Showing posts with label Social Media. Show all posts
Showing posts with label Social Media. Show all posts

Tuesday, December 15, 2015

EMPLOYMENT LAW QUARTERLY | Volume XVII, Issue iii

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Quiet Changes to Employment Laws: Federal Agencies Recognize Sexual Orientation and Gender Identity Discrimination

By Ami J. Patel*

In June, the U.S. Supreme Court issued a landmark decision in Obergefell v. Hodges, holding that all states must issue marriage licenses to same-sex couples and recognize same-sex marriages validly performed in other states. The legalization of same-sex marriage affects the way employers provide benefits to same-sex employees. Marriage is not the only front on which LGBT rights are evolving. With much of the public and the media’s spotlight on changes in the law regarding same-sex marriage, people may not realize that several federal agencies already interpret anti-discrimination laws to prohibit discrimination on the basis of sexual orientation and gender identity.

The Equal Employment Opportunity Commission (“EEOC”), the Department of Labor (“DOL”), and the Department of Justice (“DOJ”) all take the position that statutes and orders prohibiting sex discrimination, such as Title VII of the Civil Rights Act of 1964, prohibit discrimination on the basis of gender identity (e.g., identifying as transsexual or transgender). These federal agencies reason that discrimination on the basis of gender identity is a form of sex discrimination. The EEOC and the DOL have stated further that prohibitions against sex discrimination protect discrimination on the basis of sexual orientation as well. Therefore, an individual may file a charge of discrimination with the EEOC on the basis of sexual orientation or gender identity, as a form of sex discrimination. Indeed, the EEOC has reported an increase in sexual orientation and gender identity-based charges, from 765 filed in 2013 to 1,093 filed in 2014.

Ohio’s anti-discrimination laws prohibit discrimination on the basis of sex, but Ohio courts have yet to interpret state law to prohibit sexual orientation discrimination. While Ohio courts generally interpret Ohio’s discrimination law to match federal anti-discrimination protections, Ohio’s 10th district appellate court ruled in its 2014 decision in Burns v. Ohio State Univ. College of Veterinary Med., 2014-Ohio-1190, 2014 Ohio App. LEXIS 1101 (10th App. Dist. 2014), that the state’s prohibition of sex discrimination does not extend to sexual orientation discrimination. Given the rapidly changing legal landscape regarding LGBT rights, Ohio courts’ stance may soon shift. Regardless, employers should be aware that employees experiencing sexual orientation or sexual identity discrimination may seek recourse with state or federal agencies or the court system.

*Ami J. Patel practices in all areas of labor and employment law. If you have questions about your employment policies in light of legal changes regarding LGBT individuals, please contact Ami at (ajp@zrlaw.com) or 216.696.4441.


How Much Is That Doggie In the Window? Or, Rather, How Much Do Employers Have to Pay Police Officers To Care For Those Police Doggies

By Brad E. Bennett*

Years ago, we watched with bated breath as the French mastiff Hooch helped Detective Scott Turner (Tom Hanks) apprehend a murderer. Sadly (*spoiler alert*), Hooch died in the film’s final minutes. However, had he lived and Detective Turner continued to use Hooch in police work, the Cypress Beach Police Department may have faced a question now facing many police departments, officers, and courts – should police departments pay for off-the-clock time spent caring for police dogs?

The Fair Labor Standards Act (“FLSA”) generally requires employers to compensate employees for all hours worked. “Work” includes “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.” Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944). In addition, the FLSA requires that employers compensate employees for activities performed before or after the employee’s regular work shift if the “activities are an integral and indispensable part of the principle activity” for which the employee is employed. Steiner v. Mitchell, 350 U.S. 247 (1956).

Courts and the Department of Labor have concluded that time-spent off-the-clock caring for police dogs constitutes work and an “integral and indispensable part” of the officer’s principle activity of employment.Specifically, time spent training the dog at home and the dog’s “care” are compensable.  U.S. Dept. of Labor Wage and Hour Opinion Letter August 11, 1993. “Care” includes: bathing, brushing, exercising, feeding, grooming, related cleaning of the dog’s kennel or transport vehicle, administering medicine for illness, and transporting the dog to and from the veterinarian. So how much time must an employer compensate law enforcement personnel for these activities and at what rate?

Generally, employers must pay employees a rate of at least one and one-half times the employee’s regular rate of pay for hours worked in excess of 40 hours in a week. 29 U.S.C. §207(a)(1). However, employers may calculate law enforcement personnel overtime over a longer time-period, up to 171 hours in 28-day period. 29 U.S.C. §207(k). In addition, the FLSA allows employers and employees to agree upon different straight-time hourly rates where the employee performs “two or more kinds of work.” 29 U.S.C. §207(g). In the event an employer agrees upon a different straight-time hourly rate for dog-care, it must ensure that it only pays that different rate for dog-care and not law enforcement activities.

How much time a police department must compensate its personnel to care for police dogs varies by court.In one case, the court concluded the District of Columbia had to pay its officers 30-minutes per day (seven days/week) for “the care, feeding, and grooming” of the police dogs. Levering v. District of Columbia, 869 F. Supp. 24 (D.C. Cir. 1994). However, another court upheld the City of Cincinnati’s agreement, reached through a collective bargaining agreement, to compensate its canine officers for 17 minutes of straight-time per day. Brock v. City of Cincinnati, 236 F.3d 793 (6th Cir. 2001). There, in finding the agreement Cincinnati reached with its police union reasonable, the court considered the following additional benefits the City provided (among others): take-home vehicles; concrete-based fenced dog kennel at the officer’s home; payment of food and veterinary care; and the benefit of having a highly trained police dog as a family pet.

Employers that maintain police department canine units should review their compensation system to ensure they are properly compensating those caring for the canines. When determining what constitutes proper payment, in addition to an hourly rate, employers may consider other benefits provided. Employers should attempt to reach an agreement with personnel on a reasonable amount of compensation and contact counsel with questions.

*Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment Law, practices at the firm’s Columbus office.He is well versed in all areas of labor and employment law including FLSA compliance.If you have questions about the FLSA and police department canine units, please contact Brad (beb@zrlaw.com) at 614.224.4411.


My Employee Said What on Facebook?

By Drew C. Piersall*

“Ok we got Bin Laden . . . let’s go get Kasich next . . . who’s with me?” “[C]an’t believe what a snake my boss is. . . . he needs to keep his [creepy] hands to himself . . . just an all around d-bag!!” “If you are on public assistance, you may not have additional children and must be on birth control (e.g. an IUD).” These are statements that employees made on Facebook for which they received discipline, yet courts and an arbitrator reached different conclusions regarding the appropriateness of the discipline.

The decisions raise many questions. Can employers discipline employees for comments, posts, etc. that employees make while off-duty on non-employer social media sites? What standards apply to employee off-duty conduct? The arbitrator evaluating whether the Ohio Department of Rehabilitation and Correction had just cause to terminate the employee who made the Bin Laden comment above considered these issues. State of Ohio, Ohio Dep’t of Rehab. and Corr., (Pincus, Mar. 6, 2013). There, four employees who worked in the same correctional institution “liked” the corrections officer’s Bin Laden Facebook comment, which he posted off-duty. The officer’s Facebook profile included his job location and public employee status. Once the employer learned of the comment, it investigated and ultimately discharged the officer. However, the arbitrator concluded that the officer’s statement was nothing more than empty words. In addition, the employer’s “E-mail, Internet, and On-line Services Use” policy did not place the employee on notice that the policy covered his off-duty conduct. As a result, the arbitrator concluded that while officer’s alleged threat justified a 14-month suspension, the employer did not have just cause to terminate his employment.

The First Amendment protects a public employee’s right “to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410 (2006). A public employee must show the following to establish the First Amendment protected his or her speech: (1) the employee spoke as a private citizen rather than pursuant to official duties; (2) the speech involved a matter of public concern; and (3) the employee’s “interest as a citizen” in commenting on the matter outweighed the State’s interest, “as an employer, in promoting the efficiency of the public services it performs through its employees.” Westmoreland v. Sutherland, 662 F.3d 714 (6th Cir. 2011).

Employees have raised the First Amendment as a defense to their social media posts in a number of contexts with varying results. For example, the court affirmed the discharge of the children’s services worker who made the above (and many other) comments about people who received public assistance. Shepherd v. McGee, 986 F.Supp. 2d 1211 (D. Or. 2013). The court reasoned that since her comments were banter “rather than speech intended to help the public actually evaluate the performance of a public agency,” they stood “on the periphery of First Amendment protection.” The court also emphasized the heightened government interest that existed since the employee held a “public contact role.” In addition, the employee’s statements impaired her ability to do her job – testify at proceedings, since her statements raised credibility issues for prosecutors.

In evaluating employee conduct, discipline, and social media use, it is helpful for employers to have social media and computer use policies. However, employers must be cautious about the content and prohibitions included in such policies. The National Labor Relations Board (“NLRB”) analyzes whether employers violate Section 7 of the National Labor Relations Act (“NLRA”), which guarantees employees the right to join unions and engage in “concerted activity” for the purposes of “mutual aid or protection.” 29 U.S.C. §157. In the social media context, the NLRB considers whether an employee could reasonably construe a rule or policy to chill the employee’s exercise of their Section 7 rights.

The NLRB has shown it will go to great lengths to protect employee speech. In Three D, LLC v. NLRB, the Second Circuit affirmed the NLRB’s ruling that an employee’s Facebook post that the employer was “[s]uch an asshole” was concerted, protected activity. No. 14-3284, 2015 U.S. App. LEXIS 18493 (2d Cir. Oct. 21, 2015). The NLRB found the activity concerted because it involved multiple employees and protected because it involved workplace complaints about tax withholdings. Furthermore, the statements were within the NLRA’s protection because the comment at issue did not mention, let alone disparage, the employer’s products. Therefore, at least according to the NLRB, an employee may call their boss an “asshole” on social media without repercussion.

Beyond controlling and responding to employee use of social media, the prevalence of social media bleeds into the hiring process. Social media provides employers with another forum to post jobs and conduct background checks. However, employers should engage in social media checks with caution. First, employers should consider the accuracy of the information (e.g., potential for false profiles or accounts). In addition, by viewing a prospective employee’s social media account, the employer may incidentally obtain information regarding the individual’s race, gender, national origin, religion, age, disability, or genetic background. This knowledge could expose the employer to claims of discrimination. Therefore, any employer who chooses to review prospective employees’ social media accounts should take the following precautionary steps: (1) ensure the person reviewing social media accounts is wholly uninvolved in making the hiring decision; (2) only review publicly available social media; and (3) do not request social media account passwords during the hiring process.

The growing prevalence of social media has created a host of potential issues for employers. Given social media’s fast-paced growth and ever-changing nature, employers should constantly keep abreast of the current status of the law.

*Drew C. Piersall works in the firm’s Columbus office and practices in all areas of labor and employment law. If you have any questions about employee use of social media, please contact Drew (dcp@zrlaw.com) at 614.224.4411.


Employment Practices Liability Insurance – Do Not Wait to Notify Carrier of Claims

By Stephen S. Zashin*

Employers that wait too long to report claims to an Employment Practices Liability Insurance (“EPLI”) carrier may lose coverage. A federal court recently determined that an employer violated its EPLI policy when it waited nearly two years to notify its insurance carrier of an Equal Employment Opportunity Commission (“EEOC”) Charge of Discrimination (“Charge”). E. Dillon Co. v. Travelers Cas. & Sur. Co. of Am., No. 1:14-cv-00070, 2015 U.S. Dist. LEXIS 76295 (W.D. Va. June 12, 2015). As a result, the insurance carrier did not have to provide coverage for the EEOC Charge and subsequent litigation.

The employer twice waited too long to provide notice of claims to its EPLI carrier. First, the employer waited almost 23 months after it received notice of a pending EEOC Charge (Apr. 4, 2011) before notifying the insurance carrier (Feb. 28, 2013). During that time, the EEOC dismissed the Charge (Apr. 28, 2012), reversed course and found reasonable cause to believe the employer violated the Americans with Disabilities Act (Sept. 27, 2012) and scheduled mediation (Mar. 14, 2013). Later, the employer waited approximately five months after it was served with a lawsuit related to the Charge (Sept. 9, 2013) to notify the insurance carrier of the lawsuit (Feb. 3, 2014). The employer provided notice of the lawsuit eight days before court-scheduled mediation was to occur.

The insurance carrier denied both claims after it concluded the employer failed to provide timely notice. The insurance policy covered any “Employment Claim,” which specifically included EEOC proceedings, and required the employer to provide written notice of claims “as soon as practicable.” The insurance carrier concluded that the employer’s decision to wait nearly 23 months and five months respectively to provide notice of the claims violated the “as soon as practicable” requirement.

The court agreed and concluded that the employer’s failure to provide timely notice constituted a material breach of the insurance agreement.The employer’s notification delay was unreasonable because the insurance agreement specifically defined “Employment Claim” to include EEOC proceedings. In addition, the delay prejudiced the insurance carrier, because the carrier: lost the chance to investigate the claims, to direct the employer’s defense, and t0 attempt to resolve the matter before the EEOC found reasonable cause; and the EEOC’s proposed Conciliation Agreement ($178,000 payment) diminished any settlement leverage the insurance company may have possessed.The court concluded the length of delay alone was sufficient to find that the employer materially breached the insurance agreement. In reaching this conclusion, the court considered other court cases which held that any delay beyond 75 days, without reasonable excuse, was unreasonable.

Upon receipt of a potential claim, employers should carefully review their EPLI policy’s reporting requirements and work with their brokers to avoid losing coverage for failing to timely report.Finally, all employers should consider whether to purchase an EPLI policy.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law, is head of the firm’s Labor and Employment Groups.If you have questions about this article, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.


EEOC to Change Genetic Information Nondiscrimination Act Regulations on Wellness Programs

By Patrick Hoban*

On October 30, 2015, the Equal Employment Opportunity Commission (“EEOC”) released a Notice of Proposed Rulemaking setting forth proposed changes to the regulations governing employer wellness programs in relation to Title II of the Genetic Information Nondiscrimination Act (“GINA”). GINA is a federal law that, in part, protects employees and applicants from discrimination based upon genetic information, including that of their family members. The proposed rule seeks to clarify the circumstances under which employers may offer inducements (i.e., wellness program incentives) in exchange for health-status information of employee spouses who participate in the employer’s group health plan.

A wellness program is “a program offered by an employer that is designed to promote health and prevent disease.” 42 U.S.C. 300gg-4(j)(1)(a). Wellness programs include a wide range of employer-sponsored services, from smoking cessation to workout programs to health assessments. Under GINA, wellness programs cannot condition employee inducements upon employee genetic information. “Genetic information” includes, among other things, information about employees and their family members’ (including spouses) genetic tests and family medical history.

Employers covered by GINA (i.e., those with 15 or more employees) are prohibited from requesting, requiring, or purchasing employee genetic information, unless a statutory exception applies. One exception allows employers to obtain genetic information as part of employer-provided voluntary health or genetic services, including wellness programs. This exception only applies if: (1) the provision of genetic information is actually voluntary (i.e., employees are not required to provide the genetic information and there is no penalty for not providing it); and (2) the individual provides “prior knowing, voluntary, and written authorization.” 29 C.F.R. 1635.8(b)(2)(i).

The EEOC’s proposed rule adds an additional requirement that an employer’s wellness program must be “reasonably designed to promote health or prevent disease.” This means the wellness program “must have a reasonable chance of improving the health of, or preventing disease in, participating individuals, and must not be overly burdensome, a subterfuge for violating [GINA] or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease.”

The EEOC’s proposed rule explains that, under GINA, employers can offer limited inducements for information about the current or past health status of an employee’s spouse covered by the employer’s group health plan. The provision of this information must be part of a “health risk assessment,” (e.g., medical questionnaire or examination to detect high cholesterol) conducted in connection with the spouse’s receipt of health or genetic services as part of the employer’s wellness program. The wellness program inducements may take various forms, from discounts or rebates to the avoidance of a premium surcharge. The total inducements offered under the wellness program may not exceed 30 percent of the total annual costs of coverage. To be valid, the provision of the spouse’s information must meet the requirements of GINA’s wellness program exception discussed above (i.e., voluntary and with prior written authorization). Furthermore, the information provided in exchange for the inducement must be limited to current and past health status and cannot include genetic information such as results of genetic tests.

The proposed exception for inducements is limited to employee spouses who are covered under the employer’s group health plan. Employers may not provide inducements in exchange for employee genetic information or their biological or non-biological child’s genetic information or current or past health status. Employers may offer inducements for completion of health risk assessments that ask questions about family medical history and other genetic information; however, the employer must make it clear that the inducement will be available regardless of whether the specific genetic information questions are answered.

Prior to announcing the proposed rule, the EEOC initiated litigation taking issue with multiple employers’ wellness programs. See, e.g., EEOC v. Honeywell Int’l. Inc., N0. 0:14-cv-04517 (D. Minn. 2014); EEOC v. Orion Energy Systems, Inc., N0. 1:14-cv-01019 (E.D. Wis. 2014). In Honeywell, the EEOC sought a temporary restraining order and preliminary injunction preventing the company from imposing surcharge penalties on employees and spouses that did not participate in biometric testing for health data including cholesterol and nicotine levels. The EEOC argued that the wellness program violated GINA and the Americans with Disabilities Act. The court denied the EEOC’s motion, but noted that “great uncertainty persists in how the [Affordable Care Act], [Americans with Disabilities Act] and other federal statutes such as GINA are intended to interact,” with respect to wellness programs.

The EEOC’s proposed GINA rule comes on the heels of an April 2015 proposed rule (discussed by Z&R here) addressing, in part, amendments to the EEOC’s regulations and guidance on the Americans with Disabilities Act relating to employer wellness programs. The comment period for the proposed Americans with Disabilities Act rule closed in June. The EEOC may make revisions in light of the comments before voting on the final rule. The EEOC is accepting comments on its proposed GINA rule until January 28, 2016. Employers can anticipate continued developments, and litigation, in this nascent area of employment law.

*Patrick Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. If you have questions about wellness programs, please contact Pat (pjh@zrlaw.com) at 216.696.4441.


Z&R SHORTS


Z&R Announces Its 2016 Super Lawyers and Rising Stars


Zashin & Rich is pleased to congratulate the following 2016 Super Lawyers:


Brad E. Bennett, George S. Crisci, Jon M. Dileno, Jonathan J. Downes, Michele L. Jakubs, and Stephen S. Zashin were named Super Lawyers. Helena Oroz, Ami J. Patel, and David R. Vance were named Rising Stars.



Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.



Super Lawyers Magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country.

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


Lisa A. Kainec Joins Z&R Cleveland
Lisa is a legal and human resources professional with 20+ years of experience in employment law across multiple industries including retail, healthcare, municipal, professional services, construction and manufacturing. Lisa has worked in-house as a human resources executive and senior employment counsel at Jo-Ann Stores. Lisa was a Certified Specialist in Labor and Employment Law. Lisa devotes her practice to providing practical strategies for proactive workforce management as well as vigorous defense of employee claims and litigation.

Brad E. Bennett Joins Z&R Columbus
Brad has 18 years of employment law experience as an attorney and human resources professional across multiple industries including healthcare, aviation, retail, public sector and construction.  He represents public and private sector employers in all aspects of labor and employment law.  In addition to his litigation practice, Brad represents public sector employers in collective bargaining, grievance arbitrations, and impasse proceedings. Additionally, Brad has drafted civil service rules for municipalities, represents public sector employers before the State Personnel Board of Review (SPBR), and counsels public employers regarding compliance with Ohio’s Open Meetings Act and Public Records Act.  Brad is an OSBA Certified Specialist in Labor and Employment.
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Tuesday, April 8, 2014

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

*By Patrick J. Hoban

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

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

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

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

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

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

*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about the NLRB decision or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
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Tuesday, September 3, 2013

There’s an App for That: The New NLRB Smartphone App

*By Jonathan D. Decker
 
Despite two federal courts’ invalidation of the National Labor Relations Board’s (“NLRB”) “posting rule,” the NLRB marked this year’s Labor Day holiday by introducing a mobile app designed to inform employers and employees about the National Labor Relations Act (“NLRA”). According to the NLRB, this app “provides employers, employees and unions with information regarding their rights and obligations under the National Labor Relations Act.”

Obviously, the NLRB’s new app makes it easier for employees to receive information about the NLRA, as well as connect with the NLRB. The app allows users to contact the NLRB’s main telephone line from their smartphone with just a few clicks. The app can also use the smartphone’s GPS function to locate the nearest NLRB regional office and display the office’s contact information, including address and telephone number. In addition, the app contains language similar to the NLRB’s “posting rule,” including a statement to employees that “[w]hether or not you are represented by a union, federal law gives you the right to join together with coworkers to improve your lives at work – including joining together in cyberspace, such as on Facebook.” The NLRB’s launch of its new app tracks a similar strategy the Department of Labor (“DOL”) recently initiated, including a “Timesheet” application to record hours worked and calculate the amount an employee may be owed by their employers. Zashin & Rich Co., L.P.A. explained the DOL’s app in a May 2011 alert.

This latest app demonstrates the NLRB’s continued strategy to reach out to workers regarding their rights under the NLRA, even in the face of judicial scrutiny of the agency’s recent activities. In an increasingly digital world, employers must recognize the issues posed by technology in the workplace, account for employees’ ease of access to the NLRB’s information, and utilize proactive measures to counter the NLRB’s more aggressive posture.
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Monday, June 17, 2013

EMPLOYMENT LAW QUARTERLY | Spring 2013, Volume XV, Issue i

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Non-Compete Agreements and Separation Agreements — Are They Incompatible?

By Helena Oroz*

Does a separation agreement nullify an earlier covenant not to compete? It depends. In Try Hours, Inc. v. Douville, 2013 WL 139584 (January 11, 2013), the Ohio Sixth District Court of Appeals recently held that a one year non-compete agreement was not superseded by a separation agreement between the two parties. Try Hours, a national trucking company focused on the expedited freight industry, was the plaintiff-employer in the case. Try Hours hired the defendant, Bryan Douville (“Douville”), in 2010 as its director of operations. Douville signed an employment agreement that contained a non-compete and non-solicitation clause. The clause provided that Douville could not work for any company within the United States in direct competition with Try Hours for a period of one year after his employment with Try Hours ended. Finding Douville was not a good fit for the organization, Try Hours terminated his employment in October 2011.

At the time of Douville’s discharge, the parties entered into a separation agreement that included an integration clause. The integration clause stated that the separation agreement constituted the entire agreement between the parties and that “no prior or subsequent oral Agreements, representations or understandings shall be binding upon the parties and such shall be null and void and shall have no effect.” Douville, believing that the separation agreement freed him from his obligation to abide by the non-compete agreement, began work at a competitor.

Try Hours brought suit alleging that Douville violated the non-compete agreement, and sought a preliminary injunction to enjoin Douville from working for the competitor. The trial court granted Try Hours' motion for preliminary injunction. On appeal Douville asserted: (1) the separation agreement effectively nullified the original employment agreement; (2) that the grant of the preliminary injunction was error; and (3) that the duration and scope of the injunction was unreasonable.

The court first determined the separation agreement did not supersede the employment agreement between the parties. Douville argued that the integration clause contained within the separation agreement was ambiguous as to whether the separation agreement was meant to supersede the employment agreement. The court found the separation agreement merely limited the rights of Douville to bring a claim against Try Hours stemming from his employment. Furthermore, the court found that the integration clause only excluded oral agreements. Therefore, the court reasoned that since the non-compete clause was a written agreement it should not be superseded by the separation agreement’s reference to “subsequent oral Agreements.”

The court then looked to determine whether a preliminary injunction should have been granted in favor of Try Hours. Try Hours argued that the competitive nature of the freight trucking industry required that its sensitive company information be kept confidential. It asserted that information such as the company’s drivers’ names, customer list, pricing information, and quality and service scores was crucial to Try Hours’ performance and was therefore confidential. Try Hours was especially protective of its drivers’ information, arguing that the demand for quality expedited freight truck drivers far exceeded the actual number of such drivers. The court agreed with Try Hours and found that this sensitive information was indeed confidential, especially in light of the fact that Douville’s job at PFM included securing truck drivers to haul expedited freight, which placed him in direct competition with Try Hours.

Douville argued that the injunction placed an undue hardship on him as it prevented him from procuring employment in an industry in which he had worked for 11 years. The court, however, determined that the “direct competition” language of the non-compete agreement limited his ability to work in the freight industry only. The court reasoned that while Douville would experience some hardship throughout the duration of the injunction, he must demonstrate more. The court noted that Douville was still free to seek employment with any trucking company not engaged in the expedited freight business. The court also determined that the non-compete agreement’s provision prohibiting Douville from working for any expedited freight trucking company across the United States was appropriate as the trucking industry is a multistate industry. Finally, the court determined that the one year duration of the restriction period was a reasonable amount of time. As such, the court reaffirmed Try Hours’ injunction.

This case presents two important lessons for employers. First, employers should craft carefully separation agreements that do not accidentally supersede any prior non-compete or other agreements. Second, employers should draft non-compete agreements narrowly (in both scope and duration) and consider the degree of hardship to the employee. Both of these concepts will help employers achieve their objectives as to departing employees.

*Helena Oroz practices in all areas of employment litigation and has extensive experience helping employers draft, enforce, and otherwise advise clients about non-compete agreements. For more information about this ever changing area, please contact Helena (hot@zrlaw.com) at 216.696.4441.


PUBLIC SECTOR EMPLOYERS: “Which Hat Is He Wearing?”

By Jonathan J. Downes*

Everyone knows the First Amendment protects free speech, but no right is absolute. Public employee speech is no different.

The First Amendment protects a public employee’s speech if he or she speaks as a citizen about matters of public interest. When that public employee speaks in his or her official capacity regarding his or her official duties or matters not of public interest, that employee is not insulated from discipline. Does this same rule apply to a public employee who is also a union official criticizing or challenging decisions or policy of an employer?

The U.S. Court of Appeals for the Ninth Circuit (which covers much of the west coast) recently decided how First Amendment free speech protections apply to a union “no-confidence vote.” The case is Ellins v. City of Sierra Madre, 710 F. 3d 1049 (9th Cir. 2013).

John Ellins, a police officer for the City of Sierra Madre, California, led a no-confidence vote of the police officers’ union against the Chief of Police, Marilyn Diaz in 2008. According to Ellins, the union initiated the vote due to Diaz’s “lack of leadership, wasting of citizens’ tax dollars, hypocrisy, expensive paranoia, and damaging inability to conduct her job.”

In 2009, Ellins submitted an application to Diaz for a certification that, under the City’s Memorandum of Understanding with the police officers’ union, would have entitled him to a five percent raise. When Diaz delayed approving his application, Ellins filed suit, claiming that the failure to process his application was in retaliation for his exercise of free expression and association and his union activities related to the “no confidence” vote.

The district court ruled in favor of the City and Diaz, holding that Ellins had not established a claim of First Amendment retaliation. In addition to failing to establish the other elements of his claim, Ellins failed to establish that he spoke as a private citizen in leading the no-confidence vote.

The Ninth Circuit reversed on this issue, rejecting the City’s position that Ellins conducted the no-confidence vote as a police officer, not as a citizen. The Court found that Ellins’ conduct was in his capacity as a union representative, noting that there is an “inherent institutional conflict of interest between an employer and its employees’ union.” Therefore, the Court held that a reasonable jury could find that Ellins’ speech, made as a representative and president of the police union, was made in his capacity as a private citizen.

The Court also concluded that the concerns raised by the no-confidence vote addressed the Chief’s leadership and other department-wide matters. The Court found that “these departmental problems were of inherent interest to the public because they could affect the ability of the Sierra Madre police force to attract and retain officers.”

*Jonathan J. Downes, an OSBA certified specialist in labor and employment law, practices in the firm’s Columbus, Ohio office and has extensive experience representing public sector employers. If you have any questions about the above or any other union/employee issue, contact Jonathan (jjd@zrlaw.com) at 614.224.4411.


FireYou? Ok!...I Think

By B. Jason Rossiter*

The prevalence of social media increases by the minute. Every day millions of people login to their Facebook, Twitter, LinkedIn, and other social networking accounts and post their thoughts to the world. Sometimes, these broadcasted postings include an employee’s disdain for his or her job or, in many cases, his or her boss.

The increase in social media activity by employees has led to the development of new programs and applications designed to track such activity, including “FireMe!” FireMe! is a new Twitter application developed to alert users of the likelihood of termination as a result of what they post. FireMe! was developed by Ricardo Kawase, a PhD student in Hannover, Germany, with the goal of raising awareness about the danger of public online data. FireMe! scans a user’s Twitter accounts for keywords such as “kill,” “boss,” and “job,” as well as any combination of foul language to identify problematic tweets concerning the workplace. It also notifies users about tweets that may jeopardize the user’s employment.

Employers may be tempted to utilize this or similar applications to identify employees tweeting about the workplace. If an employer knows an employee’s twitter account name, they can log onto the FireMe! website, enter the employee’s twitter account, and a ranking will appear, indicating how “likely” that Twitter user is to be fired for the content of their tweets.

Employers beware, though. The National Labor Relations Board (“NLRB”) already has held on numerous occasions that Section 7 of the National Labor Relations Act (“NLRA”) protects employee postings on the internet. The NLRA protects employees in “circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management,” even if that action takes place online. 

The NLRB has taken the position that, in general, so long as an employee’s online posting is related to the terms and conditions of his or her employment, it is considered protected speech and the employee cannot be fired for it. The NLRB also has routinely struck down employer policies prohibiting employee statements that could damage the company, defame any individual, or damage any person's reputation. However, online postings of threats of violence against co-workers, supervisors, or company property generally are not protected and an employer typically may terminate an employee for such conduct.

Ultimately, the determination of whether a social media post constitutes protected activity under the NLRA requires an individualized inquiry. The slightest difference in wording can mean the difference between a lawful and an unlawful termination. As social media continues to play a larger role in employees’ lives, enterprising individuals and companies will continue to develop tools such as the FireMe! application. However, employers should cautiously decide whether to utilize such tools. In addition, employers may want to consider using such tools for constructive purposes. Employees may take to Twitter and other social media outlets to vent workplace-related frustrations of which an employer is simply unaware. Employers can then take steps to remedy these issues, leading to a happier and more productive workplace.

*B. Jason Rossiter practices in all areas of employment litigation. He has extensive experience helping employers navigate through social media and related employment issues. For more information about this ever changing area, please contact Zashin & Rich at 216.696.4441.


Do the Math: Unpaid Interns Don’t Equal Free Labor 

By David R. Vance*

According to the National Association of Colleges and Employers, 55% of students in 2012 graduated with some internship experience on their resume. While unpaid internships can benefit students and employers, employers must ensure any such internship comply with both federal and state wage and hour laws. Failure to do so may result in a lawsuit with a potentially large damage award.

In 2010, the Deputy Wage and Hour Administrator for the United States Department of Labor (“DOL”) told the New York Times, “If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law.” Since then, unpaid interns have filed numerous class action lawsuits claiming that the companies for which they interned violated the Fair Labor Standards Act (“FLSA”) by failing to pay them for their work.

The FLSA does not specifically contain an exception for student interns. Rather, the DOL has provided a small exception for “trainees,” and has recognized that student interns may qualify as trainees. If an intern is considered a “trainee” under the FLSA, employers are not required to pay the intern minimum wage or overtime. In order to constitute a trainee, unpaid interns must satisfy the six factors set out by the United States Supreme Court in Walling v. Portland Terminal Co., 330 U.S. 148 (1947).

After Walling, the DOL released Fact Sheet number 71 which applies the six factors to unpaid interns. According to the DOL, if all of the following requirements are met, the intern does not constitute an employee under federal law:

  • The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
  • The training is for the benefit of the trainees or students;
  • The trainees or students do not displace regular employees, but work under close supervision;
  • The employer that provides the training receives no immediate advantage from the activities of the trainees or students and, on occasion, the employer’s operations may even be impeded;
  • The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
  • The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

While many courts look to these factors to determine whether an unpaid internship is proper, the United States Court of Appeals for the Sixth Circuit, which covers Ohio, does not. Instead, the 6th Circuit uses the “primary benefit test” articulated in Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518 (6th Cir. Tenn. 2011). The primary benefit test determines “whether an employment relationship exists in the context of a training or learning situation [by ascertaining] which party derives the primary benefit from the relationship. Solis at 529. According to the Sixth Circuit, if an employer derives the primary benefit, then an employment relationship exists, and the FLSA and other pertinent laws apply.

Unpaid internships at non-profit organizations are generally permissible because the FLSA includes exceptions for volunteers who perform services for state or local government agencies and those who volunteer at food banks. The Wage and Hour Division of the DOL also has recognized other exceptions for interns working at religious, charitable, civic or humanitarian non-profit organizations who freely volunteer their time without any expectation of compensation.

To help ensure compliance with the FLSA, employers should have interns sign a written agreement when their internship commences. This agreement should make clear that the intern is not entitled to wages or a permanent position upon completion of the program. Companies also should rotate interns through different departments, have specific goals for interns, and closely supervise interns so that the experience is truly educational.

Employers and students alike can benefit from internship programs. However, employers must carefully navigate through FLSA and DOL rules and regulations (as well as applicable state laws) to ensure that a mutually beneficial experience does not become a very costly lawsuit.

*David R. Vance practices in all areas of employment law and has extensive experience representing employers in wage and hour matters as well as advising employers about internship programs. If you have any questions about the FLSA or wage and hour issues affecting your workplace, contact David (drv@zrlaw.com) at 216.696.4441.


Enough is Enough: How Much Time Must an Employer Give an Employee as a Form of a Reasonable Accommodation Under the ADA?

By Emily A. Smith*

An employee ventures into his or her manager’s office and requests medical leave for a disability. The employee produces a note from his or her doctor that supports the employee’s request, so the employer grants the employee’s request for leave. The employee’s leave expires and the employee subsequently submits another request. The employer once again grants the employee’s request. This scene replays itself over again and again and again, like a scene out of Groundhog Day. The employer is left stranded, wondering “When is enough, enough?”

The Americans with Disabilities Act (“ADA”) does not mandate that employers grant employees indefinite leaves of absence. However, the ADA provides employers little assistance in determining how much leave is reasonable in situations like the one described above. Are employers’ hands tied when an employee makes repeated requests for leave?

The Eleventh Circuit recently provided some clarity in Santandreu v. Miami Dade County, 2013 U.S. App. LEXIS 5542 (11th Cir. 2013). In this case, Juan Santandreu alleged that his employer failed to provide reasonable accommodations for his disability. Santandreu worked as an engineer in the Miami Dade County Water and Sewer Department (“Miami Dade”). He went out on medical leave in January 2006 due to an “illness.” Santandreu then requested four extensions of his leave, each request coming just as the previous request was set to expire. In all, Santandreu requested, and Miami Dade granted, leave from January 2006 through May 4, 2007.

On May 1, 2007, Miami Dade sent Santandreu a letter advising him that he was to return to work on May 5, 2007. He did not return to work but advised Miami Dade on May 15, 2007, that his leave of absence should be extended until July 25, 2007. Miami Dade informed Santandreu he had exhausted all available leave and would be terminated if he did not return to work. Miami Dade subsequently sent Santandreu a Disciplinary Action Report (“DAR”), and Santandreu voluntarily resigned in lieu of receiving or opposing the DAR. Santandreu then attempted to rescind his resignation, and Miami Dade denied his request.

Santandreu filed suit against Miami Dade, claiming disability discrimination and retaliation in violation of the ADA. At trial, Miami Dade moved for judgment as a matter of law. The trial court granted the motion, finding that Santandreu had failed to show that additional leave would have enabled him to return to work in a reasonably definite period of time. The trial court also found that the DAR did not constitute retaliation because Santandreu had voluntarily resigned before the DAR became part of his record.

On appeal, the Eleventh Circuit affirmed the decision of the trial court. The court first rejected Santandreu’s argument that Miami Dade should have provided additional leave or transferred him to a vacant position. The court noted that Santandreu bore the burden of identifying an accommodation and demonstrating that the accommodation allowed him to perform the essential functions of his job. It further noted that the ADA does not require an employer to provide leave for an indefinite period of time when an employee is uncertain about the duration of his leave. The court found that Santandreu never demonstrated he could return to work within a reasonable time. Even after fifteen months of leave, he did not know when his doctor would allow him to resume working. Therefore, because Santandreu could not show that he could perform the essential functions of his job in the reasonably immediate future, his request for additional leave was not a request for a reasonable accommodation. For similar reasons, the court found that Miami Dade was not required to transfer Santandreu to another position. Since his medical condition prevented him from performing any work, he was not qualified for any alternate position.

Finally, the court found that Miami Dade did not retaliate against Santandreu by issuing him the DAR, because Santandreu voluntarily resigned in lieu of accepting or responding to the DAR. As such, the court found that Santandreu did not suffer an adverse employment action.

While this case does not establish a bright-line test that can be used by employers to determine when an employee’s requests for leave become unreasonable, it does provide some guidance. This case reaffirms that the employee bears the burden of showing a reasonably definite return-to-work date on which the employee will be able to perform the tasks required of him or her upon the employee’s return.

An employer who is faced with a situation like that in Santandreu should err on the side of caution when denying a request for leave. If the employee’s request for leave is reasonable in length and the employee will be able to perform the essential tasks required of him or her at the end of the period of leave, the leave should be granted. However, if the employee continuously requests time off, and has given no indication of returning to work, the employer may carefully consider discharging the employee so long as other reasonable accommodations, such as a transfer, are given serious consideration. Employers also should engage in the interactive process with the employee to ensure that they understand the employee’s condition and whether a reasonable accommodation exists in order to avoid liability under the ADA.

*Emily A. Smith practices at the firm’s Columbus, Ohio office in all areas of employment litigation. Emily has extensive experience in resolving ADA claims and helping employers create and implement medical leave policies and procedures. For more information about ADA compliance, or any other labor and employment issue, please contact Zashin & Rich at 614.224.4411.


The Dukes of Hazzard: OSHA and Workplace Bullying

By Scott Coghlan*

Earlier this year the Occupational Safety and Health Administration (“OSHA”) and the Department of Labor (“DOL”) filed suit against an employer for terminating an employee who reported workplace violence. OSHA argued that the employee’s discharge was tantamount to discharging an employee for complaining about unsafe work conditions. The fact that the alleged unsafe working conditions involved an employee’s fear of workplace violence made this case unusual.

The employee worked for Duane Thomas Marine Construction and its owner, Duane Thomas (“Thomas”). The employee claimed Thomas engaged in workplace violence and created hostile working conditions on several occasions between 2009 and 2011. Thomas allegedly was abusive, made inappropriate sexual comments, yelled, screamed, and withheld the employee’s paycheck.

The employee worked directly for and reported to Thomas. The employee claimed that Thomas’ verbal, mental, and emotional abuse in the workplace had forced her and a coworker to walk off the job. The next day, Thomas requested that the employee (and her coworker) return to work in exchange for Thomas’ promise to stop any workplace bullying or abuse. However, the employee alleged that the workplace bullying and abuse continued despite Thomas’ repeated promises to cease such behavior.

In February 2011, the employee filed a whistleblower complaint with OSHA. After filing this complaint, she alleged that Thomas retaliated against her due to her complaints. Thomas, upon receiving notice of the employee’s OSHA complaint, denied the employee remote access to files, and ultimately discharged the employee. After the employee’s discharge, the OSHA investigation found merit to the employee’s complaint.

This suit seems to indicate a shift in OSHA’s focus from addressing traditional workplace hazards toward protecting the overall health and well-being of employees. The General Duty clause of the Occupational Safety and Health Act of 1970 (“OSH Act”) requires “each employer to furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 USCS § 654(a)(1). OSHA has typically used the General Duty clause to enforce safety standards relating to industrial hazards such as high noise levels, chemical exposure, or electrical hazards. However, this case involves one of the first – if not the first – OSHA lawsuit against an employer for workplace bullying.

Historically, OSHA used the General Duty clause to cite hazards not yet addressed by a specific standard. Therefore, it makes sense that OSHA is now trying to combat workplace bullying through this clause because no specific provision in the OSH Act currently prevents bullying in the workplace. However, in order prevail on a general duty clause violation, OSHA must prove four basic elements: (1) the existence of an alleged condition or practice at the employer's workplace, (2) risk, presented by the alleged condition or practice, of event likely to cause death or serious physical harm, (3) employer or industry knowledge that the condition or practice is hazardous and exists or potentially exists at the employer's workplace, and (4) a feasible method by which the employer could have eliminated or materially reduced the alleged hazardous condition or practice.

Importantly, the OSH Act does not require that an employee’s concerns about workplace safety be valid. The alleged atmosphere of abuse and bullying caused by the employer and owner in this case may or may not have actually presented a valid safety hazard. Regardless, the OSH Act makes it unlawful for an employer to terminate an employee for complaining about a workplace safety concern. Employers must be wary not to retaliate against an employee who complains about workplace bullying, violence, or abuse, as it appears OSHA may subject them to a whistleblowing action.

In addition to liability under federal law, employees may also bring civil actions against employers under state law for workplace bullying. A number of theories of liability exist such as negligent hiring, supervision and retention, respondeat superior and failure to warn.

In order to combat workplace bullying and its legal implications, employers should consider workplace violence policies, which include reporting mechanisms for employees to report workplace violence or threats of violence. Employers should also conduct robust investigations of any and all complaints. Finally, employers can limit liability by fully investigating a potential new hire’s references for any patterns or signs of past violent behavior or improper work conduct.

*Scott Coghlan, the chair of the firms’ Workers’ Compensation Group, has extensive experience in all aspects of OSHA and workers’ compensation. For more information about OSHA compliance, please contact Scott (sc@zrlaw.com) at 216.696.4441.


Z&R SHORTS


State Law Update

On May 2, 2013, Maryland governor Martin O’Malley signed Senate Bill 4, making Maryland the ninth state to “ban the box,” removing questions about criminal history from state job applicants and postponing such questions until later in the hiring process. Maryland’s “ban the box” law applies to state applications and prohibits authorities in the judicial, legislative and executive branches of the Maryland State Government from inquiring into an applicant’s criminal history until after the applicant has been interviewed. This law, however, does not prohibit notifications to applicants that certain previous convictions may disqualify an applicant from consideration.

On May 21, 2013, Washington governor Jay Inslee signed Senate Bill 5211 into law, making Washington the latest state to ban employers from requiring or requesting that applicants and current employees disclose their username and password to their personal social media accounts. The law also prohibits an employer from requiring or coercing an applicant or current employee to add a person to the list of contacts or followers associated with the individual’s personal social networking account. However, this new law does not apply to a social network or intranet the employer uses to facilitate work-related information exchange.

On May 25, 2013, Nevada governor Brian Sandoval signed Senate Bill 127 into law, making Nevada the tenth state to prohibit employers from using credit information for employment purposes. The new law will become effective on October 1, 2013. This law prohibits employers from requiring or requesting an applicant or employee to submit credit information as a condition of employment. Employers also may not use or refer to credit information when making employment decisions. The law also prohibits an employer from refusing to hire an applicant or taking an adverse employment action against an employee who refuses to divulge credit information or who has filed a complaint or lawsuit under this law.

Zashin & Rich Continues its Columbus, Ohio Expansion

Zashin & Rich is pleased to announce the addition of Jonathan Downes to its Employment and Labor Group in its Columbus office. Jonathan Downes brings more than thirty years of experience and expertise in representing employers in all aspects of labor and employment law. In 1990, Jonathan co-founded a Columbus labor and employment law firm where he successfully represented public and private employers in all aspects of labor relations and human resource management. In addition to negotiating over 500 labor contracts, Jonathan has represented employers in hundreds of arbitrations, organizing campaigns, and administrative hearings. Jonathan has also defended employers in state courts, appellate courts, the Ohio Supreme Court, and the United States Court of Appeals for the Sixth Circuit.

Wednesday, July 31, 2013 4:20 pm
Stephen Zashin will be part of a panel presenting “Disability and Leaves of Absence: How to Combat the Rise in FMLA & ADA Claims (and Manage the Interplay Between Both) and Increased Policy Targeting by the EEOC” at the American Conference Institute’s 4th Annual Forum on Defending and Managing Employment Discrimination Litigation. For more details, go to AmericanConference.com/Discrimination.

Wednesday, August 21, 2013 8:30 pm
George Crisci presents “Internal Investigations” and “Separation of Employment” at the National Business Institute’s Employment Laws Made Simple in Akron, Ohio. For more details, go to www.nbi-sems.com.

Thursday, September 12, 2013
Jonathan Downes presents “Employment Law Update for Local Government” for the Ohio Government Finance Officers Association Annual Conference at the Hilton Columbus at Easton. For more details, go to www.ohgfoa.com.

Wednesday, November 13 2013
Jonathan Downes presents “Managing the Discipline Process” for the Ohio Association of Chiefs of Police at the Richfield BCII Facility. For more details, go to www.oacp.org.

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Thursday, August 30, 2012

EMPLOYMENT LAW QUARTERLY | Fall 2012, Volume XIV, Issue iii

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Putting a Price on Twitter Followers: The Importance of Employers Retaining Control of Their Social Media Accounts

By: B. Jason Rossiter*

A trade secrets suit accusing former PhoneDog LLC employee Nathan Kravitz of continuing to use a company Twitter account after his separation recently settled following litigation in the United States District Court for the Northern District of California.  Despite the case’s settlement and the lack of a formal court opinion, the case should serve as a warning to employers whose policies fail to address social media and related issues.

PhoneDog is an interactive mobile news web resource that reviews mobile products and services and allows users to research, price, and shop mobile carriers.  PhoneDog hired Kravitz in April 2006 as a product reviewer and video blogger and assigned him a Twitter account with the name (or handle) of “@PhoneDog_Noah”.  Kravitz regularly updated and submitted content (or tweeted) through the account.  PhoneDog assigned other employees Twitter accounts with similar names (“@PhoneDog_Name”) and claimed that all the Twitter accounts used by its employees, as well as the account passwords, constituted the company’s proprietary, confidential information.

Kravitz left PhoneDog in 2010.  After leaving PhoneDog, the company asked Kravitz to relinquish control of the Twitter account, which at the time had 17,000 followers.  Kravitz refused and instead changed the Twitter account name to “@noahkravitz”.  Kravitz continued to use the account and often tweeted to his followers, which had increased dramatically.

PhoneDog responded by filing suit for theft of company property, alleging $340,000 in damages calculated as $2.50 per follower per month for an eight month period.  PhoneDog claimed that Kravitz’s list of Twitter followers was akin to a client or customer list.  However, Kravitz’s attorneys presented documents demonstrating that PhoneDog had agreed to let Kravitz continue using the account following his separation and, in fact, asked him to continue tweeting occasionally on its behalf, which he did.  Under the only public terms of the parties’ settlement, Kravitz maintained sole custody of the account.

While the parties ultimately settled without a judicial decision, this case presents a valuable lesson for employers – that they should establish clear guidelines as to the use of social media and what happens to various social media accounts upon an employee’s discharge or separation.

*B. Jason Rossiter practices in all areas of employment litigation and is licensed to practice law in Ohio, Pennsylvania, and California.  Jason has extensive experience helping employers navigate through social media and related technology issues. For more information about this ever changing area, please contact Zashin & Rich at 216.696.4441.


Bad Medicine: Michigan Medical Marijuana Act Imposes No Restrictions on Private Employers Who Terminate Employees For Use of Medical Marijuana

By: Patrick M. Watts

The Sixth Circuit recently affirmed a district court’s dismissal of a former Wal-Mart employee’s claim of wrongful discharge.  The employee tested positive for marijuana, which he was using in accordance with the Michigan Medical Marijuana Act (“MMMA”).

The former Wal-Mart employee in Casias v. Wal-Mart Stores, Inc., used medical marijuana on the advice of his doctor and in accord with the MMMA.  The employee suffered from sinus cancer and an inoperable brain tumor.  When the employee suffered an injury at work, his manager took him to the hospital.  Pursuant to Wal-Mart’s policies, the hospital tested the employee for drugs, and he tested positive.  In response, the employee produced his user registry card to the hospital staff and explained that he was a qualifying patient under Michigan law.  He further stated that he did not use marijuana at work and that he did not come to work under the influence.

Wal-Mart’s corporate office directed the manager to discharge the employee for his use of marijuana.  The employee filed suit in state court, claiming wrongful discharge and violations of the MMMA.  Wal-Mart removed the case to federal court and moved to dismiss on the grounds that the employee failed to state a claim.  The district court dismissed the employee’s action for failure to state a claim.

The Sixth Circuit affirmed the district court’s ruling.  The court first analyzed and interpreted the statute, which provides that, “[a] qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act . . .”  Casias argued that the term “business” in the MMMA is independent, while Wal-Mart countered that it modifies the phrase “licensing board or bureau.”  The Sixth Circuit sided with Wal-Mart's interpretation.  The Court found that the MMMA imposes no restrictions on private employers, including Wal-Mart.  The MMMA does not refer in any way to employment.  The Court also noted that its interpretation was in line with those of courts in California, Montana, and Washington holding that similar state medical marijuana laws do not govern private employment actions.

This decision is likely to surface in Colorado and Washington, two states which have recently legalized the use of marijuana for more than medical use.  To combat the tension between state laws which allow for marijuana use, and federal laws which do not, some states have introduced bills to reconcile these differences.  For example, a U.S. Representative from Colorado has recently introduced legislation which urges the Department of Justice to respect Colorado’s state law and not prosecute those citizens who are in compliance with state law, even if in violation of federal law.

The laws governing the use of marijuana throughout the country are ever-changing and employers need to be wary of these changes and how they impact the workplace.


The Voters Have Spoken: What Employers Can Expect From President Obama’s Second Term

By: David R. Vance*

On November 6, 2012, Americans voted to keep President Barack Obama in office for another four years. What can employers expect from President Obama’s second term as President?

First, it is noteworthy that the GOP retained control of the House of Representatives.  This makes it unlikely that the President will be able to push through any sweeping legislation, at least not until after the 2014 midterm elections.  However, a Republican controlled House is nothing new to the President, and he has worked around it in two ways.  First, the President has issued a large number of Executive Orders.  Second, the President has urged various federal agencies, including the Equal Employment Opportunity Commission (“EEOC”) and the Occupational Safety and Health Administration (“OSHA”), to take expansive, aggressive positions on existing laws.  The President is expected to utilize similar actions in his second term.

OSHA is one such agency which may become much more active.  OSHA’s Injury and Illness Prevention Program has been in development for over three years, but the Agency is expected to make it a focus during Obama’s second term.  OSHA also is expected to put comprehensive rulemaking in place to regulate crystalline silica, which is a form of quartz to which workers performing blasting, foundry work, tunneling, and sandblasting regularly are exposed.  Finally, OSHA has proposed stricter injury and illness reporting obligations on employers.  These regulations would require employers to report workplace amputations to OSHA within 24 hours, as well as all inpatient hospitalizations within eight (8) hours.

The EEOC is expected to take similar actions.  The EEOC’s Strategic Enforcement Plan calls for taking action against employers who require pregnant employees to take medical leaves of absence if they are unable to perform their job duties.  Currently, reasonable accommodation of normal pregnancy is not required.  The EEOC also intends to enforce non-discrimination against individuals based on their lesbian, gay, bisexual, or transgender status.  Currently, some courts have said that “gender stereotyping” and discrimination based on gender identity is a form of sex discrimination, but Title VII does not directly address this, and it does not prohibit discrimination based on sexual orientation.

The National Labor Relations Board (“NLRB”) has been aggressive during the last four years and that is not expected to change.  During the President’s first term, the Board’s decisions and rulemaking have favored organized labor.  This trend is expected to continue into the President’s second term.  Based on the Board’s actions during the President’s first term, employers should expect more Board decisions and opinions invalidating employer social media policies, taking a dim view toward employment-at-will disclaimers, and taking an expansive view on protected concerted activity.

President Obama’s reelection also means that the Patient Protection and Affordable Care Act (“PPACA”) is here to stay.  The three federal agencies tasked with PPACA’s enforcement are expected to move quickly to promulgate new regulations.  Although several legal challenges are still moving through the courts, employers need to ensure that they are compliant with the requirements of the Act.

Employers must also navigate new legalized marijuana statutes in two states.  Voters in Colorado and Washington have approved legalization of the sale or possession of marijuana in small amounts.  However, employers operating in these states should note that legalized marijuana may not affect the exclusion from protection under the Americans with Disabilities Act for “current use of illegal drugs.”  This is true because the illegal drug definitions in the ADA are based on federal law.  In other words, under the ADA as currently enacted, it may not be a violation for a Colorado or Washington employer to take action against an employee for testing positive for marijuana.  This is far from a settled area, however, as representatives in Congress from both states have introduced federal legislation asking the federal government to respect their states’ laws.

These are but a few of the changes and issues the President’s second term may pose for employers.  If the President’s first four years were any indication, employers can expect many more changes.

*David R. Vance practices in all areas of labor & employment law and has extensive experience dealing with administrative agencies, particularly the EEOC. If you have any questions on how any of these potential changes may affect your company, please contact David (drv@zrlaw.com) at 216.696.4441.


Does Your Company Need Employment Practices Liability Insurance?

By: Stephen S. Zashin*

Many employers maintain insurance coverage for the defense of claims brought by current or former employees.  This type of insurance is commonly known as employment practices liability insurance (“EPLI”).  EPLI policies typically provide coverage for a broad-range of claims including discrimination, retaliation, harassment and wrongful termination.  Most EPLI policies also cover other workplace torts.

Certain EPLI policies exclude coverage for claims arising under the National Labor Relations Act, the Worker Adjustment and Retraining Notification Act, the Employee Retirement Income Security Act, Occupation Safety and Health Administration claims, claims for punitive damages, claims alleging intentional acts and claims arising under workers’ compensation laws.  When purchasing a policy, employers need to be aware of any exclusions to the policy.  However, even with potential exclusions, most EPLI policies offer substantial coverage and can be tailored to the needs of an employer’s business.

Employers can purchase EPLI policies with coverage amounts up to millions of dollars.  EPLI policies generally include a deductible, which is often referred to as a self-insured retention, which varies based on the cost of the policy.  Typically, the cost of legal defense is included in the aggregate insurance limits, along with the costs of judgments and settlements.  The assignment of legal counsel is outlined in policy.  Oftentimes, the insurance company may appoint counsel from a pre-approved list of “panel counsel.”  Members of these pre-approved panels often have a continuing relationship with the insurance company and are selected based on their skill in defending employment based claims.

EPLI coverage is usually written on a claims-made basis.  This means the incident resulting in the claim must have occurred during the coverage period.  Employers often cannot forecast when a claim may be filed against them, and employees often file such claims months or even years after the alleged discrimination, harassment, or discharge occurred.  Therefore, it is important for employers to maintain consistent coverage.

No matter how carefully and skillfully an employer manages workplace conduct, a potential for a claim always exists.  The number of discrimination claims filed with the Equal Employment Opportunity Commission alone has steadily risen over the past few years, as has the amount of damages the EEOC has collected.  EPLI coverage can be an excellent resource for employers defending against an ever increasing number of employment related lawsuits and can help control the legal costs associated with such lawsuits.

The best way to avoid litigation is to establish strong workplace rules and strictly enforce them.  However, an employer’s management of workplace conduct is not foolproof and with employee lawsuits on the rise, now is good time for employers to consider obtaining an EPLI policy or renegotiating their current policy.

*Zashin & Rich Co., L.P.A. is approved to defend claims covered by most EPLI carriers. Stephen Zashin, an OSBA Certified Specialist in Labor and Employment Law and the head of the firm’s labor and employment group, has worked closely with numerous representatives from various insurance providers and can help put those relationships to work for you. For more information about EPLI coverage and how it can help protect your business, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.

Time Is Not On Your Side: Ohio Supreme Court Interprets 90-Day Notice Requirement Following Discharge for Workers’ Compensation Retaliation Claims

By: Scott Coghlan*

Recently, the Ohio Supreme Court addressed when the 90-day period begins for a discharged employee to notify his or employer of a possible workers’ compensation retaliation claim under Ohio Revised Code Section 4123.90.  Under R.C. 4123.90, employers are prohibited from taking retaliatory action—defined as discharging, reassigning, demoting, or taking any other punitive action—against an employee following the employee’s pursuit of benefits associated with workers’ compensation.  The Court held that, as a general rule, the 90-day period begins to run on the date the employee is discharged.  However, the employer has an affirmative duty to notify the employee of the discharge within a reasonable period of time following the discharge so as not to interfere with the employee’s 90-day period.

In Lawrence v. City of Youngstown, the City of Youngstown suspended employee Keith Lawrence without pay.  Two days later, the city terminated Lawrence’s employment.  Lawrence alleged that he never received a copy of the termination letter.  Lawrence filed his complaint against the city in Mahoning County Common Pleas Court on July 6, 2007, alleging workers’ compensation retaliation under R.C. 4123.90 and racial discrimination.  In support of Lawrence’s R.C. 4123.90 claim, the complaint asserted that he had filed a workers’ compensation claim against the city and that his termination related to the filing.

After holding a hearing, the trial court ruled in Youngtown’s favor, and the magistrate granted summary judgment in favor of Youngstown.  As to Lawrence’s R.C. 4123.90 claim, the magistrate construed the disputed facts in favor of Lawrence and assumed that he did not know of his discharge until February 19, 2007.  However, the magistrate concluded that the operative date for starting the 90-day notification period was January 9, 2007, the date the city’s records indicated it discharged Lawrence, and that Lawrence’s delayed awareness of the termination was not relevant.

The Seventh District Court of Appeals affirmed.  As to the sole issue appealed by Lawrence, the court held that R.C. 4123.90’s 90-day notice period begins on the date of actual discharge, not the date the employee receives notice of his or her discharge.  Therefore, the appellate court determined that the trial court had no jurisdiction over the retaliation claim because Lawrence’s notice to his employer was received more than “ninety days immediately following the discharge.”

The Ohio Supreme court reversed the appellate court’s decision.  It held that “discharge” as used in R.C. 4123.90 means the date that the employer issued the notice of discharge, not the date of the employee’s receipt of that notice or the date of the employee’s discovery of a R.C. 4123.90 cause of action.  In this case, the employer apparently never sent a written notice to the employee (it sent it to the Union instead).  Lawrence eventually learned of his discharge, but his attorney did not send his notice of the claim until more than 90 days after Lawrence’s discharge (but less than 90 days after Lawrence received notice of his discharge).  The Court held that the lack of notice to the employee precluded dismissal of the case for failure to comply with the 90-day notice requirement.  The Court also concluded that R.C. 4123.90, when read in conjunction with R.C. 4123.95, places an implicit affirmative responsibility on an employer to provide its employee notice of the employee’s discharge within a reasonable time after the discharge occurs in order to avoid impeding the discharged employee’s 90-day notification obligation under R.C. 4123.90.  The Court reasoned that a reasonable time for an employer to inform an employee of a discharge is an inquiry dependent on the facts of each situation.  The Court did opine though that a delay of several days would not prevent the 90-day notification period from beginning to run on the actual day of the discharge.

Based upon this decision, employers should provide their employees with clear and timely notice of their discharges within a reasonable time after the discharge occurs.  According to the Ohio Supreme Court, this ensures that an employee will not be given additional time to meet his or her 90-day notice obligation.

*Scott Coghlan, the chair of the firms’ Workers’ Compensation Group, has extensive experience in all aspects of workers’ compensation law. For more information about workers’ compensation compliance, please contact Scott (sc@zrlaw.com) at 216.696.4441.


Z&R Shorts

Zashin & Rich Co., L.P.A. is pleased to announce the addition of Helena Oroz, Emily A. Smith, and Jonathan D. Decker to its Employment and Labor Group.

Helena’s practice encompasses all aspects of general workplace counseling, compliance, and employment litigation defense work.  After working as employment counsel for a Fortune-500 company and representing employers at an internationally esteemed law firm, Helena returned to Z&R to put her varied experiences and sharpened expertise to work for the firm's clients.

Emily’s practice focuses on labor relations, equal employment opportunity, employment discrimination, unfair competition, and all other employment related torts.  Prior to joining Z&R, Emily practiced in the areas of director and officer liability insurance coverage, employment practices liability coverage, and other professional liability coverage.  Emily practices in Z&R’s Columbus office.

Jonathan's practice encompasses all areas of employment and labor law, including employment discrimination, retaliation, and labor relations.  Jonathan earned his law degree from Cleveland-Marshall College of Law. While in law school, Jonathan was a legal extern with the United States Equal Employment Opportunity Commission. Jonathan also was a member of the school's nationally-ranked moot court team, where he earned the Lewis F. Powell Medal for Excellence in Oral Advocacy.
Please join us in welcoming Helena, Emily, and Jonathan to Z&R!

Ohio’s 2013 Minimum Wage Increase

On January 1, 2013, Ohio’s minimum wage will increase.  The new wage will increase by $.15 per hour to $7.85 for non-tipped employees.  The new minimum for tipped employees will be $3.93 per hour, plus tips, a wage increase of $.08 per hour.

There is also a slight change for companies that have to pay minimum wage.  As of next year, the minimum wage will apply to businesses with annual gross receipts of $288,000, a $5,000 increase over this year.  Companies with gross receipts under $288,000 must pay the federal minimum wage of $7.25 per hour.  The federal rate also applies to 14- and 15-year-old employees.
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Wednesday, May 25, 2011

The Employment and Labor Group at Zashin & Rich is now tweeting!

The law of the workplace can change rapidly, and Zashin & Rich’s tweets will keep you up to date concerning the latest developments in employment and labor law.

Follow us on Twitter @ZashinRich
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Friday, November 5, 2010

FACEBOOKED: Does your company need to revise its social media policy?

*By Jason Rossiter and Patrick J. Hoban

With the onslaught of Facebook, Twitter, and related social networking services, many employers drafted aggressive policies regarding employee use of social media. Now, many of those polices may be in jeopardy.

The National Labor Relations Board (“NLRB”) recently issued a complaint against an employer that fired an employee who posted negative remarks about her supervisor on her personal Facebook page. The negative remarks drew supportive "comments" from her co-workers, which in turn led to further negative comments being made about this supervisor from the employee. The employee was fired three weeks later.

The NLRB took the position that the employee’s posting on her personal Facebook page constituted protected concerted activity. The NLRB stated its belief that the company’s social media policy, which also covered blogging and internet posting, contained unlawful provisions. Specifically, in its policy, the company prohibited “employees from making disparaging remarks when discussing the company or supervisors” and “depicting the company in any way over the internet without company permission.” The NLRB concluded that this policy language interfered with the employees’ exercise of their rights to engage in protected concerted activity.

Though no court has yet adopted the NLRB's position, it is nonetheless likely that, given the NLRB's broad authority, its decision to pursue this case could have a far-reaching effect on how far employers can safely go in enacting social media, blogging, and internet policies. The NLRB's complaint could also have the effect of greatly limiting the extent to which employers can control employees' off-duty internet use – including in workplaces that do not have labor unions.

The NLRB has scheduled an administrative hearing for January 25, 2011. Until then, employers should carefully review their social media policies and watch for further updates. Based upon the NLRB’s position in this case, employers face an increased risk for disciplining employees who use social media to criticize their employer. Such discipline may result in an unfair labor practice charge. If you have questions about whether your company’s social media policy is at risk of violating the National Labor Relations Act or any other laws, please feel free to contact us.

*Jason Rossiter and Patrick J. Hoban, have extensive experience in all aspects of workplace law, including drafting and implementing social media policies for union and non-union employers. For more information about the use of a social media policy, please contact  Pat (pjh@zrlaw.com) at 216.696.4441.
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Tuesday, December 22, 2009

EMPLOYMENT LAW QUARTERLY | Fall 2009, Volume XI, Issue IV

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ACCESS DENIED: Court Upholds Jury Verdict Against Employer That Improperly Accessed Employees’ MySpace Pages

By: David R. Vance*

The District of New Jersey upheld a jury verdict against an employer who terminated two former employees after viewing their MySpace pages (www.myspace.com). See Pietrylo v. Hillstone Restaurant Group, No. 06-5754, 2009 U.S. Dist. LEXIS 88702, at *1 (D.N.J. Sept. 25, 2009). The employer, Houston’s Restaurant, alleged that the employees damaged employee morale and violated the restaurant’s “core values” by posting comments and holding chats about the restaurant’s management through their MySpace accounts. However, the former employees successfully argued that Houston’s Restaurant violated a federal Wiretap Act, a parallel act under New Jersey law, and the federal Stored Communications Act by logging into their MySpace accounts.

Upon learning that the employees held chats and posted comments through MySpace’s Spect-Tator (a chat group on myspace.com which is only accessible by invitation and then by password) about Houston’s management, the managers requested the employees’ password and log-in information. However, the managers failed to receive written or verbal authorization from the employees to access their MySpace accounts.

The jury determined that the managers accessed the employees’ password-protected websites five times without authorization. Because no direct evidence of authorization existed, the jury relied on testimony from employees in reaching its decision. One of the employees testified that while she provided her managers with her password and log-in information, she did not authorize them to access her account. The only reason she gave them her account information was because she felt she would get in trouble if she failed to do so.

The jury concluded the managers had the requisite state of mind and that the repeated visits to the website showed their actions were purposeful or intentional. The jury awarded nominal compensatory damages for back pay. The District Court upheld the jury’s award of punitive damages because the managers acted maliciously in repeatedly accessing the website.

This case puts employers on notice that they should not access employee websites or personal pages without authorization and even then should be cautious in doing so. In situations where access to an employee’s personal website is necessary, the authorization should be explicit.

*David R. Vance practices in all areas of labor and employment law. For more information about employee privacy or any other labor or employment issue, contact David at 216.696.4441 or drv@zrlaw.com.

The Role Of Economists In Reductions-In-Force Analysis

By: Audrius Girnius, PhD Huron Consulting Group*

The economic downturn has hit the U.S. labor market nearly as hard as the stock market over the last two years. The national unemployment rate has reached its highest point since the early 1980s and, according to the Department of Labor’s figures, it jumped to 10.2% in October, 2009. See, http://www.bls.gov/news.release/empsit.nr0.htm. A significant factor in the increased unemployment rate is large-scale layoffs – Reductions-in-Force (RIFs). Many large and prominent companies have had to make the tough decision to reduce their workforce, and more reductions are likely to come. This environment is rife with potential for litigation on various discrimination claims, with age discrimination (ADEA) claims particularly common.

An organization considering a RIF can take several simple proactive steps to help reduce its potential litigation risks. An organization should allow for sufficient time in the process for consideration of potential adverse impact, document their decision-making, and work with a statistical expert to determine whether the resulting change in the composition of employees may be evidence of adverse impact or explained by business-related factors.

The main task for a statistical expert is to conduct an analysis to determine whether the terminations will affect disproportionately a protected group. The statistical analysis of potential adverse impact from a RIF might, for example, compare (a) the proportion of older employees among the affected employees with (b) the proportion of older employees in the “at risk” population. The “at risk” population consists only of those employees who were considered for the RIF. For instance, if the RIF were to affect only employees in the IT department, the “at risk” population would be all employees in the IT department. The reason for comparison of the affected employees to the “at risk” population is straightforward. If the selection process is random with regard to age, then the affected employees should be representative of the “at risk” employees. In our example, if 50 percent of IT employees were over the age of 40, one would expect that about 50 percent of the affected employees would be over the age of 40. If a disproportionately high number of the affected employees are over the age of 40, one must perform a statistical test to determine whether this difference is statistically significant. Such statistical evidence may be used to support a claim of age discrimination. The example above focuses on age but there are other categories, such as race or gender, that may be critical to a statistical analysis. There are two important steps in an adverse impact analysis in a RIF, creating an “at-risk” group and conducting a statistical analysis.

Creating an “At-Risk” Group
The first step in a RIF is to identify the correct pool of employees at risk. Without a proper identification, any statistical analysis can yield spurious results. A statistical analysis on a faulty “at risk” grouping can result in a faulty finding of statistically significant adverse impact.

Conducting Statistical Tests
The second important step is to conduct a statistical analysis of the outcome of the RIF. Two alternative tests are frequently used to determine the level of statistical significance. The first is called a chi-squared test and the other is called the Fisher’s exact test. The chi-squared test compares the actual number of older employees in the “at risk” group to the expected number and calculates a test statistic. If the corresponding probability value test is less than five percent, the overrepresentation of older employees is considered statistically significant. Statistical tests that show that a particular outcome has less than a five percent chance of resulting from random chance is considered statistically significant.

The Fisher’s exact test calculates the probability of each possible outcome which would show a greater overrepresentation of older employees than the proposed RIF. Once all of the probabilities have been calculated, they are summed and if the resulting sum is less than five percent, the outcome is considered statistically significant. In essence, this test calculates how many more extreme and over-representative distributions exist. If the particular distribution of older affected workers is extreme enough, this test finds the distribution to be statistically significant. One advantage of the Fisher’s exact test is it is appropriate even for small sample sizes. Thus, even if the correct “at risk” groups are small, a valid test of adverse effects is still available.

Notably, both the chi-squared and a Fisher’s exact test have only two dimensions: the protected class and whether affected. Other explanatory factors, such as experience, performance, and education that could impact a decision to terminate an employee, are not accounted for in these tests. In instances where such factors can be explanatory, an economist may use a logistic regression. A logistic regression models the decision-making process by including all factors that were used by the decision-makers to determine who was to be chosen for the RIF. As with the two tests described earlier, a logistic regression also calculates the statistical significance of age in the decision-making process so it can be used as empirical evidence in a case of age discrimination.

While conducting a RIF is a difficult and unpleasant process, an economist can assist decision-makers in ensuring that the process is statistically sound and help mitigate potential liability. An economist can assist with creating the correct “at risk” groupings and can conduct a statistical analysis to determine whether an adverse impact has occurred in a particular RIF. The economists at Huron Consulting Group have assisted Zashin & Rich Co., L.P.A with statistical analyses related to employment decisions/lay-offs for numerous clients.

*Audrius Girnius, PhD, a Director with Huron Consulting Group, specializes in the application of microeconomics, statistics, and econometrics to complex problems in employment and labor litigation. Audrius has developed innovative economic models to analyze a variety of complex issues involving employment and labor and economic damages. If Huron can be of assistance to you, please contact Audrius at 646.520.0068 or agirnius@huronconsultinggroup.com.

GINA Took Effect On November 21, 2009 – New EEOC Poster Required

By: Jessica T. Tucci

Title II of the Genetic Information Nondiscrimination Act (“GINA” or the “Act”) grants the Equal Employment Opportunity Commission (“EEOC”) the authority to police workplace discrimination based on genetic information. GINA prohibits the use of genetic information when making decisions related to any term, condition or privilege of employment. Further, the Act prohibits employers from requiring, requesting or purchasing genetic information. The Act applies to private employers and state and local government employers with fifteen or more employees. Genetic information includes information resulting from employee or family member genetic testing. Such tests include the analysis of DNA, RNA or chromosomes. Genetic information also includes information regarding a disease or disorder of an employee’s family member.

While the Act strictly prohibits the use of genetic information in making employment related decisions, some exceptions exist that allow employers to request or acquire genetic information. For example, an employer does not violate GINA when it inadvertently acquires an employee’s medical history or offers health or genetic services as part of a wellness program. Additionally, an employer does not violate GINA if the employee gives prior voluntary informed written consent. However, GINA does not exempt well intentioned genetic information collections such as collecting DNA to perform a criminal background check. Absent some enumerated exceptions, employers likely violate the Act by using DNA to conduct a background check.

GINA does not directly prohibit harassment, although its prohibiting language is similar to the prohibiting language of Title VII and other equal employment statutes. Therefore, the EEOC predicts an inferred harassment cause of action exists under GINA. At this time, GINA expressly rejects a disparate impact cause of action.

GINA’s remedies include reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and non-pecuniary damages and attorneys’ fees. Similar to Title VII, GINA caps compensatory and punitive damages. Finally, punitive damages are not available against federal, state or local government employers.

Immediate compliance with GINA requires employers to post the most recent version of the “Equal Employment Opportunity is the Law” poster or post its supplement. The revised poster and its supplement can be found at http://www.dol.gov/ofccp/regs/compliance/posters/ofccpost.htm. Employers should also revise all stated anti-discrimination policies to include GINA.

THE ENEMY WITHIN: Dealing With Disloyal Employees

By: Jason Rossiter*

Congress enacted the Computer Fraud and Abuse Act (“CFAA”) to reduce the cracking of computer systems and to address computer related crimes. Since its enactment in 1984, employers have attempted to use the CFAA as a mechanism to bring actions against former employees that took or misused the employers’ data or confidential information. However, courts are continuing to limit employer’s ability to do so by narrowly construing whether an employee’s use of a company computer is “unauthorized”.

The Ninth Circuit in LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009) recently ruled that whether an employee’s use of a work computer is “without authorization” under the CFAA turns on the employer’s policies and definitions of acceptable use and not the employee’s state of mind. The employee in Brekka emailed corporate documents containing the company’s proprietary information to his personal email account. Since the company did not maintain a policy against emailing proprietary information, the Court could not find that the employee engaged in “unauthorized” use of his work computer as defined by the CFAA. Rather, the Court held that the CFAA permits employers to pursue claims against ex-employees that have stolen proprietary information only when the theft violates a clearly defined limit to access of company networks.

The case marks a continuing trend away from allowing employers to use CFAA in trade secret cases against former employees. It basically prohibits those employers without a policy explaining acceptable computer use from pursuing a CFAA claim. Employers, however, can still pursue alternative claims (e.g., breach of a nondisclosure agreement or misappropriation of trade secrets).

In light of the Court’s ruling, employers should revisit their data confidentiality and technology use policies. Company data and use and confidentiality agreements should include all potential causes of action – breach of contract, intellectual property infringement, trade secret, computer crime, etc. – so as to best protect the company from disloyal former employees. In order to maintain an action under the CFAA, companies also must clearly define authorized use within their technology policies.

*Jason Rossiter has extensive experience representing employers in litigating and arbitrating workplace disputes in Ohio, California, and throughout the country. For more information about the CFAA or any other labor or employment issue, please contact Zashin & Rich at 216.696.4441.

EMPLOYEE RESTRICTED, EMPLOYER CONFLICTED: When Disabled Employees Want To Return To Work

By: Lois A. Gruhin

In July 2009, the U.S. Equal Employment Opportunity Commission (“EEOC”) settled a class action disability lawsuit with an Ohio based company. In that case, the company agreed to pay more than $90,000 and offer jobs to employees it allegedly subjected to discrimination.  The EEOC alleged that the company violated the Americans with Disabilities Act (“ADA”) by failing to permit disabled employees to return to work without a full-duty, no-restriction doctor’s release.

In the U.S. District Court for the Southern District of Ohio, the EEOC argued that disabled employees out on leave should be permitted to return to work regardless of whether they still have some physical restrictions, so long as they are able to perform their jobs.  The company, however, maintained a policy requiring these same employees to obtain a full-duty, no-restriction doctor’s release prior to returning.  The company’s policy adversely affected over 80 employees in Ohio and several surrounding states.  Laurie Young, an EEOC attorney from the office in which the case was brought said, “Employers should be aware that the most recent amendments to the ADA became effective on January 1 of this year, and those amendments made substantial changes to the ADA as interpreted by the court.”

This case reminds employers to check their policies to assure compliance with the Americans with Disabilities Act Amendments Act (“ADAAA”).  Additionally, employers must revise those policies that fail to meet the ADAAA’s requirements.  Lastly, employers must be particularly careful when workers’ compensation laws, the Family and Medical Leave Act and the ADA intersect.

Z&R SHORTS


Speaking Engagements January 29, 2010
George Crisci will be presenting Mandatory Bargaining Subjects in Public Sector Collective Bargaining for the ABA Labor & Employment Sections' Committee on State and Local Government Collective Bargaining and Employment Law.
For more information go to www.abanet.org.

February 16, 2010
Steve Dlott will be presenting “How to Defend a Workers’ Compensation Claim” for the Medina Safety Council. For more information go to www.medinasafetycouncil.com.

June 8, 2010
Patrick Watts will be one of the presenters of “Employment Law Alphabet Soup” for the National Business Institute. For more information go to www.nbi-sems.com.
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