Showing posts with label Transgender. Show all posts
Showing posts with label Transgender. Show all posts

Wednesday, May 21, 2025

Texas Court Clears Path for Rollback of EEOC Gender Identity Guidance

By Ami J. Patel and Stephen S. Zashin*

On May 15, 2025, the U.S. District Court for the Northern District of Texas vacated portions of the EEOC’s Enforcement Guidance on Harassment in the Workplace, holding that the agency exceeded its statutory authority by interpreting Title VII’s prohibition on sex discrimination to include harassment based on gender identity. The court found that the EEOC's guidance was contrary to Title VII’s plain text by expanding the definition of “sex” to include “sexual orientation and gender identity” which is according to the court, “beyond the biological binary: male and female.” Next, the court found that the EEOC guidance “contravenes Title VII by defining discriminatory‘ harassment’ to include transgender bathroom, pronouns, and dress preferences. ”Therefore, the court found that the EEOC’s guidance went beyond summarizing existing law and instead “fundamentally expands Title VII to include harassment based on gender identity,” specifically by treating the denial of access to bathrooms aligned with a person’s gender identity, enforcement of dress codes inconsistent with gender identity, and the intentional use of names or pronouns inconsistent with a person’s gender identity as unlawful harassment. The court described the EEOC’s Guidance’s reliance and interpretation of Bostock v. Clayton County as a “misreading of Bostock.” (Note: Bostock is the case which held that terminating an employee for being homosexual or transgender violates Title VII’s prohibition on sex discrimination).

Following the court’s May 15, 2025 ruling, the EEOC announced that it could not rescind or revise the Guidance due to the Commission’s lack of quorum—a procedural issue that has persisted since the start of the new administration. In the meantime, the EEOC has labeled and shaded the vacated provisions on its website and is currently reviewing other materials for consistency with the court’s decision.

Employers should take note that while the vacated provisions no longer carry legal weight, the underlying issues remain active and contested. EEOC investigators and plaintiffs may continue to explore similar theories under other frameworks, and state or local laws may impose independent obligations related to sexual orientation or gender identity. While the exact contours of Title VII continue to grow hazy, Employers should continue to handle complaints involving gender identity thoughtfully, with an emphasis on consistency, documentation, and awareness of jurisdiction-specific requirements. Zashin & Rich will continue to monitor developments in Title VII enforcement and is available to assist with any questions regarding compliance or policy updates.

*Ami J. Patel (Z&R’s Practice Leader for Trade Secrets/Non-competes) and Stephen S. Zashin (Z&R’s Managing Partner) have extensive experience representing employers in discrimination, harassment, and other workplace enforcement matters. If you have questions about the changes occurring under Title VII, please contact Ami J. Patel (ajp@zrlaw.com) or Stephen S. Zashin at (ssz@zrlaw.com) via email or by phone at 216.696.4441.
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Wednesday, October 6, 2021

EMPLOYMENT LAW QUARTERLY | Volume XXIII, Issue ii

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Employers, OSHA’s Emergency Temporary Standard is Coming. Are You Ready?

By David R. Vance*

The Biden Administration recently announced that it directed the Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) requiring employers to have their employees test negative for COVID-19 each week or get vaccinated. The ETS applies to employers with 100 or more employees. For additional information about the ETS, please see Zashin & Rich’s alert available here. This article provides helpful information for employers that intend to require weekly testing, as compared to mandating the vaccine. Employers with mandatory COVID-19 vaccination policies should also require testing for employees who are exempt from their mandatory vaccination policy based on a medical reason or a sincerely held religious belief.

Depending on the size of your workforce and its level of vaccination, weekly testing can present a significant administrative burden that requires additional staff or the reshuffling of job duties. In addition to creating a weekly testing infrastructure and possibly hiring new employees, additional employer testing considerations include when employees will test, how will employees report their test results, how will employers store the test results, should employers pay employees for the time it takes to test, where will employees test, etc.

While the ETS likely will address some of these questions, the government already has addressed some. For example, the Department of Labor has stated that the Fair Labor Standards Act requires employers to pay employees for employer mandated testing, particularly when such testing occurs during the employee’s normal workday. Employers also likely must compensate non-exempt employees for mandatory tests occurring outside normal work hours. The time involved with taking a COVID-19 test, including the time it takes to receive the test results, varies widely based on the type of test. Since employers should pay employees for testing time, employers will want to limit the time spent testing to the greatest extent possible.

For most employers, the most efficient and cost-effective testing method is rapid antigen testing completed at the employer’s location. Most antigen tests are easy to administer, can detect the presence of COVID-19 in just 15 minutes, and numerous companies provide them.

The COVID-19 pandemic has resulted in significant growth in the rapid test industry. The expected testing requirement under the ETS works similarly to requiring attendees at concerts or sporting events to test negative for COVID-19 before entering such events. Companies like KOACORE (www.koacore.com) have handled many of these types of events and can provide the rapid antigen tests and other testing solutions.

Unfortunately, rapid tests remain increasingly difficult to obtain. Once OSHA issues its ETS, they likely will become even more difficult to obtain. Employers that intend to allow employees to test weekly, as compared to mandating the vaccine, should begin discussions with third party providers (like KOACORE) to ensure they have tests readily available when the ETS takes effect.

We expect legal challenges to OSHA’s ETS. While it is difficult to discern the outcome of any such challenges, OSHA may have a difficult time proving the need for the emergency temporary standard. Regardless, employers should plan as if the ETS will take effect. By controlling the method of testing, employers can control the associated costs and timing of such testing. Doing so also avoids constant employee questions relative to testing locations, types of approved tests, and delayed PCR test results, among other questions.

As with all things COVID-19 related, a number of moving parts exist and employers should contact counsel to evaluate their options and intended plans of action.

*David R. Vance, an OSBA Certified Specialist in Labor and Employment Law, regularly advises clients on labor and employment matters. If you have questions regarding COVID-19’s continued impact on the workplace or other employment matters, please contact David at drv@zrlaw.com or (216) 696-4441.

NLRB: Vague “Savings Clause” Fails to Salvage Overbroad Arbitration Agreement

By Scott H. DeHart*

Arbitration is a popular alternative to litigating employment disputes in court and for good reason: arbitration has many distinct advantages that may include lower costs, quicker results, simpler procedures, and greater confidentiality. Arbitration’s favored status with employers received a major boost in 2018, when the U.S. Supreme Court issued its decision in Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612 (2018). In Epic Systems, the Court held arbitration agreements containing class action (or collective action) waivers - and which require that employment disputes resolve by individualized arbitration – do not violate the National Labor Relations Act (“NLRA”) and are enforceable under the Federal Arbitration Act (“FAA”).

Surely with such a ringing endorsement of mandatory employment arbitration agreements from the nation’s top Court, employers could expect little scrutiny of such policies by the National Labor Relations Board (“Board”) right? Unfortunately, as illustrated by a recent Board decision, the Board did not read Epic Systems to allow employers to run roughshod over employees’ collective-bargaining rights.

In Brinker Int’l Payroll Company L.P., 370 NLRB No. 137 (June 11, 2021), the Board found that a company had committed an unfair labor practice (“ULP”) by compelling its employees to sign a mandatory arbitration agreement that unlawfully restricted the employees’ access to the Board and its processes. Although the company attempted to narrow the scope of its policy with a “savings clause,” the Board found that the savings language did not salvage the company’s unlawful policy.

Since at least 2013, Brinker required its employees (as a condition of their employment) to sign an agreement that required “binding arbitration” of “all disputes involving legally-protected rights (e.g., local, state and federal statutory, contractual or common law right(s)) regardless of whether the statute was enacted or common law doctrine was recognized at the time this agreement was signed.” In 2015, the Board held that Brinker’s policy violated the NLRA. Applying the labor law precedents at that time, the Board found unlawful Brinker’s policy because it required employees to waive their right to pursue class and collective actions in any forum. The Board also found the policy unlawful because it restricted employees’ rights to file ULP charges with the Board. The Board sought enforcement of its ruling against Brinker in the U.S Court of Appeals for the Fifth Circuit. That case remained pending in 2018 when the U.S. Supreme Court issued its decision in Epic Systems. Based on the Supreme Court’s decision, the Fifth Circuit denied enforcement of the Board’s order and returned the case to the Board for additional proceedings.

Taking up Brinker’s arbitration policy for a second time, the Board explained that the FAA’s mandate (to enforce arbitration agreements) is not absolute – it can be overridden by a contrary command from Congress. The Board’s power and responsibility to prevent ULPs is one such command – in other words, “the FAA does not authorize the maintenance or enforcement of [arbitration] agreements that interfere with the right to file charges with the Board.” Brinker, 370 NLRB No. 137, Slip op. at *2. The Board explained that an arbitration agreement that expressly prohibits an employee from filing ULP is unlawful. However, the inquiry does not stop there. The Board established a balancing test in Boeing, 365 NLRB No. 154 (2017) to evaluate whether employer policies pass muster under the NLRA. Under Boeing, some policies are always lawful to maintain (Category #1), others are always unlawful to maintain (Category #3), and others require individual scrutiny by the Board (Category #2).

The Board considered the language of Brinker’s policy and found that it made arbitration the “exclusive forum for resolving all disputes” with Brinker’s employees, which would include claims brought under the NLRA. Because this language restricted employees’ access to the Board, the Board found Brinker’s policy unlawful.

“But wait!” responded Brinker – the mandatory arbitration agreement had a “savings clause” that told employees that the agreement “does not limit an employee’s ability to complete any external administrative remedy (such as with the EEOC).” Surely this would stop employees from wrongly interpreting the policy as a restriction on their right to file ULP charges? Not quite, according to the Board.

Yes, employers might salvage an otherwise overbroad arbitration agreement with a “savings clause” stating that employees “retain the right to file charges with the Board, even if the agreement otherwise includes claims arising under the [NLRA] and within its scope.” But the savings language must explicitly inform employees that they retain the right to file charges and to access the processes of administrative agencies (even if “the Board” or “the NLRB” is not named specifically). Brinker’s “savings clause” made a reference to an “administrative remedy,” but it named the Equal Employment Opportunity Commission (“EEOC”) and not the NLRB. This reference to the EEOC, a “competing” federal agency according to the Board, canceled out any benefits that the savings clause might have had to “safeguard employees’ right to file [ULP]” charges. The Board assigned Brinker’s agreement to Boeing “Category #3” (always unlawful) and ordered Brinker to rescind its arbitration agreements.

Brinker is a cautionary tale about the importance of careful, clear, and explicit drafting and misplaced reliance on “savings” clauses. The lesson applies not only to companies with mandatory arbitration agreements, but any company that maintains employee handbooks or other various policies. A “savings clause” can shape the interpretation (and enforceability) of an arbitration agreement or other policies, but employers should not haphazardly or vaguely write them. The savings clause should adequately safeguard employees’ NLRB rights. Sometimes employers do not want to mention in their documents anything that might invite or inspire employees to consider organizing – for example, specific references to “Section 7” or “collective bargaining” rights or the “NLRB” or “unfair labor practices.” However, the Brinker decision reminds employers that if their language remains too vague, then they might invite scrutiny from the NLRB.

*Scott H. DeHart, a member of the firm’s Columbus office, regularly advises clients on labor and employment matters, including issues relating to arbitration agreements and employee handbooks. If you have questions about the NLRB’s Brinker decision or other employment related issues, please contact Scott at shd@zrlaw.com or (614) 224-4411.

In it for the Long Haul: Long COVID and Reasonable Accommodations

By Marcus A. Pringle*

The COVID-19 pandemic continues to present employers with a multitude of practical and legal issues impacting their workforces. One such issue revolves around employees suffering from long-term effects of COVID-19, i.e., Post-Acute COVID-19 Syndrome or “long COVID,” and whether an employer must provide these employees with reasonable accommodations under the Americans with Disabilities Act (“ADA”).

Under the ADA, a covered “disability” includes a physical or mental impairment that substantially limits a major life activity. Employers cannot discriminate against individuals with disabilities and have a duty to reasonably accommodate employees/applicants with disabilities, unless doing so creates an undue hardship. A reasonable accommodation is a change or adjustment to a job or work environment that permits a person with a disability to perform their job. For example, reasonable accommodations can include a modified work schedule or leave, reassignment, or providing/modifying equipment to aid the employee.

According to the Centers for Disease Control and Prevention, individuals suffering from long COVID experience “a wide range of new, returning, or ongoing health problems . . . four or more weeks after first being infected,” including, but not limited to: difficulty breathing or shortness of breath; tiredness or fatigue; worsening symptoms after physical or mental activities; difficulty thinking or concentrating; chest or stomach pain; headaches; and dizziness. Furthermore, COVID-19 can cause long-term damage to organs including the heart, lungs, and brain.

In July, the Department of Health and Human Services (“HHS”) and the Department of Justice (“DOJ”) jointly issued guidance (available here) addressing long COVID as a disability under the ADA and related statutes. The guidance does not address Title I of the ADA, which covers private employers, and states that “employment is outside of the scope of this guidance document.” However, the guidance still provides information on how government agencies and courts may apply the ADA with respect to employees suffering from long COVID.

In the joint guidance, HHS and the DOJ state that long COVID can meet the definition of a disability under the ADA. In making this determination, an individualized assessment is necessary, i.e., whether a particular person’s symptoms substantially limit a major life activity. The guidance provides the following as examples:

  • “A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.”
  • “A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.”
  • “A person with long COVID who experiences memory lapses and ‘brain fog’ is substantially limited in brain function, concentrating, and/or thinking.”

The guidance also advises that individuals suffering from long COVID may be entitled to reasonable accommodations. While it does not address employment-related accommodations, the guidance provides examples in other contexts, including allowing a student additional time to take a test on account of difficulties with concentrating and allowing a service animal to accompany an individual experiencing dizziness.

In light of the HHS/DOJ’s guidance, it is possible that the U.S. Equal Opportunity Commission and courts may take a similar approach with respect to the ADA and long COVID. As such, employers should consider whether long COVID may trigger the ADA’s (and similar state laws’) protections and requirements, including providing employees with reasonable accommodations. As the ADA requires an individualized approach, employers should contact counsel with questions regarding whether an employee with symptoms of long COVID may qualify as disabled and the types of accommodations that they may have to provide.

*Marcus A. Pringle practices in all areas of labor and employment law. For more information about the HHS/DOJ’s long COVID guidance or questions about the ADA and reasonable accommodations in general, please contact Marcus at map@zrlaw.com or (216) 696-4441.

EEOC Releases New Resources on the Workplace Rights of LGBTQ+ Employees

By Jantzen D. Mace*

In June, to honor Pride Month and the anniversary of the U.S. Supreme Court’s ruling in Bostock v. Clayton County, the EEOC released new resources to educate employees, applicants, and employers about the rights of all employees to remain free from sexual orientation and gender identity discrimination in employment. The EEOC released the new resources online which include a new landing page and a new technical assistance document titled: “Protections Against Employment Discrimination Based on Sexual Orientation and Gender Identity.” The EEOC confirmed that these resources rely on previously voted positions adopted by the Commission and do not represent a change in EEOC policy.

The EEOC’s new landing page consolidates information and resources regarding the scope of protections against sexual orientation and gender identity discrimination in the workplace. The page also contains information about harassment, retaliation, and how to file a charge of discrimination with the EEOC. Additional resources include links to EEOC statistics and updated fact sheets about recent EEOC litigation and federal sector decisions regarding sexual orientation and gender identity discrimination.

The technical assistance document, accessible through the new landing page, contains a series of questions and answers which should help the public understand the Bostock decision and the EEOC’s positions on the laws that the agency enforces. The Q&As address issues concerning Title VII coverage of employers, employees, and types of discriminatory actions that may fall under the statute’s protections, as well as issues more closely related to discrimination based on sexual orientation and gender identity.

Employers should take note of the following points raised by the Q&As:
̶ Workplace Attire. Covered employers may not require a transgender employee to dress in accordance with the employee’s sex assigned at birth. Prohibiting an employee from dressing or presenting themselves consistent with that person’s gender identity constitutes sex discrimination.

̶ Bathrooms, Locker Rooms, and Showers. Employers may have separate, sex-segregated bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. Where an employer has separate bathrooms, locker rooms, or showers for men and women, employers should allow transgender individuals to use the facilities of the gender with which they identify.

̶ Pronouns and Names. The use of pronouns or names that are inconsistent with an individual’s gender identity may amount to harassment, which includes unwelcome conduct that is based on gender identity. To be unlawful, the conduct must be “severe or pervasive” when considered along with all other unwelcome conduct based on the individual’s sex (which includes gender identity), such that the conduct creates a work environment that a reasonable person would consider intimidating, hostile, or offensive. Though accidental misuse of a transgender employee’s preferred name or pronouns does not violate Title VII, intentional and repeated use of that individual’s wrong name or pronouns could contribute to an unlawful hostile work environment.
The new landing page and technical assistance document are part of the EEOC’s effort to ensure that the public can find accessible, plain language materials in a convenient location on the EEOC’s website. “All people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination,” EEOC Chair Charlotte A. Burrows said. “The new information will make it easier for people to understand their rights and responsibilities related to discrimination based on sexual orientation and gender identity.” They also provide a good resource for employers hoping to address these topics.

The new landing page can be accessed at the following link: https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination.

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

Safer Federal Workforce Task Force Issues COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors

*By Scott Coghlan

On September 9, 2021, the Biden Administration announced a six-point COVID-19 Action Plan to combat the coronavirus. The Action Plan directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) applicable to private employers with 100+ employees that will mandate full vaccinated status or weekly negative COVID-19 tests for such employees. OSHA has not issued the ETS and the Action Plan did not set a deadline for the issuance of the ETS.

On that same date, President Biden issued an Executive Order directing the White House’s Safer Federal Workforce Task Force (Task Force) to issue new guidance (Guidance) regarding vaccination requirements and other COVID-19 safety measures for federal contractors and subcontractors. On September 24, 2021, the Task Force published its COVID-19 safety protocols. The Guidance imposes three primary requirements on federal contractors and subcontractors:
  1. Employees of covered contractors must be fully vaccinated, except for those that are legally entitled to an accommodation;
  2. Covered contractor workplaces must require masks and physical distancing for all employees, visitors and others; and,
  3. Covered contractors must designate a person to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

Which Federal Contracts Are Subject to the Guidance?

The following delineates the contracts or contract-like instruments entered into with the Federal Government subject to the Guidance:
  • For services, construction or a leasehold interest in real property;
  • For services covered by the Service Contract Act;
  • For concessions, including any concessions contract excluded by Department of Labor regulations; or
  • Entered into with the Federal Government in connection with Federal property or land and related to offering services for Federal employees, their dependents or the general public.
The Guidance does not apply to grants, contracts under the Indian Self-Determination and Education Assistance Act, under certain values set forth in the Federal Acquisition Regulation or subcontracts that relate solely to for the provision of products. Notably, the Guidance also does not apply to covered contractor employees who only perform work outside of the United States.

The Executive Order requires that contracts contain a clause that specifies that the contractor or subcontractor shall comply with all guidance for contractor and subcontractor work locations published by the Task Force. The prime contractor must include this clause in contracts with first-tier subcontractors and subcontractors must ensure that the clause exists with lower tier subcontracts.

When Do the Guidance Requirements Go Into Effect?

For contracts awarded before October 15, 2021, the requirements must become part of the contract when an option is exercised or an extension is made. Between October 15 and November 14, 2021, federal agencies must include the requirements in the solicitation documents. From November 14, 2021 forward, the requirements must be made part of any new contract.

Important Definitions

The Guidance has many defined terms, but those of primary importance are:
  • A covered contractor – means “a prime contractor or subcontractor at any tier who is a party to a covered contract.”
  • A covered contractor employee – means “any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace” and “includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” The phrase “in connection with” refers to employees who perform tasks necessary to perform the contract but are not directly engaged in performing the actual work such as human resources and billing personnel.
  • A covered contractor workplace – means “a location controlled by a covered contractor at which any employee of a covered contractor is working on or in connection with a covered contract is likely to be present during the performance for a covered contract” but “does not include a covered contractor employee’s residence.”

The Primary Requirements Imposed on Federal Contractors and Subcontractors

Vaccination

The Guidance requires fully vaccinated covered contractor employees by December 8, 2021 unless they are legally entitled to an accommodation due to a medical condition or sincerely held religious belief, practice or observance. After that date, all such employees must be fully vaccinated by the first day of the performance of a newly awarded covered contract. This includes employees that have already had COVID-19 and employees working remotely from home. The Guidance also provides for an “urgent, mission-critical” exception if a federal agency requires covered contractor employees to commence work before becoming fully vaccinated. In that case, the covered contractor must ensure that the employees are fully vaccinated within 60 days of their beginning work on the contract.

Covered contractors are not required to provide vaccines to their employees nor are they required to pay employees for their time and expense for getting vaccinated (Note: This differs from the forthcoming OSHA ETS which will require employers to provide employees with paid leave to get vaccinated and to recover from vaccine side effects). However, covered contractors must verify each employee’s vaccination status by having the employee show or provide one of the following documents (a digital copy such as PDF, digital photograph or scanned image is acceptable):
  • A copy of the immunization record from a health care provider or pharmacy
  • A copy of the COVID-19 Vaccination Record Card
  • A copy of medical records documenting the vaccination
  • A copy of immunization records from a public health or State immunization information system or
  • A copy of any other official documentation verifying vaccination that states the vaccine name, date(s) of administration of the vaccine and the name of the health care professional or clinic site that administered the vaccine

Mask and Social Distancing Requirements

Covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at covered contractor workplaces. In areas of high or substantial community transmission, even fully vaccinated persons must mask indoors. In areas of low or moderate community transmission, fully vaccinated persons do not need to mask indoors. Regardless of transmission levels, fully vaccinated persons do not have to physically distance.

Consistent with CDC guidelines, covered contractors may provide exceptions to masking and/or physically distancing if an individual is alone in an enclosed office or while eating or drinking, if physical distancing is maintained. Similarly, if a workplace risk assessment determines that wearing a mask would create a safety risk, an exception to masking is permitted. Exceptions must be approved in writing by the person designated by the contractor to ensure compliance with the Guidance.

Covered contractors are required to check the CDC COVID-19 Data Tracker County View website at least weekly to determine the level of community transmission in all areas where they have a covered contractor workplace in order to determine the appropriate safety protocols. When the community transmission level rises from low or moderate to substantial or high, the contractor is instructed to put it place more protective safety protocols consistent with CDC guidelines. However, when the community transmission level is reduced from high or substantial to moderate or low, the level must remain at the lower level for at least two weeks before a contractor may implement safety protocols recommended for the lower community transmission rate.

Designation of a Person to Coordinate COVID-19 Safety Efforts

Covered contractors must designate one or more persons to ensure compliance with the Guidance and its workplace safety protocols. The designated persons must provide information on required COVID-19 safety protocols to covered contractor employees and all other individuals at a covered contractor workplace. Communication of these safety protocols may occur by email, websites, signage or other means in a readily understandable manner.

What About Work From Home Employees?

Individuals authorized to work from home under the covered contract must comply with the vaccination mandate. This is true even if the employee never works at a covered contractor workplace or Federal workplace during the performance of the contract. However, residences are not considered covered contractor workplaces so work from home employees do not have to comply with masking and physical distancing while in their residence.

Will Federal Contractors Have to Comply with OSHA’s Forthcoming ETS?

Yes. Covered contractors will need to comply with other workplace safety standards, including OSHA’s forthcoming ETS for employers with 100 or more employees.

What Should Employers Do Now?

Employers should consider taking the following steps now in order to follow the new Guidance:
  • Review existing contracts or current bids for solicitation to see if the Guidance applies to your contract, workplace and employees
  • Designate a company representative to implement the Guidance
  • Create a plan to obtain employee vaccination verification
  • Develop a protocol to ensure weekly review of the CDC COVID-19 Data Tracker County View and the manner in which updated transmission levels and safety protocols will be communicated to employees, visitors, vendors or others that are likely to be present at a covered employer workplace
  • Determine how medical and religious based vaccination and mask requirements accommodation requests will be processed and what accommodations are available
  • Ensure that you are prepared to amend existing contracts with lower tier subcontractors to include the mandatory clause requiring compliance with all guidance published by the Task Force

*Scott Coghlan chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation and OSHA related matters. If you have a question about the Ohio BWC’s or OSHA’s response to COVID-19 or any other workers’ compensation or OSHA related questions, please contact Scott at sc@zrlaw.com or (216) 696-4441.

Z&R Shorts

Please join Z&R in welcoming Sarah Moore and Marcus Pringle to its Employment and Labor Groups


Sarah Moore has served both public and private sectors for over 25 years regarding labor and employment matters. Sarah has utilized traditional, modified, and IBB bargaining models in negotiations with unions that include AAUP, AFSCME, Cleveland Building Trades, CWA, IAFF, IBEW, FOP, NCF&O, OAPSE, OEA/NEA, OFT/AFT, OPBA, Laborers, SEIU, Steelworkers, Teamsters, and UAW. She regularly supports management with contract administration and handles arbitrations and factfinding proceedings. Sarah also litigates labor issues before state and federal courts (including injunctions and mandamus actions) and administrative agencies (ULPs and representation matters). Sarah advocates on employment matters in state and federal courts, including issues of benefits and pay, discrimination, harassment, restrictive covenants, as well as constitutional and contract-based claims. She has also litigated workers’ compensation appeals, negligence, and special education cases.

Marcus Pringle's practice encompasses all areas of employment and labor law. Marcus has experience defending against charges of discrimination and retaliation, sexual harassment, unfair labor practices, and workers’ compensation matters. Marcus earned his law degree from Cleveland-Marshall College of Law, where he was the Director of Operations for the Entertainment and Sports Law Association, Executive Assistant for the Great Lakes Sports and Entertainment Law Academy, and member of the Trial Advocacy Team. Marcus earned his B.S. in Broadcast Journalism from the Pennsylvania State University and is a graduate of Hudson High School.

Upcoming Speaking Engagements


October 14, 2021
Stephen Zashin presents “Trade Secret Boom: Key Trends in Non-Compete and Trade Secret Cases” with Justin Flamm at the Ohio State Bar Association’s 58th Annual Midwest Labor and Employment Law Seminar in Columbus, Ohio. Information regarding day one of the OSBA’s Midwest Seminar can be found here.

October 15, 2021
Sarah Moore presents “Technology Changing the Labor Law Practice: Negotiations, Mediations and Arbitrations” with Paul Unger, Daniel Zeiser, and R. Jessup Gage at the Ohio State Bar Association’s 58th Annual Midwest Labor and Employment Law Seminar in Columbus, Ohio. Information regarding day two of the OSBA’s Midwest Seminar can be found here.
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Tuesday, June 16, 2020

Breaking News from the U.S. Supreme Court: Title VII Prohibits Discrimination Based on Sexual Orientation and Transgender Status

By David R. Vance*

On June 15, 2020, in a landmark decision, the U.S. Supreme Court held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The decision in Bostock v. Clayton County, Georgia, one of three consolidated cases before the Supreme Court, resolves a circuit split over the scope of Title VII’s protections for homosexual and transgender persons.

Title VII makes it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In Bostock, the Supreme Court ruled that an employer violates Title VII if it intentionally fires an employee based, in part, on sex, which includes an employee’s sexual orientation and gender identity.

In reaching this conclusion, the Supreme Court reasoned that discrimination on the basis of an individual’s sexuality or gender identity necessarily “requires an employer to intentionally treat individual employees differently because of their sex.” The Supreme Court further stated that an "individual’s homosexuality or transgender status is not relevant to employment decisions … because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

In light of the Supreme Court’s decision, employers should:
  • Review and, if necessary, update their policies to specifically prohibit discrimination and harassment based on sexual orientation and gender identity; and
  • Train employees, particularly those in management and human resources, that Title VII prohibits discrimination based on sexual orientation and gender identity.
It is imperative that employers address the Supreme Court’s decision quickly and thoroughly.

*David R. Vance, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on labor and employment matters, including equal employment opportunity policies, employer handbooks, and employment decisions. If you have questions about the Supreme Court’s recent decision, please contact David at drv@zrlaw.com or (216)696-4441.
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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, July 14, 2015

EMPLOYMENT LAW QUARTERLY | Volume XVII, Issue ii

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Religious Accommodations and Bargaining – Why Collective Bargaining Agreements May Trump Accommodations

By George S. Crisci*

A Federal Court recently affirmed an employer’s decision to discharge a janitor who claimed the employer discriminated against him on the basis of his religious belief. Bolden v. Caravan Facilities Mgmt., LLC, No. 1:14-CV-26-RLM, 2015 U.S. LEXIS 73619 (N.D. Ind. June 8, 2015). The employer, pursuant to a neutral, rotating schedule, assigned the plaintiff-employee janitor to work on six Sundays over a ten-week span. The employer had negotiated the schedule as part of the collective bargaining agreement (“CBA”) it entered into with the employee’s union. However, the employee, an ordained Baptist minister, did not work any of the scheduled shifts. He called off, did not appear, or traded shifts with another employee in order to observe the Sabbath. After the employer terminated his employment based on unsatisfactory performance, the employee sued, claiming the employer violated Title VII of the Civil Rights Act of 1964 (“Title VII”).

The Court found the employer did not violate Title VII by failing to accommodate the employee’s religious belief. Reasonable accommodations eliminate conflicts between religious practices and employment requirements. According to the Court, the employer provided a reasonable accommodation through two mechanisms. First, the employer utilized a neutral, rotating shift schedule that spread weekend work among the employees. Second, the employer permitted employees to trade shifts. The opportunity to trade shifts eliminated any conflict the neutral schedule created with an employee’s request for days off.

The Court also reasoned that any additional accommodation would impose an undue hardship on the employer. Employers do not have to incur more than a de minimis cost, in lost efficiency or higher wages, to accommodate an employee’s religious practice. Here, the Court considered the following accommodations: 1) making an exception to the neutral, rotating schedule by never scheduling the employee on Sunday; or 2) moving the employee to third shift. According to the Court, these options imposed more than a de minimis cost. If the employer did not change the employee’s schedule, the employer had to a) pay someone overtime to cover the shift (placing the burden on co-workers), b) work with one less employee (loss of productivity), or c) hire another employee (additional expense).

The CBA’s neutral, rotating schedule and seniority system played a significant role in the Court’s decision. Under the CBA, seniority determined shift selection. The employee worked second shift because he was one of the least-senior union members. Therefore, if the employer moved him to a different shift, it would violate the CBA and deny other employees their contractual rights. The employer had consulted with the union, but the union was unwilling to make an exception to the neutral, rotating schedule it negotiated.

Employers subject to CBAs should consider this decision when presented with requests for accommodations based on religious belief, particularly when those requests violate the CBA.

* George S. Crisci, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. If you have questions about the impact of religious accommodations on your workplace, please contact George (gsc@zrlaw.com) at 216.696.4441.



EEOC: Transgendered Employees Can Use the Restroom of Their Choice

By Andrew J. Cleves*

On April 1, 2015, the Equal Employment Opportunity Commission (“EEOC”) ruled that a federal agency discriminated against a transgendered employee when it prohibited the employee from using the common women’s restroom. Lusardi v. McHugh, Dep’t of Army, Appeal No. 0120133395, (EEOC Apr. 1, 2015). The employee presented as female and had not undergone medical procedures to transition from male to female. According to the EEOC, when the employer required the employee to use a single-user restroom, the employer committed sex discrimination in violation Title VII of the Civil Rights Act of 1964 (“Title VII”).

In its decision, the EEOC adopted a standard for determining the sex of transgendered individuals – how the employee identifies himself/herself. Specifically, the EEOC concluded “there is no cause to question that Complainant – who was assigned the sex of male at birth but identifies as female – is female.” Here, after the employee began transitioning her gender presentation, she reached a mutual agreement with her employer regarding bathroom use: she would use a single-user restroom instead of the women’s restroom until she had undergone surgery. The employer advocated this approach based on anticipated discomfort from other female employees. Subsequently, the employee used the women’s restroom when her designated restroom was out-of-order. A supervisor confronted the employee about this use, claiming the employee must prove she had undergone “the final surgery” before she could use the women’s restroom.

The EEOC concluded that the employer’s act of prohibiting the employee from using the women’s restroom constituted direct evidence of discrimination. Here, the employer admitted the employee’s transgendered status was the motivating factor for its decision to prohibit the employee from using the women’s restroom.

The EEOC also determined that restricting the employee from using the women’s restroom was an adverse employment action. According to the EEOC, “equal access to restrooms” constitutes a significant, basic condition of employment. Therefore, where a transgendered individual has begun living and working as a woman (or man), the employer must allow the employee access to the women’s (or men’s) restroom.

Finally, the EEOC rejected the employer’s arguments of 1) anticipated discomfort of female employees and 2) the employee-employer transition agreement. “Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity.” The EEOC concluded an employer may not condition access to terms, conditions, or privileges of employment on completing certain medical procedures that the employer feels conclusively proves the individual’s gender identity. Even though the employee originally agreed to use the single-user restroom, employees cannot prospectively waive their Title VII rights.

This EEOC decision is not an anomaly or new trend. Rather, the EEOC has begun pursuing these types of sex discrimination cases with increasing frequency. In its most-recent Strategic Enforcement Plan, the EEOC identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as a top enforcement priority. Additionally, as Zashin & Rich previously reported, the EEOC filed two sex-stereotyping, gender-discrimination lawsuits in September 2014. In these cases, the EEOC alleged the employer discriminated against the transgendered employee because the employee failed to conform to the employer’s “sex or gender-based preferences, expectations, or stereotypes.” On April 21, 2015, one court concluded the EEOC sufficiently stated a claim under Title VII and allowed the case to proceed. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 14-13710, 2015 U.S. LEXIS 52016 (E.D. Mich. Apr. 21, 2015) In addition, the U.S. Court of Appeals for the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, previously held that a transgendered individual presented a valid Title VII discrimination claim. Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). On June 1, 2015, as Zashin & Rich recently highlighted, the Occupational Safety and Health Administration released a new best practice guide concerning transgendered workers’ use of workplace restrooms.

Given the EEOC’s increased emphasis on transgendered employees, employers must be cognizant of the protections Title VII and related state laws afford transgendered employees. In particular, employers should consider this EEOC decision when presented with employees transitioning their gender identity and employers should update their company handbooks and policies accordingly.

* Andrew J. Cleves, practices in all areas of labor and employment law. If you have questions about the impact of transgendered issues on your workplace, please contact Andrew (ajc@zrlaw.com) at 216.696.4441.


Employee Performance Reviews Have Their Day in Court: How Employers Can Get the Most out of Employee Performance Reviews

By Sarah K. Ott*

Recently, the trial between Ellen Pao and her former employer, venture capital firm Kleiner Perkins Caufield & Byers (“Kleiner Perkins”), captivated the business and technology world. Pao, formerly a junior partner at the firm, sued Kleiner Perkins for gender discrimination and retaliation, seeking $16 million in damages. Pao argued that the firm’s culture prevented women from advancing into the more lucrative senior partner positions and that the firm retaliated against her after she filed the lawsuit, eventually terminating her employment. Kleiner Perkins asserted that Pao’s poor performance and inability to get along with colleagues prevented her from receiving a promotion and led to her discharge. On March 26, 2015, a California jury found for Kleiner Perkins on all counts. Since then, Kleiner Perkins has sought to recover close to $1 million in expenses incurred during trial from Pao, and a judge has tentatively ruled that Pao must reimburse Kleiner Perkins for about $250,000 in expenses. Pao recently filed a notice of appeal.

The lawsuit captured headlines in major newspapers and blogs because it pulled back a curtain on the inner workings of one of Silicon Valley’s most respected venture capital firms (known for funding Google and Amazon in their start-up days). From an employment law perspective, the trial highlighted some of the benefits and pitfalls of employee performance reviews. Both sides used Pao’s performance reviews as evidence, with Pao’s attorneys claiming they showed Kleiner Perkins’ bias against Pao, and the defense relying on them as records of her sub-par performance. In particular, Pao’s attorneys’ use of the performance reviews highlights the potential for reviews to backfire against the employer if not done well. Pao’s attorneys pointed to the reviews as evidence of retaliation, since she received poor performance reviews in the year after she filed her lawsuit (despite receiving far more positive reviews the year prior). They also used the performance reviews as evidence of discrimination, noting that Pao received conflicting feedback (advising her to be both more and less aggressive) and that her male peers who received similar comments were later promoted.

The trial serves as a reminder to employers on how to best use employee performance reviews to encourage better work from employees – and how to avoid potential legal pitfalls. Performance reviews can help employers by motivating employees to improve in certain aspects of their jobs or continue good work in other areas. They also create a written record showing that the employer counseled an employee on poor performance and track improvements (or lack thereof).

Abiding by the following tips will help employers more effectively use employee performance reviews:

  • Common standards: create and adhere to the same standards so that every employee with the same job or role is evaluated based on the same criteria;
  • Set goals: doing so sets a benchmark for the employer to evaluate that employee’s performance;
  • Be specific: specificity helps employees understand the employer’s expectations and helps to prevent miscommunication;
  • Use deadlines: informing employees of when they are expected to reach a goal creates a record of the employer treating the employee fairly; and
  • Avoid personality critiques: rather than general criticism of an employee’s personality traits, employers should focus on specific instances when that trait created a problem.

Finally, to the extent that the employer can identify objective criteria, the review will be all the better.

* Sarah K. Ott practices in all areas of labor and employment law. For more information about conducting employee evaluations or other questions related to performance reviews, please contact Sarah (sko@zrlaw.com) at (216) 696-4441.


Courts Have Little Sympathy for Employer Mistakes in Complying with the Fair Credit Reporting Act

By Drew C. Piersall*

The Fair Credit Reporting Act (“FCRA”) regulates the collection and use of consumer information, including employee background and credit checks, and requires employers that rely on third-party companies to conduct background checks to follow certain procedures in notifying the individual being checked. The requirements include the following:

  • The employer must notify the individual that the information obtained in the background report may be used in the employer’s decision-making. The notice must be in a “stand-alone” format and may only have minimal additional information accompanying it.
  • The employer must obtain the individual’s written permission to perform the background check. The permission form may be part of the notification document.
  • For permission to obtain background reports throughout the individual’s employment, the employer must clearly state that intention on the permission form.
  • In order to obtain an investigative report, including information on the employee or applicant’s lifestyle, personality, and reputation, the employer must inform the individual of his or her right to a description of the investigation and its scope.

The FCRA requires additional action from employers who take an adverse action based on the information learned from a background check conducted by a third-party company, such as deciding not to hire an applicant, revoking a job offer, or termination. Before taking the adverse action, the employer must provide the individual with a copy of the report and a document summarizing the individual’s rights under the FCRA and give the individual a meaningful opportunity to respond to the information.

Absent an adequate response and assuming the employer takes the adverse action, the employer must: (1) notify the individual of the adverse action; (2) provide the individual with specific credit score information from the report; (3) inform the individual of his or her right to obtain a free copy of the report within 60 days and dispute the information in the report; and (4) provide the contact information of the third-party company that compiled the report for the employer and explain that the third-party company did not make the decision to take the adverse action and cannot explain the reasons for the action. Employers also must destroy any background reports in a secure manner, such as by shredding them or permanently deleting electronic copies.

Despite the many requirements placed on employers by the FCRA, a spate of recent cases show that courts have little sympathy for employers who commit minor technical violations of the law, even when complying with the spirit of the law’s requirements. For example, a federal court in Virginia recently denied summary judgment to an employer who allegedly violated the FCRA when it failed to provide “stand alone” notice that it would be conducting a background check by including a liability waiver on the same document. Milbourne v. JRK Residential America, LLC, No. 3:12cv861, 2015 U.S. Dist. LEXIS 29905 (E.D. Va., Mar. 15, 2015). Other cases involve employers rescinding job offers based on information discovered through a background report before providing the job applicants with a meaningful opportunity to respond to the information. In one case, the employer revoked a job offer to an applicant based on erroneous information in a background report without giving the applicant a chance to challenge the report. Jones v. Halstead Management Co., LLC, No. 14-CV-3125, 2015 U.S. Dist. LEXIS 12807 (S.D.N.Y., Jan. 27, 2015). In another case, the employer rescinded a job offer after its receipt of an unfavorable criminal background report on an applicant without giving the applicant time to correct the inaccurate information with the consumer reporting agency before filling the position. Miller v. Johnson & Johnson, No. 6:13-cv-1016, 2015 U.S. Dist. LEXIS 4448 (M.D. Fla., Jan. 14, 2015).

In a more employer-friendly decision, a federal court in Massachusetts recently granted summary judgment for an employer despite the plaintiffs’ argument that the employer’s notice and request for authorization to conduct a background check did not limit itself “solely” to the disclosure because it included a short preamble regarding customer safety. Goldberg v. Uber Techs., Inc., No. 14-14264-RGS, 2015 U.S. Dist. LEXIS 44675 (D. Mass., Apr. 6, 2015). The court held the employer did not violate the FCRA by including “a few sensible words” about why the company chose to use background checks (i.e., customer safety). The court also found that the employer did not violate the FCRA by failing to notify the job applicant that it intended to make an adverse decision based on information included in the background report. The court found that the statute does not require advanced notice that the employer intends to take an adverse action – it merely requires providing the individual with the background report and a document stating the individual’s rights under the FCRA.

With FCRA cases seemingly on the rise, employers who use third-party companies to compile background information should review their background check policies and procedures. Failure to strictly comply with FCRA requirements can lead to costly litigation, including class action lawsuits brought on behalf of employees and applicants subject to the employer’s non-compliant background check policies and procedures.

* Drew C. Piersall works in the firm’s Columbus office and practices in all areas of labor and employment law. If you have questions about conducting background and credit checks or the FCRA in general, please contact Drew (dcp@zrlaw.com) at 614.224.4411.


Z&R SHORTS


Congratulations!

Drew C. Piersall was selected to serve as the Chair of the Columbus Bar Association’s Labor & Employment Law Committee for 2015-2016. The Labor & Employment Law Committee meets on a monthly basis in the fall, winter and spring. In an effort to better serve clients and the legal profession, the Committee shares ideas and provides information on topics of concern to all who participate in the field of labor and employment law.

Jonathan Downes was inducted as a Fellow into the College of Labor and Employment Lawyers. The College of Labor and Employment Lawyers is an intellectual and practical resource for the support of the legal profession and its many audiences. The primary purpose of the College is recognition of individuals, sharing knowledge, and delivering value to the many different groups who can benefit from its value model.

Seminars

Thursday, July 16, 2015 at 10:30 am
Patrick M. Watts presents "2015 Legal Update" at 10:30 a.m. at the Lake/Geauga Area Chapter of the Society for Human Resource Management luncheon.

Tuesday, September 22, 2015 at 1:00 pm
Jonathan Downes presents "Risk Management for Supervisors" for the Ohio Association of Chiefs of Police beginning at 1 p.m. at the Crowne Plaza Columbus North.
Crowne Plaza Columbus North | 6500 Doubletree Avenue, Columbus, OH

Thursday, September 24, 2015 at 10:00 am
Jonathan Downes and Drew C. Piersall present "Negotiations – Post Recession and Impact of The Affordable Care Act" for the Ohio GFOA – Annual Conference & Membership Meeting to be held at the Hilton Netherland Plaza in Cincinnati.
Hilton Netherland Plaza | 35 West Fifth Street, Cincinnati, OH

Friday, November 6, 2015 at 10:15 am
Patrick J. Hoban presents “Affordable Care Act” at 10:15 a.m. at the Ohio Conference for Payroll Professionals (OCPP) to be held at the Embassy Suites Hotel in Dublin, Ohio.

Friday, November 6, 2015 at 10:15 am
Michele L. Jakubs presents “FLSA/Time and Attendance Best Practices” at 10:15 a.m. at the Ohio Conference for Payroll Professionals (OCPP) to be held at the Embassy Suites Hotel in Dublin, Ohio.
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Wednesday, June 3, 2015

The Jenner Effect: OSHA Releases New Best Practices on Restroom Access for Transgender Employees

By Scott Coghlan*

The United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) released a new best practices guide on June 1, 2015, concerning transgender workers’ use of workplace restrooms.

OSHA’s sanitation standard already requires that all covered employers provide employees with sanitary and available toilet facilities. Generally, OSHA prohibits employers from placing unreasonable restrictions on restroom use, such as restroom facilities that are an unreasonable distance from an employee’s worksite. While many employers provide separate restrooms for men and women, OSHA does not require it. With increasing frequency, employers that provide separate restrooms are facing the issue of which restroom transgender employees should use.

Transgender individuals are those who do not identify with the gender they were assigned at birth – for example, a transgender woman may have male listed as the gender on her birth certificate and have been raised as a boy, but internally identifies as a woman. Transgender individuals may “transition” to live life as the gender they identify with in a number of different ways, including through changes to appearance, name changes, medical procedures, and changes to official identification documents.

OSHA published its new best practices guide, titled “A Guide to Restroom Access for Transgender Workers,” at the request of the National Center for Transgender Equality. With the new guidelines, OSHA seeks to ensure that transgender individuals feel safe and comfortable when using workplace restrooms. OSHA suggests that employers allow employees to use the restroom for the gender with which they identify. Thus, a transgender man should be permitted to use the men’s restroom. OSHA also offered alternative suggestions, including providing a single-occupancy, gender-neutral restroom or multiple-occupant, gender-neutral restrooms with lockable single-occupant stalls. Additionally, OSHA cautions against segregating or singling out transgender employees by requiring those employees to use restrooms that do not conform with their gender identity or by requiring transgender employees to use only specific or gender-neutral restrooms when gender-specific restrooms are available. Finally, OSHA’s new guidelines state that employees should not be required to present medical or legal documentation of their gender identity in order to have access to restroom facilities for the gender with which they identify.

OSHA’s guidelines do not place any legal requirements on employers to follow them. However, employers should keep in mind that the Equal Employment Opportunity Commission (the “EEOC”) and other agencies have interpreted Title VII’s prohibition of gender discrimination to extend to discrimination based on gender identity and transgender status. Recently, the EEOC ruled that prohibiting a transgender person from accessing restrooms for his or her gender identity constituted direct evidence of discrimination, even though the transgender person had not undergone any medical procedure to “transition.” Additionally, several states already have laws in place concerning transgender individuals’ rights to access restrooms corresponding to their gender identity.

*Scott Coghlan practices in all areas of workplace safety law. For more information about OSHA’s new best practices guide and OSHA in general, please contact: Scott Coghlan | sc@zrlaw.com | 216.696.4441
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Thursday, November 20, 2014

EMPLOYMENT LAW QUARTERLY | Fall 2014, Volume XVI, Issue iii

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Tidal Wave: More Systemic Cases on the Horizon

By Stephen S. Zashin*

The Cleveland Field Office of the United States Equal Employment Opportunity Commission (“EEOC”) recently welcomed a new Director. Sworn in on October 6, 2014, Cheryl Mabry-Thomas now presides over the EEOC’s Cleveland Field Office, which is part of the Agency’s Philadelphia District. The Director’s responsibilities include management of the office’s staff and activities.

Ms. Mabry-Thomas has worked for the EEOC for nearly three decades, including many years investigating systemic claims. The EEOC investigates charges of discrimination on an individual and systemic basis. The EEOC defines systemic discrimination broadly as “a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.” Given Ms. Mabry-Thomas’ background and the EEOC’s recent activity, employers should expect to see more systemic charges coming out of the Cleveland Field Office.

In recent years, the EEOC has increased its systemic enforcement efforts. The EEOC can make a greater impact with systemic cases involving many employees, as compared to cases involving only a single employee. In 2005, the EEOC established a special task force regarding systemic discrimination. While the vast majority of the charges of discrimination the EEOC receives are for single individuals, the EEOC can turn a charge of discrimination by a single individual into a systemic investigation. As part of its systemic enforcement efforts, the EEOC has targeted recruitment and training programs that may have discriminating barriers of entry, age discrimination in reductions in force, and compliance with client or customer wishes that result in the discriminatory placement or hiring of employees.

The EEOC also targets company policies that are “uniformly applied” but do not accommodate an individual or that have a broad impact on a protected class of employees. For example, hiring or promotion policies that unintentionally, but routinely, exclude certain groups, such as through criminal background checks, are ripe for systemic investigation by the EEOC. Employers should review their company policies and revise any that may have this result when applied.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law and the head of the firm’s Labor and Employment Groups, has extensive experience counseling employers on class or collective actions, including systemic charges brought by the EEOC. For more information about the EEOC’s enforcement strategies or your labor and employment law needs, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.


What’s Next? EEOC Files Its First Ever Lawsuits Based on Transgendered Status

By Drew C. Piersall*

On September 25, 2014, the Equal Employment Opportunity Commission (“EEOC”) sued two employers alleging sex discrimination on the basis of transgendered status. According to the EEOC, each employer violated Title VII of the Civil Rights Act of 1964 by firing an employee because “[she] is transgendered, because of [her] transition from male to female, and/or because [she] did not conform to the . . . employer’s sex or gender-based preferences, expectations, or stereotypes.” These “gender stereotyping” lawsuits likely signify a shift in the EEOC’s enforcement efforts concerning an individual’s transgendered status.

In each case, the employer discharged the employee after the employee announced her transgendered status or began presenting as a woman. In one, the employer discharged the employee approximately four months after she began wearing feminine attire. See EEOC v. Lakeland Eye Clinic, P.A., No. 8:14-cv-02421 (M.D. Fla. filed Sept. 25, 2014). The EEOC alleged co-workers ignored the employee and made derogatory comments and that the employer confronted the employee about her changing appearance. The employer also allegedly told the employee it was eliminating her position but then hired a replacement approximately a month later. In the second case, the employee allegedly informed her employer via letter of her plans to undergo a gender transition. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 2:14-cv-13710 (S.D. Mich. filed Sept. 25, 2014). The EEOC alleged that less than one month later the employer’s owner stated the employee’s plan to undergo a gender transition was unacceptable and fired the employee. In both cases, the EEOC seeks injunctive and monetary relief.

These cases are not anomalies or outliers. Rather, in its most-recent Strategic Enforcement Plan, the EEOC identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as a top enforcement priority. In addition, the U.S. Court of Appeals for the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, previously held that a transgendered individual presented a valid Title VII discrimination claim. See Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). The U.S. Office of Special Counsel recently reached a similar conclusion. On August 28, 2014, the Office of Special Counsel found the Army discriminated against an employee based on gender identity following the employee’s announced transition from male to female. The Office of Special Counsel analogized the situation to Title VII claims.

Given the EEOC’s increased emphasis on protecting transgendered employees, employers must be cognizant of the protections Title VII and related state laws afford transgendered employees and should update their company handbooks and policies accordingly.

*Drew C. Piersall, a member of the firm’s Columbus office, practices in all areas of labor and employment law. If you have questions about the impact of transgendered issues on your workplace, please contact Drew (dcp@zrlaw.com) at 614.224.4411.


The FLSA’s Professional Exemption Requires a Degree

By Michele L. Jakubs*

The U.S. District Court for the Northern District of Ohio recently shot down a restaurant’s effort to classify several chefs as “learned professionals” under the Fair Labor Standards Act (“FLSA”). See Solis v. Suroc, Inc., 2014 U.S. Dist LEXIS 127929. The Department of Labor sued the owners of several Ohio restaurants for failing to pay minimum wage and overtime to certain chef employees. Generally, the FLSA requires employers to pay non-exempt employees minimum wage and, for hours worked in excess of 40 hours in a work week, overtime wages.

The restaurant claimed that the chefs, referred to as #2 and #3 chefs, fell within the FLSA’s exemptions for professionals and executives. Codified as 29 U.S.C. § 213, the FLSA provides several exemptions from its minimum wage and overtime wage requirements, including “any employee employed in a bona fide executive, administrative, or professional capacity.” The Code of Federal Regulations further defines the exemptions for professionals in 29 C.F.R. § 541.301 and for executive employees in 29 C.F.R. § 541.100.

To fall within the professional exemption, an employee must: (1) “perform work requiring advanced knowledge;” (2) the work must be in a field of science or learning; and (3) customarily, the employee must have acquired the advanced knowledge through a “prolonged course of specialized intellectual instruction.” The regulations specify that a degree is prima facie evidence that an employee has met the third requirement.

In applying these three factors, the court determined that the restaurant failed to prove that the #2 and #3 chefs fell within the professional exemption because their respective job descriptions did not require any degree or formal culinary education. Further, the court found that the chefs’ extensive on-the-job training was insufficient to meet the regulation’s requirement of a prolonged course of specialized intellectual instruction. The court noted that the restaurant offered no evidence supporting its argument that the chefs received instruction by using the restaurant as a school-type setting during off-hours.

The regulation specifies that the professional exemption does not apply to occupations in which most employees acquire their skill through experience rather than advanced, specialized intellectual instruction. The court refused to extend the exemption to positions requiring extensive work experience, but no degree, like with the #2 and #3 chefs. The court continued that for the professional exemption to apply, the employee must begin the job in possession of the advanced knowledge customarily acquired through a prolonged course in specialized instruction. Generally, training the employee after hire is insufficient.

The restaurant also argued that the #3 chefs fell within the executive employee exemption, as defined in 29 C.F.R. § 541.100. In order to fall within the executive employee exemption, an employee must: (1) be compensated on a salary basis of no less than $455 per week; (2) have the primary duty of managing the enterprise or a department or subdivision of the enterprise; (3) “customarily and regularly” direct the work of two or more employees; and (4) have the authority to hire and fire other employees, or make suggestions regarding hiring, firing, and promotion that “are given particular weight.” The court analyzed only the fourth requirement, finding that the #3 chefs did not meet the exemption as they had no authority to hire and fire other workers, and there was no evidence that the #3 chefs made suggestions or recommendations regarding hiring, firing, or promotion decisions.

As this case demonstrates, determining whether an employee meets the requirements for exemption from minimum wage and overtime under the FLSA is fact intensive. Improperly applying an exemption can prove costly for employers, and when in doubt, employers should contact counsel.

*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information on the FLSA’s wage and hour requirements or exemptions, please contact Michele (mlj@zrlaw.com) at 216.696.4441.


Will Supervisors Soon Be Off the Hook in Employment Discrimination Cases?

By Sarah K. Ott*

Recently, the Ohio Supreme Court issued a game-changing decision concerning whether supervisors can be held liable alongside employers in employment discrimination cases. The case, Hauser v. City of Dayton Police Dep’t., 140 Ohio St. 3d 266, 2014-Ohio-3636, involved a female police officer who claimed that the Dayton Police Department and her supervisor treated her unfavorably as compared to her male peers. The officer named both the Dayton Police Department and her direct supervisor as defendants. The court did not rule on the merits of Hauser’s discrimination claim; instead, it only addressed the narrow question of whether Ohio law expressly imposes liability on employees of political subdivisions in employment discrimination cases.

Ohio Revised Code § 2744.03 grants employees of political subdivisions (such as police departments and other government employers) immunity from tort liability, unless another section of the Ohio Revised Code expressly imposes liability. The court’s analysis focused on whether R.C. § 4112.02(A), which prohibits employer discrimination, expressly imposes liability. Ohio Revised Code § 4112.01(A)(2) defines “employer” as “the state, any political subdivision of the state, any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer” (emphasis added). The Ohio Supreme Court previously interpreted the bolded phrase to include employees as among those liable for employment discrimination (the seminal case being Genaro v. Cent. Transp., 84 Ohio St.3d 293, 703 N.E.2d 782 (1999)).

In Hauser, the Ohio Supreme Court found that Ohio law does not permit individual liability of a supervisor of a political subdivision in a discrimination case brought under R.C. § 4112.02(A). In reaching its decision, the court followed two lines of reasoning. First, it found that in the historical context in which the General Assembly drafted R.C. Chapter 4112, the theory of respondeat superior governed. Respondeat superior refers to the general rule that an employer is responsible for its employees’ acts performed in the course of the employees’ job; that is, an employer is vicariously liable for the acts of an employee. Under the same theory of vicarious liability, federal courts decline to hold individual employees liable under Title VII. As such, the court reasoned that it is contrary to the theory of respondeat superior to impose liability on an individual employee.

Second, the court reasoned that imposing liability on individual employees contradicts the general context and purpose of R.C. § 4112.02(A). The court noted that it makes little sense to hold supervisors liable when R.C. § 4112.02(A) exempts employers with fewer than four employees from discrimination liability. Furthermore, the court observed that the statute expressly provides for individual liability elsewhere. Ohio Revised Code § 4112.02(J) holds individuals liable for aiding and abetting the discriminatory practices of an employer, but this section is arguably superfluous if R.C. § 4112.02(A) requires individual liability. Ohio Revised Code § 4112.02(J) demonstrates that when the General Assembly intends to impose individual liability on employees, it does so expressly rather than by implication.

So what does this mean for employers today? It means that supervisors in political subdivisions are not personally liable in employment discrimination cases brought under R.C. § 4112.02(A). This decision also may be a harbinger of future rulings similarly finding that private sector employees are likewise immune from liability for employment discrimination. While the Hauser Court refused to overrule Genaro, its decision calls into question the holding in Genaro and suggests the Ohio Supreme Court may be willing to revisit whether supervisors of private employers are subject to employment discrimination liability under R.C. § 4112.02(A). Also, do not be surprised if savvy plaintiff’s attorneys start bringing more aiding and abetting claims under R.C. § 4112.02(J).

*Sarah K. Ott practices in all areas of labor and employment law. For more information about the Ohio Supreme Court’s decision in Hauser and its consequences, please contact Sarah (sko@zrlaw.com) at 216.696.4441.


Public Sector Alert: How To Conduct Yourself Under the Open Meetings Act

By Jonathan J. Downes*

The Second District Court of Appeals came down hard on an Ohio public body for violating Ohio’s Open Meetings Act. Maddox v. Greene Cty. Children Servs. Bd. of Dirs., 2014-Ohio-2312. Over the course of a year, the public body entered into executive session during numerous public meetings to discuss an employee’s job performance and employment status. After the public body discharged the employee, the employee challenged the discharge. The employee claimed the public body violated Ohio’s Open Meetings Act by holding private meetings to discuss the employee’s performance and job status. The court agreed with many of the former employee’s claims. The decision provides a great reminder as to how public bodies must conduct themselves and highlights the following important sections of Ohio’s Open Meetings Act:

1. When entering an executive session, public bodies must specifically cite the appropriate statutory exception for conducting a meeting outside the public’s purview.

When holding meetings, courts construe the Open Meetings Act liberally in favor of taking action and conducting deliberations in meetings open to the public. Public officials may convene private executive sessions to discuss sensitive information, but when doing so must follow certain procedures. Specifically, public officials only may conduct executive sessions for one of the reasons detailed in Ohio Revised Code Section 121.22(G) and must state the reason during the public meeting. The Maddox Board went into executive session to discuss the following: 1) an employee’s evaluation; 2) “upcoming negotiations;” and 3) “personnel matters” or “personnel issues.” In each instance, the Maddox Board failed to sufficiently specify the executive session’s purpose during the public meeting.

Public bodies may discuss an employee’s job performance in an executive session, but before doing so, must identify a R.C. § 121.22(G) purpose. In Maddox, the Board went into executive session to discuss the “Executive Director’s Evaluation.” The Open Meetings Act does not specifically include evaluating a public employee as an exception to the open meeting requirement. However, the court considered a previous decision where a public body discussed an employee’s job performance when considering that employee’s dismissal. Ohio Revised Code Section 121.22(G) authorizes executive sessions to consider the dismissal of public employees. Since the Open Meetings Act does not include an exception for evaluating public employees, a public body must link each executive session regarding an employee’s job performance to an exception enunciated in R.C. § 121.22(G).

In fact, public bodies should always reference a specific R.C. § 121.22(G) exception. At different points, the Maddox Board entered executive session to discuss “upcoming negotiations” and “personnel matters” or “personnel issues.” Relying on case law, the court concluded these non-specific references were not proper statutory purposes and did not satisfy R.C. § 121.22(G). Instead, the Maddox Court found that “the statute requires [the body] to be more specific by denoting the precise type of ‘personnel’ matters it would address, such as hiring, discipline, termination, etc.” Therefore, whenever a public body wishes to enter executive session, it should specifically reference a R.C. § 121.22(G) exception.

2. After concluding an executive session, public bodies must re-open the meeting to the public and move to adjourn the meeting prior to concluding business.

After an executive session ends, the public body must reopen the meeting to the public and make a motion and vote to adjourn the public meeting. The Maddox Board regularly ended the executive sessions without reopening the meeting to the public, which the court found violated the Open Meetings Act. Instead, the Maddox Board should have given those present a reasonable opportunity to re-enter the room after the executive session ended, before officially concluding business. Public bodies that enter an executive session should always re-convene the public meeting before adjourning that meeting.

3. When public bodies make decisions based on improper deliberations, they must hold subsequent deliberations sufficient to support the decision prior to taking formal action.

Ohio Revised Code Section 121.22(H) invalidates formal actions based on deliberations held in closed meetings that do not comply with one of the executive session exceptions detailed in R.C. § 121.22(G). The Maddox Board terminated an Executive Director after holding a proper executive session. However, the court concluded the Maddox Board based its termination decision on previous deliberations held during improper executive sessions. In response, the Maddox Board pointed to additional discussions held in the proper executive session. However, it was not enough “to point to some ‘new’ or ‘additional’ deliberations if the employment action” still resulted from improper deliberations. Therefore, the Maddox Board had to re-deliberate in either a public session or a properly held executive session. In particular, those subsequent discussions had to be sufficient “to support a finding that [the Board’s] discharge decision did not result from prior improper deliberations.” Any time a public body suspects previous deliberations or actions were improper, the public body should hold subsequent substantive deliberations prior to taking formal action.

These principles serve as an excellent reminder of how public bodies must conduct themselves in light of Ohio’s Open Meetings Act.

*Jonathan J. Downes, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience advising public entities and employers. For more information about the application of the Open Meetings Act to executive sessions, please contact Jonathan (jjd@zrlaw.com) at 614.224.4411.


Ohio’s Minimum Wage to Increase to $8.10

By David P. Frantz*

On January 1, 2015, pursuant to a 2006 Amendment to the Ohio Constitution, which provides for an annual minimum wage increase tied to the rate of inflation, Ohio’s minimum wage will increase fifteen cents for non-tipped employees to $8.10 per hour. The state minimum wage for tipped employees will increase seven cents to $4.05 per hour. The increase will apply to all Ohio employees, age sixteen and older, employed by businesses with annual gross receipts of more than $297,000.

Ohio employees of businesses with annual gross receipts below $297,000 and fourteen- and fifteen-year-old employees are only entitled to receive hourly wages equivalent to the federal minimum wage. The federal minimum wage currently stands at $7.25 per hour for non-tipped employees and $2.13 per hour for tipped employees and is not subject to an automatic annual increase.

*David P. Frantz practices in all areas of labor and employment law. For more information about minimum wage changes or your labor and employment law needs, please contact David (dpf@zrlaw.com) at 216.696.4441.


Z&R SHORTS


Best Lawyers®

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

  • George S. Crisci – Employment Law Management, Labor Law – Management, and Litigation – Labor and Employment
  • Jon M. Dileno – Employment Law – Management
  • Jonathan J. Downes – Employment Law – Management and Labor Law – Management
  • Stephen S. Zashin – Labor Law – Management

Zashin & Rich is pleased to announce the return of Jason Rossiter

Jason Rossiter has returned to Zashin & Rich after a short stint out on the west coast. Jason, who first began working at Zashin & Rich in 2007, has been practicing law for nearly 15 years. He has a wealth of experience drafting contracts, advising employers on compliance with workplace employment, privacy, and technology laws, and representing employers in employment-related litigation.


Zashin & Rich Proudly Launches New Website

After several months of development, we proudly launched on November 10, 2014. Many thanks to Unity Design for capturing our energy and corporate culture in our re-branding and website. zrlaw.com


Upcoming Speaking Engagements

Friday, December 19, 2014, at 1:45pm
Drew C. Piersall is presenting "Individual vs. Official Capacity and the Ex Parte Young Doctrine" at 1:45 p.m. for the Ohio Department of Public Safety's inaugural "Defending §1983 Actions Against Public Clients" at the Department's headquarters located in Columbus, Ohio.

Monday, February 2, 2015, beginning at 3:30pm
Jonathan J. Downes presents "Virtual Realities: Dealing with Arbitration, Arbitration Decisions, and Mid-Term Bargaining" at OHPERLA 31st Annual Training Conference beginning at 3:30 p.m. at the Roberts Centre in Wilmington, Ohio.

Tuesday, February 3, 2015, beginning at 10:30am
Drew C. Piersall presents "'Modern Family' Employment: Today's Discrimination Trends" at OHPERLA 31st Annual Training Conference beginning at 10:30 a.m. at the Roberts Centre in Wilmington, Ohio.

Thursday, February 12, 2015, at 2:00pm
Patrick J. Hoban presents "Affordable Care Act" at 2:00 p.m. for the American Payroll Association, Greater Cleveland Chapter at the Crown Plaza in Independence, Ohio.

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