by deciding absent class members’ rights. On the other hand, individual arbitration allows parties to avoid litigation with the speed, simplicity, and inexpensiveness of arbitration. The Supreme Court further noted that these crucial differences are the “reason to doubt the parties’ mutual consent to resolve disputes through classwide arbitration.”

In light of very favorable decisions from the Supreme Court, employers should consider whether to implement mandatory arbitration programs. Any such program should clearly communicate the exclusion of class arbitration. Employers with an arbitration agreement currently in place should review those agreements to verify that the agreements explicitly express their intent as to class action claims.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law and is the head of the firm’s Employment and Labor Groups. Stephen has drafted and litigated the enforcement of arbitration agreements for over 20 years. If you have questions regarding developing an arbitration program, class arbitration, or any other arbitration issues, please contact Stephen (ssz@zrlaw.com) at (216) 696-4441.

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City of Cincinnati Passes Salary History Ban

By Drew C. Piersall*

On March 13, 2019, the City of Cincinnati passed Ordinance No. 83-2019, which generally prohibits Cincinnati employers with at least fifteen employees from seeking an applicant’s prior salary information. Cincinnati joins a growing number of states and municipalities that have enacted similar bans. Accordingly, Cincinnati employers should determine whether they are subject to the law and, if so, implement necessary changes to existing practices to ensure compliance when it becomes effective on March 13, 2020.

“Prohibited Salary History Inquiry and Use”

The ordinance specifically prohibits employers from undertaking any of the following actions:

(1) Inquiring about the salary history of an applicant for employment;

(2) Screening job applicants based on their current or prior wages, benefits, other compensation, or salary histories, including requiring that an applicant’s prior wages, benefits, other compensation or salary history satisfy minimum or maximum criteria;

(3) Relying on the salary history of an applicant in deciding whether to offer employment to an applicant, or in determining the salary, benefits, or other compensation for such applicant during the hiring process, including the negotiation of an employment contract; or

(4) Refusing to hire or otherwise disfavoring, injuring, or retaliating against an applicant for not disclosing his or her salary history to an employer.

See Ord. 804-03(a)(1)-(4).

Essentially, effective March 13, 2020, Cincinnati employers will be unable to seek, use, or otherwise rely upon an applicant’s salary history during the hiring process. Notably, the ordinance also requires an employer, “upon reasonable request,” to provide an applicant the pay scale applicable to the position for which the applicant is applying once the employer has made an offer of employment. However, the ordinance makes no reference to inquiring into an applicant’s salary expectations. Regardless, this ordinance will have a significant impact on the typical hiring and salary negotiation process.

Exceptions to the Ordinance

The ordinance includes various exceptions that may apply to permit an employer to seek, use, or otherwise rely upon an applicant’s salary history during the hiring process. See Ord. 804-03(d)(1)-(8). For example, the ordinance does not apply to internal transfers and promotions, an applicant’s voluntary disclosure of salary history, “salary, benefits, or other compensation... determined pursuant to procedures established by collective bargaining,” and certain other limited circumstances.

Remedies and Statute of Limitations

In the event the ordinance is violated, the applicant can enforce the ordinance and seek “compensatory damages, reasonable attorney’s fees, the costs of the action, and such legal and equitable relief as the court deems just and proper.” A plaintiff must initiate such action within two years.

Conclusion

Cincinnati has joined a growing number of jurisdictions outlawing inquiry into an applicant’s salary history. Cincinnati’s new law also requires employers to provide the applicable pay scale in certain circumstances. Cincinnati employers should begin preparations and implement necessary changes to existing practices to ensure compliance with the ordinance when it becomes effective.

*Drew C. Piersall, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. If you have questions about this ordinance or inquiries into an applicant’s salary history, please contact Drew (dcp@zrlaw.com) at (614) 224-4411.

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Not Enough Time? Federal Court Reinstates EEO-1 Pay Data Requirements with a September 30, 2019 Deadline

By Jzinae N. Jackson*

The U.S. Equal Employment Opportunity Commission (“EEOC”) requires certain private employers (see below) to report demographic information about their workforces on an Employer Information Report, commonly referred to as an EEO-1 form. Following a revision to the EEO-1, employers now must report employee compensation, categorized by sex, race, ethnicity, and other demographics. Covered employers must provide this pay-related information for calendar years 2017 and 2018 to the EEOC by September 30, 2019.

In early 2016, the EEOC announced the revised EEO-1 form with the pay-data requirements. A detailed discussion of the revised EEO-1 form can be found here. After initially approving the new EEO-1 form, the Office of Management and Budget (“OMB”) announced a stay and review of the revised EEO-1 form. However, on March 4, 2019, a federal court vacated the OMB’s stay and reinstated the revised EEO-1 form, including the new pay-data requirements.

The following types of employers must complete and submit the revised EEO-1 form:

• Employers who are subject to Title VII of the Civil Rights Act (“Title VII”) and employ 100 or more employees;
• Employers who are subject to Title VII and employ less than 100 employees, but who are owned or affiliated with another company such that they constitute a single enterprise, and the entire enterprise employs 100 or more employees; and
• Certain federal contractors, including those with 50 or more employees and at least $50,000 in government contracts.

Covered employers must submit the non-pay-related information covered in the EEO-1 form by May 31, 2019. Currently, employers cannot submit the pay-related information. The EEOC anticipates that it will begin to accept 2017 and 2018 pay data in July and will notify employers of the date that the pay survey will open. However, covered employers should begin preparing this information now, as they will only have until September 30, 2019 to submit the pay data once the full survey opens. Employers should contact counsel with any questions about the revised EEO-1 form and the information they are required to submit.

*Jzinae N. Jackson practices in all areas of labor and employment law. If you have questions regarding the EEO-1 form, please contact Jzinae (jnj@zrlaw.com) at (216) 696-4441.

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Z&R SHORTS

Please join Z&R in welcoming Jzinae Jackson to its Employment and Labor Groups

Jzinae Jackson’s practice encompasses all areas of labor and employment law. Jzinae graduated cum laude from Capital University. She earned her law degree from Cleveland Marshall College of Law, where she was selected as the Dean’s Learn Law. Live Justice. Award Recipient. As a law student, Jzinae participated in an externship with Cleveland Marshall’s Civil Litigation Clinic, where she advised clients on civil protection orders and unemployment claims, and counseled consumers and businesses through the dispute resolution process. Outside the clinic, Jzinae was a member of Cleveland Marshall’s Trial Advocacy Team, where she competed in a number of competitions. Independently, Jzinae competed in the 2017 Ohio Attorney General’s Public Service Mock Trial Competition, where she was awarded Best Advocate. Additionally, she served as the 2017 Midwest Regional Director of Thurgood Marshall Mock Trial Competition of the National Black Law Students Association.

Upcoming Speaking Engagements

Tuesday, June 4, 2019
Jonathan J. Downes presents “Collective Bargaining for Public Employers” at the Ohio Association of Chiefs of Police meeting at the Hilliard Police Department Training Facility in Hilliard, Ohio.

Thursday, June 6, 2019
Jonathan J. Downes presents at the SERB Advanced Negotiations Seminar at State Library in Columbus, Ohio.

Friday, June 14, 2019
George S. Crisci presents “Independent Worker: A Legal Concept Whose Time Has Come?” at the 71st Annual Meeting of the Labor and Employment Relations Association (LERA) at the Westin Cleveland Downtown in Cleveland, Ohio.

Friday, June 21, 2019
Scott H. DeHart presents “FLSA Legal Update” at the Ohio Public Employer Labor Relations Association’s (OHPELRA) Summer Workshop at the Liberty Center in Lancaster, Ohio.

EMPLOYMENT LAW QUARTERLY | Volume XIX, Issue i

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• Akron United: The Rubber City Passes New Law to Combat Discrimination
• The Saga Continues: Sixth Circuit Rules Employment-Related Class Action Waivers In Arbitration Agreements Are Unenforceable
• More Data, More Problems? EEO-1 Now Requires Reporting of Summary Pay and Hours Worked Data
• Top Five Handbook Policies for Employers to Review in 2017
• Substance Over Form: Employers Need the Right Evidence to Combat Disability Discrimination Claims
• Z&R SHORTS

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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.

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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.

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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.

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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.

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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.

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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.