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Employers Struggle with “Bring Your Gun to Work” Laws
By David R. Vance*
Given the recent number of large-scale acts of violence, many
employers are concerned about workplace safety and limiting access to
firearms on company property. In an effort to prevent workplace
violence, employers have increased security and banned weapons. In many
states, however, “bring your gun to work” laws limit employers from
banning guns in their parking lots. Employers affected by these laws are
responding in a number of ways, including lobbying for their rights to
ban guns on company property and developing policies and procedures to
help prevent incidents of workplace violence.
There are 22 states that currently have some form of a “bring your gun
to work” law, which allow employers to ban guns in the workplace but
prohibit employers from banning guns in the parking lot. Two states,
Missouri and North Carolina, have laws that only apply to state
employers. Seven states (Florida, Georgia, Indiana, Kansas, Maine,
Mississippi, and Texas) have laws that apply to all employers, while 13
states (Alabama, Alaska, Arizona, Illinois, Kentucky, Louisiana,
Minnesota, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and
Wisconsin) have laws that apply to all property owners.
While some argue that ready access to firearms makes workplaces safer,
some employers believe the availability of guns in or near the
workplace increases the odds of violent and potentially deadly
incidents. Stressful events like terminations of employment occur on a
regular basis. Ready access to a firearm in these situations arguably
increases the possibility that an enraged or disgruntled individual may
use a gun in an act of workplace violence. Therefore, many employers
believe that “bring your gun to work” laws impede their ability to
institute measures to minimize the risk of potentially deadly workplace
incidents.
Employers in states that have no “bring your gun to work” law are free
to ban employees from bringing guns onto their property, including the
parking lots. Employers in states with “bring your gun to work” laws
need to make sure that their policies do not violate these laws. In
either situation, employers should consider implementing measures and
policies, including updating or increasing security and employee
training, which may reduce violence and increase safety in the
workplace.
*
David R. Vance practices in all areas of labor and employment law. He has extensive experience counseling employers as
to workplace safety and related issues. For more information about this
ever changing area of the law, please contact >David (drv@zrlaw.com) at 216.696.4441.
“Marriage” After Windsor: How to Resolve the Uncertainty Surrounding Same-Sex Marriage with Respect to Employment Benefits
By Emily Smith*
The Supreme Court’s decision in
U.S. v. Windsor, 133 S.Ct.
2675 (2013) to strike down the definition of marriage in Section 3 of
the Defense of Marriage Act (“DOMA”) created uncertainty for employers. A
number of laws and federal programs, including the Family and Medical
Leave Act (“FMLA”), relied on DOMA’s definition of marriage as that
between a man and woman. After the Supreme Court held that definition to
be unconstitutional, it was, and in some cases continues to be, unclear
how laws and programs that relied on DOMA’s definition apply to
same-sex spouses. Recently, the federal government and the Department of
Labor (“DOL”) in particular have started to address the uncertainty
that resulted from the
Windsor decision.
The FMLA is one of the major laws that relied upon DOMA’s definition
of marriage. Among other things, the FMLA allows eligible employees to
take a leave of absence from employment to care for a family member that
has a serious health condition. A spouse is a family member under the
FMLA. While the FMLA defines a spouse as “a husband or wife as defined
or recognized under State law for purposes of marriage in the State
where the employee resides,” 29 C.F.R. 825.102, the DOL stated in a 1998
opinion letter that a “spouse” could only be a member of the opposite
sex. Thus, even if a same-sex couple was legally married in New York,
they would have been denied FMLA leave because the federal government,
under DOMA, did not recognize same-sex marriage.
After the
Windsor decision struck down DOMA’s definition of
marriage, there were two possible ways to apply the FMLA (and similar
statutes) to same-sex couples. The first approach is referred to as the
“State of Residency” rule in which the federal government would merely
adopt each state’s definition of marriage when enforcing its programs in
that state. For example, if a same-sex couple is married in New York,
and they request FMLA leave for a sick spouse while they live in New
York, the FMLA leave should be granted because New York recognizes
same-sex marriage. The second approach is referred to as the “State of
Celebration” rule. Under this rule, the federal government would adopt
the spousal definition of the state in which the individual was married.
For example, if a same-sex couple is married in New York and then
subsequently moves to Ohio, the couple’s marriage would still be viewed
as legitimate by the federal government even though Ohio does not
recognize same-sex marriage. Meanwhile, this same couple’s marriage
would not be recognized under the “State of Residency” rule because
Ohio, the couple’s state of residency, does not recognize same-sex
marriage.
The DOL recently released two pieces of guidance that shed light on
the application of two different federal laws to same-sex spouses.
First, in
Fact Sheet #28F,
the DOL applied the “State of Residency” rule to the FMLA. The Fact
Sheet contains a definition section under which “spouse” is defined as
“a husband or wife as defined or recognized under state law for purposes
of marriage in the state where the employee resides,
including ‘common law’ marriage and same-sex marriage”
(emphasis added). Therefore, employers in states that recognize
same-sex marriage must treat same-sex married couples the same as
heterosexual married couples under the FMLA. Employees residing in
states that do not recognize same-sex marriage are not eligible to
receive FMLA leave for same-sex spouses even if they moved from a state
that allows same-sex marriage.
Contrary to the approach taken under the FMLA, the DOL adopted the
“State of Celebration” rule for employee benefit plans under the
Employee Retirement Income Security Act (“ERISA”). In
Technical Release No. 2013-04,
the DOL stated that for ERISA purposes, the term “spouse” refers to
“any individuals who are lawfully married under any state law, including
individuals married to a person of the same sex who were legally
married in a state that recognizes such marriages, but who are domiciled
in a state that does not recognize such marriages.” Therefore, under
ERISA, same-sex married employees must be treated the same as
heterosexual married couples even if the employee’s state of residence
does not recognize same-sex marriage.
In addition to the guidance from the DOL, the Internal Revenue Service
(“IRS”) recently announced that same-sex married couples may file joint
federal tax returns in
IRS Revenue Ruling 2013-17.
In reaching this conclusion, the IRS applied the “State of Celebration”
standard. As such, all same-sex married couples are entitled to file
jointly, regardless of where they live, so long as they were married in a
state that allows same-sex marriage.
In light of the uncertainty following the
Windsor decision,
employers should review their employment policies and practices to
ensure — to the extent possible — that they are in compliance with the
laws that were affected by the decision. While not binding on the
courts, the DOL and the IRS have provided some guidance to employers.
Employers should take a proactive approach in order to keep up-to-date
with the latest developments and to avoid future liability.
*
Emily A. Smith, practices in all areas of employment law
and has extensive experience helping employers comply with the FMLA. If
you have questions about how the Windsor decision impacts your company,
please contact Zashin & Rich at 614.224.4441.
Don’t E-Smoke ‘em If You Got ‘em: E-Cigarettes in the Workplace
By David Frantz*
With a majority of states having workplace smoking bans, you may have
thought that the days of an employee kicking back in his or her office
chair and taking a few puffs were a thing of the past. However, at least
for the time being, this may not be the case. With the advent of
e-cigarettes, some smokers may rejoice as workplace smoking bans
struggle to keep up with advances in technology.
Ohio’s smoking ban, which can be found at Ohio Revised Code Section
3794, generally prohibits “smoking” in any enclosed workplace or in
areas directly adjacent to the entry or exit of a workplace. “Smoking”
is defined as “inhaling, exhaling, burning, or carrying any lighted
cigar, cigarette, pipe, or other lighted smoking device for burning
tobacco or any other plant.” Although the definition sounds
comprehensive, it does not extend to e-cigarettes because they operate
by vaporizing (not burning) liquid nicotine (not tobacco). Touted by the
e-cigarette industry as a safer alternative to traditional cigarettes,
these battery operated devices emit a relatively scentless vapor that
looks similar to cigarette smoke.
States and employers have responded to e-cigarettes in a variety of
manners. In January 2010, New Jersey amended its workplace smoking ban,
the New Jersey Smoke Free Air Act, to ban e-cigarettes in the workplace.
Other states have also passed laws restricting the sale of e-cigarettes
to minors. A number of employers also started imposing penalties, in
the form of fees and increased health insurance premiums, on employees
who use e-cigarettes.
Employers wishing to prevent employees from using e-cigarettes in the
workplace may ban their use, even in areas where state or local
municipality smoking laws do not apply to e-cigarettes. Employers who do
not mind e-cigarette use should make sure that such use does not
violate their state’s law or any local ordinances before permitting
e-cigarette use in the workplace. Either way, as e-cigarettes become
more popular, employers should be cognizant of the potential legal
issues that they pose and plan accordingly, whether that be revising or
instituting a new workplace smoking policy or seeking legal advice on
applicable state and local laws.
*
David Frantz practices in all areas of employment
law. If you have questions about state or local smoking bans or
workplace smoking policies, please contact David (dpf@zrlaw.com) at 216.696.4441.
FMLA Certification: Proactive Measures to Reduce Fraud and Abuse of FMLA Leave
By Stephen Zashin*
Employee leaves of absence under the Family and Medical Leave Act
(“FMLA”) continue to increase, which in turn, increases an employer’s
vulnerability to claims related to such leave. Employers must carefully
evaluate all employee requests for FMLA leave. The following practices
and procedures may help employers effectively administer FMLA leave
while also reducing FMLA leave abuse.
Require Employees that Request FMLA Leave to Obtain Medical Certification
The medical certification process can help employers avoid granting
improper FMLA requests or denying legitimate ones. Employers who require
certification must provide notice to an employee in the Rights and
Responsibilities Notice provided to employees with their Eligibility
Notice. Any employee requesting medical leave must provide his or her
employer with a complete and sufficient medical certification if the
employer requests it. The employee must pay all costs associated with
the initial medical certification. A medical certification may include:
health care provider contact information; the date the health condition
commenced; detailed information about the condition; details about how
the condition prevents the employee from performing the essential
functions of his or her job; in cases where the employee is taking leave
to care for a family member, information about the care that is needed;
and for intermittent leave, information about the condition that calls
for intermittent leave and details concerning the dates of leave or
frequency of incapacity. If an employee who has requested leave fails to
provide the requested certification, the employer may deny the
employee’s request.
Maintain Clear and Detailed Job Requirements and Keep Track of All Absences
Employers should maintain written job requirements and duties for
each position at the company. When an employee requests FMLA leave,
employers can attach these requirements to the certification forms that
the employee submits to a health care provider. Health care providers
use the job requirements to determine if the employee requesting leave
can perform the essential functions of his or her job despite the
condition. Employers should also track all employee absences. Work
attendance statistics can be extremely helpful in detecting fraudulent
leave requests. Employers can use this information during the
certification process to verify with health care providers that an
employee’s absences are an expected result of the condition at issue.
Authenticate and Clarify any Ambiguities that Appear on an Employee’s Certification
Occasionally, an employee will provide his or her employer with an
incomplete or ambiguous medical certification. If so, the employer must
provide the employee with written notice of any deficiencies and allow
the employee to clarify ambiguities and correct deficiencies on the
medical certification. Once an employee provides a complete
certification, the employer can no longer request additional information
from the employee’s health care provider. However, there are certain
avenues through which the employer can seek clarification or
authentication of the certification from the employee’s health care
provider. Specifically, the employer may use: (1) a human resource
professional; (2) a leave administrator; or (3) another health care
provider to contact the issuing health care provider. It is critical
that the employee’s immediate supervisor or someone to whom the employee
reports to or works with directly does not contact the health care
provider.
Require Employees with Questionable Certificates to Obtain a Second Opinion
If the employer contacts the health care provider and still believes
the employee’s certification is unclear or invalid, the employer may
require the employee to obtain a second medical certification from a
different health care provider. The employer is responsible for choosing
the second health care provider; however, this provider cannot be one
the employer regularly utilizes. The employer bears the cost for the
second medical certification. If inconsistencies arise between the first
and second certification, the employer may request a third and final
certification. The employer also must pay for the cost of this
certification. Although second and third medical certifications come at a
cost to employers, employers may request them if they believe the
original certification is fraudulent or ambiguous.
Require Employees that Request Additional Leave to Get Recertified
Employers may require an employee on leave to obtain recertification
before extending the employee’s leave. Employers may request
recertification of an employee every 30 days unless the employee suffers
from a serious health condition that impairs his or her ability to
perform job requirements for a period of time exceeding 30 days. If the
certification indicates that the minimum duration is more than 30 days,
the employer must wait until the minimum duration expires before
requesting recertification. An employer may request recertification
after a period of less than 30 days if: (1) the employee requests an
extension of leave; (2) the employee’s circumstances have changed since
the previous certification; or (3) the employer has reason to believe
that the previous medical certification was invalid. By requesting
employee recertification, employers can help determine whether an
employee’s original issue still inhibits his or her job performance.
Generally, employers must allow the employee at least 15 days to provide
the recertification, but the employee bears the expense of the
recertification.
Require Employees that are Returning to Work from FMLA Leave to Obtain a “Fitness for Duty” Certification
Requiring employees to obtain a fitness for duty certification can
help prevent employees from injuring themselves or others in an accident
caused by a premature return to work. Employers may request a fitness
for duty certificate for the particular health condition precipitating
the employee’s need for leave only. Employers must provide notice to
employees in their Designation Notices if they require employees to
obtain fitness for duty certification before returning to work, and
whether the certification must address an employee’s ability to preform
the essential functions of his or her job. Employers should provide
written job descriptions or a list of the essential functions of the
employee’s position to employees with the Designation Notice. The
employee is responsible for paying all costs associated with this
certification. The employer may contact the health care provider to
authenticate or clarify the certification in the same manner as the
original medical certification. However, the employer may not request a
second or third opinion. Also, if an employee’s return to work is
governed by a collective bargaining agreement, the employer should abide
by such agreement before proceeding with a request for a fitness for
duty certification.
It is important that employers draft, enforce, and provide employees
with a copy of company leave of absence policies and procedures.
Specifically, employers should notify employees of their rights under
the FMLA and the proper procedures to request leave. Employers must
display an FMLA information poster at the workplace. This information
also must be available in the employee handbook, or if the employer does
not have a handbook, must be distributed to employees when they are
hired.
Handling FMLA leave requests is a complicated process that can lead to
costly mistakes. Employers should contact counsel for advice and
assistance in developing policies and procedures that will help reduce
FMLA leave abuse and limit potential liability.
*
Stephen Zashin,
an OSBA Certified Specialist in
Labor and Employment Law and a Best Lawyer in America (2014), is the
head of the firm’s Employment and Labor Group. Stephen’s practice
encompasses all areas of employment litigation. He has extensive
experience helping employers navigate through FMLA leave administration,
certification, and other employment issues. For more information about
this ever changing area, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
Clearing Away the Smoke: When a “Volunteer” is Really an “Employee” under the FLSA and FMLA
By Jonathan Downes*
In a counter-intuitive decision, the Sixth Circuit Court of Appeals
recently addressed the ambiguity under the Family and Medical Leave Act
(“FMLA”) as to when paid-volunteers should be considered employees. In
Mendel v. City of Gibraltar, 727 F.3d
565 (2013), the court held that a city’s paid-volunteer firefighters
were employees for purposes of the FMLA. This decision impacts smaller
cities and other political subdivisions that utilize paid-volunteer
forces and previously thought these forces were not subject to the FMLA.
In order for an employer to be subject to claims under the FMLA, it
must have 50 or more “employees” working within a 75 mile radius. Thanks
to the rather imprecise definitions used in the Fair Labor Standards
Act (“FLSA”)—upon which the FMLA relies for its definitions of terms
like “employ” and “employee”—the United States Supreme Court developed
an “economic realities” test to determine who qualifies as an employee
under the Acts. This test takes a case-by-case approach, weighing the
circumstances of the business activity as a whole instead of relying on
isolated factors.
In
Mendel, a dispatcher for the city’s police department
claimed that he was terminated in violation of the FMLA. The city argued
that its employees were not covered by the FMLA because the city only
employed 41 people, not 50 as is necessary for the FMLA to apply. The
city contended that its 20-35 paid-volunteer firefighters were not
employees
In determining whether the volunteer firefighters were employees, the
court focused heavily on the amount of wages paid to the volunteer
firefighters. Under the FLSA and the FMLA, volunteers for public
agencies are excluded from the definition of “employee” if they are not
paid or only receive a nominal fee for their services. The firefighters
at issue in
Mendel received $15 per hour for responding to
calls and maintaining equipment while nearby communities paid full-time
firefighters wages ranging from $14 to $17 per hour. In light of the
“economic realities” of the situation, the court found that the
“substantial compensation” paid to the volunteer firefighters was not a
nominal fee, and as such, the firefighters were employees.
The court did not weigh other factors that would support a finding
against employee status as heavily. For example, the volunteer
firefighters were not required, whatsoever, to actually respond to any
emergency calls, they had no consistent schedules or set shifts, they
did not staff a fire station, and they maintained other employment.
Despite the clear lack of control by the city over these volunteer
firefighters, the court found that these factors were insufficient to
overcome the fact that the city paid the firefighters substantial wages
for their services.
In light of the
Mendel decision, employers using
paid-volunteer forces should reevaluate whether they are truly
volunteers. If not, additional laws and regulations may apply to the
employer when including its paid-volunteer forces as employees. Although
courts will determine employee status on a case-by-case basis, this
decision sheds light on the factors that the Sixth Circuit and other
courts may emphasize in their determinations. Concerned employers should
seek advice from legal counsel in determining potential liability under
the FMLA, the FLSA, and other statutes.
*
Jonathan Downes is an OSBA Certified Specialist
in Employment and Labor Law and a Best Lawyer in America (2014). He has
extensive experience developing policies for and advising municipalities
and public entities. For more information about this article or general
issues please contact Jonathan (jjd@zrlaw.com) at 614.224.4441.
State Minimum Wage Increases for 2014
By George S. Crisci*
The federal minimum wage will remain at $7.25 for non-tipped
employees and $2.13 for tipped employees in 2014. The following states
though are increasing their minimum wage as follows:
| 2014 STATE MINIMUM WAGE INCREASES |
| State |
Non-tipped |
Increase |
Tipped |
Increase |
Arizona
|
$7.90
|
$0.10
|
$4.90
|
$0.10
|
California†
|
$9.00
|
$1.00
|
N/A
|
N/A
|
Colorado††
|
$8.00
|
$0.22
|
$4.98
|
$0.22
|
Connecticut
|
$8.70
|
$0.45
|
(No change)
|
Florida
|
$7.93
|
$0.14
|
$4.91
|
$0.14
|
Missouri
|
$7.50
|
$0.15
|
$3.75
|
$0.08
|
Montana
|
$7.90
|
$0.10
|
N/A
|
N/A
|
New Jersey
|
$8.25
|
$1.00
|
(No change)
|
New York
|
$8.00
|
$0.75
|
(Varies by industry)
|
Ohio*
|
$7.95
|
$0.10
|
$3.98
|
$0.05
|
Oregon
|
$9.10
|
$0.15
|
N/A
|
N/A
|
Rhode Island
|
$8.00
|
$0.25
|
(No change)
|
Vermont
|
$8.73
|
$0.13
|
$4.23
|
$0.06
|
Washington
|
$9.32
|
$0.13
|
N/A
|
N/A
|
†Not effective until July 1, 2014.
††Currently proposed; final rules pending.
*Only applies to employers with annual gross receipts of more than $292,000.00.
|
*George S. Crisci, an OSBA Certified Specialist in
Employment and Labor Law and a Best Lawyer in America (2014), has
extensive knowledge of wage and hour laws. For more information about
changes to the minimum wage or your labor and employment law needs,
please contact George (gsc@zrlaw.com) at 216.696.4441.
Z&R Shorts
Best Lawyers ® Best Law Firms
Zashin & Rich Co., L.P.A. is pleased to announce that the firm's Employment and Labor Group has received
First Tier ranking in
Employment Law - Management in the Cleveland Region and
Labor Law - Management in both the Cleveland and Columbus Regions by
U.S. News - Best Lawyers® “Best Law Firms” in 2014.
George Crisci,
Jon Dileno,
Jonathan Downes, and
Stephen Zashin
of the firm's Employment and Labor Group were all named Best Lawyers in
America in 2014. The firm congratulates these four attorneys as well as
all of its attorneys that contribute to the firm’s labor and employment
practice. The firm represents clients from publicly traded national
corporations to small businesses in matters ranging from discrimination
and harassment complaints to workers' compensation.
Since it was first published in 1983, Best Lawyers® has become
universally regarded as the definitive guide to legal excellence.
Because Best Lawyers® is based on an exhaustive peer-review survey in
which more than 39,000 leading attorneys cast almost 3.1 million votes
on the legal abilities of other lawyers in their practice areas, and
because lawyers are not required or allowed to pay a fee to be listed,
inclusion in Best Lawyers® is considered a singular honor.
Zashin & Rich is pleased to
announce the addition of David Frantz to the firm’s Employment and Labor
Group in its Cleveland office.
David’s practice encompasses all areas of employment and labor law,
including employment discrimination, retaliation, and labor relations.
As a student at Case Western Reserve University School of Law, David
served as an editor for the Case Western Reserve Law Review and received
an award for excelling in the study of labor and employment law. Prior
to joining Z&R, David externed with the United States Equal
Employment Opportunity Commission and Judge Joan Synenberg at the
Cuyahoga County Court of Common Pleas.
Upcoming Speaking Engagements
Sunday, February 2, 2014
Jonathan Downes presents “Advance Techniques in
Arbitration Matters” at the Ohio Public Employers Labor Relations
Association’s Annual Training Conference. For more details, go to
www.ohpelra.org.
Thursday, February 20, 2014
Stephen Zashin presents “HR Issues” before the American Payroll Association Greater Cleveland Chapter. For more details, go to
www.americanpayroll.org.
Thursday, April 17, 2014
Jonathan Downes speaks at the Labor Relations
Information Systems conference on “Collective Bargaining for Public
Safety Personnel” in Las Vegas. For more details, go to
www.lris.com/lris-seminars/.
Tuesday, April 29, 2014
Jonathan Downes presents “Update on Employment and
Labor Issues Affecting Law Enforcement” and “Collective Bargaining and
Arbitration Decisions for Police Chiefs” at the Ohio Association of
Chiefs of Police annual Chiefs In-Service. For more details, go to
www.oacp.org/annualconf/chiefs.html.
Wednesday, May 21, 2014
George Crisci speaks at the National Business
Institute’s Employee Documentation, Discipline, and Discharge seminar in
Akron entitled, “Special Concerns When Dealing with Union
Environments.”
