By Patrick J. Hoban & David P. Frantz*
On June 27, 2016, a federal court in Texas issued a preliminary injunction barring the U.S. Department of Labor (“DOL”) from implementing its “persuader” rule (“Persuader Rule”), which dramatically expands the scope of the reporting requirements under the Labor-Management Reporting and Disclosure Act (“LMRDA”). This ruling comes as a relief to employers, labor relations consultants, and attorneys alike, as the Persuader Rule requirements would have gone into effect on July 1st absent an injunction. The injunction order follows on the heels of a Minnesota federal court’s decision not to enjoin the DOL from implementing the rule. A similar action also is pending before a federal court in Arkansas.
Under the LMRDA, employers and their labor relations consultants are required to report agreements to engage in activities to persuade employees regarding their rights to unionize and collectively bargain. Reports must include the nature of the services consultants provide and the costs of those services. These reporting requirements are subject to certain exemptions, including an exemption when the nature of the service is to provide the employer with “advice.”
Historically, the DOL interpreted the advice exemption to exclude from the reporting requirements an employer’s engagement of consultants, including attorneys, to assist in responding to a unionizing campaign, where: (1) the consultant or attorney had no direct contact with the employees; and (2) the employer retained discretion to reject the recommendations of the consultant or attorney. The DOL’s newly promulgated Persuader Rule turns this long-standing interpretation on its head by opening up activities to reporting even in the absence of direct contact with employees. This change created great uncertainty as to the types of previously-exempt activities, including attorney-client communications, that potentially could be subject to reporting under the new rule.
In ordering the preliminary injunction, the Texas federal court took issue with the Persuader Rule as it effectively obliterates the LMRDA’s advice exemption. The court noted, “despite a very lengthy Final Rule, [the DOL] never adequately explains why it is abandoning the prior, longstanding Advice Exemption now.” The court held, among other things, that the DOL’s rule likely violates employers’ First Amendment rights, is unconstitutionally vague, and would cause attorneys to violate their professional conduct obligations. Finally, the court held the injunction applies nationally, as the plaintiffs allege the Persuader Rule is facially invalid and the injury resulting from its enforcement will be national in scope.
The Persuader Rule became effective on April 25, 2016 and “will be applicable to arrangements and agreements as well as payments (including reimbursed expenses) made on or after July 1, 2016.” However, in the proceeding before the federal court in Arkansas, the DOL clarified that it would “not apply the Rule to arrangements or agreements entered into prior to July 1, 2016, or payments made pursuant to such arrangements or agreements.” Accordingly, employers who obtain indirect persuader services under an agreement or engagement entered into prior to July 1, 2016 should not be subject to the Persuader Rule’s expanded reporting requirements.
Thanks to the Texas federal court’s injunction order, the Persuader Rule’s implementation will be delayed beyond July 1st. While it is possible that the Persuader Rule ultimately will be ruled unenforceable, that outcome is far from certain. Accordingly, employers should consider entering into engagement agreements with consultants/attorneys prior to July 1, 2016 to avoid the Persuader Rule’s expanded reporting requirements.
*Patrick Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about the DOL’s persuader rule or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
*David Frantz practices in all areas of labor and employment law. For more information about the DOL’s persuader rule or labor & employment law, please contact David (dpf@zrlaw.com) at 216.696.4441.
Wednesday, June 29, 2016
Wednesday, May 18, 2016
Department of Labor Issues Final Rule on Overtime Exemptions
By Michele L. Jakubs*
On May 18, 2016, the United States Department of Labor (“DOL”) announced it will publish its final rule increasing the salary thresholds for exemptions under the Fair Labor Standards Act (“FLSA”). The final rule sets the new salary threshold for “white collar” exemptions at $47,476 annually. For the highly-compensated employee exemption, the new salary threshold is set at $134,004 annually. The final rule (including the new salary thresholds) goes into effect on December 1, 2016. The changes will have a major impact on employers, as an estimated 4.2 million formerly-exempt employees will become eligible for overtime.
The FLSA generally requires employers to pay employees for any time worked in excess of forty hours per work week at a rate of one-and-a-half times the employee’s regular rate. The FLSA exempts “white collar” and highly-compensated employees from the overtime requirement, provided the employees meet specific criteria.
Employees qualify for an exemption by meeting three criteria: (1) the employee receives a fixed salary; (2) the salary meets the minimum threshold requirement (currently $455 per week, or $23,660 per year); and, (3) the employee’s responsibilities primarily involve executive, administrative, or professional duties. Highly-compensated employees who regularly perform one or more exempt duties also are exempt.
Under the final rule, the salary threshold for an exemption is set at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region. When the rule goes into effect on December 1, 2016, the salary threshold will increase to $913 per week, or $47,476 per year, more than twice the current threshold. Employers may, for the first time, use non-discretionary bonuses and incentive payments to satisfy up 10% of the new salary threshold. For the highly-compensated employee exemption, the new salary threshold is set at the 90th percentile of full-time salaried workers nationally, and will increase from $100,000 to $134,004 on December 1, 2016. These salary thresholds will be updated automatically every three years to maintain salary levels at the referenced percentiles.
The final rule does not make any changes to the existing job duty requirements for the “white collar” and highly-compensated employee exemptions.
In light of the dramatic increases in the salary thresholds, employers should consult with counsel to develop a course of action to ensure compliance with both the salary and duties tests. This change in the law presents an opportunity for employers to review whether employees classified as exempt truly meet the duties test, and the new salary threshold, under the FLSA and make any necessary corrections. The implications of misclassifying employees are widespread and costly and may result in litigation or an investigation by the DOL. With just over six months to prepare and implement a plan, employers should begin the process as soon as possible.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law and is particularly adept at handling wage and hour issues. If you have questions about how the Department of Labor’s final rule may impact your company, please contact Michele (mlj@zrlaw.com) at 216.696.4441.
On May 18, 2016, the United States Department of Labor (“DOL”) announced it will publish its final rule increasing the salary thresholds for exemptions under the Fair Labor Standards Act (“FLSA”). The final rule sets the new salary threshold for “white collar” exemptions at $47,476 annually. For the highly-compensated employee exemption, the new salary threshold is set at $134,004 annually. The final rule (including the new salary thresholds) goes into effect on December 1, 2016. The changes will have a major impact on employers, as an estimated 4.2 million formerly-exempt employees will become eligible for overtime.
The FLSA generally requires employers to pay employees for any time worked in excess of forty hours per work week at a rate of one-and-a-half times the employee’s regular rate. The FLSA exempts “white collar” and highly-compensated employees from the overtime requirement, provided the employees meet specific criteria.
Employees qualify for an exemption by meeting three criteria: (1) the employee receives a fixed salary; (2) the salary meets the minimum threshold requirement (currently $455 per week, or $23,660 per year); and, (3) the employee’s responsibilities primarily involve executive, administrative, or professional duties. Highly-compensated employees who regularly perform one or more exempt duties also are exempt.
Under the final rule, the salary threshold for an exemption is set at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region. When the rule goes into effect on December 1, 2016, the salary threshold will increase to $913 per week, or $47,476 per year, more than twice the current threshold. Employers may, for the first time, use non-discretionary bonuses and incentive payments to satisfy up 10% of the new salary threshold. For the highly-compensated employee exemption, the new salary threshold is set at the 90th percentile of full-time salaried workers nationally, and will increase from $100,000 to $134,004 on December 1, 2016. These salary thresholds will be updated automatically every three years to maintain salary levels at the referenced percentiles.
The final rule does not make any changes to the existing job duty requirements for the “white collar” and highly-compensated employee exemptions.
In light of the dramatic increases in the salary thresholds, employers should consult with counsel to develop a course of action to ensure compliance with both the salary and duties tests. This change in the law presents an opportunity for employers to review whether employees classified as exempt truly meet the duties test, and the new salary threshold, under the FLSA and make any necessary corrections. The implications of misclassifying employees are widespread and costly and may result in litigation or an investigation by the DOL. With just over six months to prepare and implement a plan, employers should begin the process as soon as possible.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law and is particularly adept at handling wage and hour issues. If you have questions about how the Department of Labor’s final rule may impact your company, please contact Michele (mlj@zrlaw.com) at 216.696.4441.
Thursday, May 12, 2016
What’s a Trade Secret? Soon, Federal Courts Will Decide That Question
By: Brad E. Bennett* and Ami J. Patel**
Yesterday, President Obama signed into law the Defend Trade Secrets Act of 2016 (“DTSA”). As the law’s name suggests, the DTSA will have a major impact upon any business that seeks to protect its confidential information from inappropriate use, disclosure, and theft.
DTSA now provides access into the federal court system for anyone desiring to bring suit on most trade secrets violations. Since trade secret violation claims are commonly paired with claims for breach of non-competition and non-solicitation agreements, those latter claims now also will land in federal court far more often. DTSA will also require all employers to rewrite their non-disclosure agreements and employee handbooks, or else they will forfeit some of the DTSA’s key protections, such as the ability to recover exemplary damages and attorneys’ fees in certain situations.
Among the DTSA’s more interesting provisions:
Whistleblower / Anti-Retaliation Immunity: DTSA provides immunity to individuals who disclose trade secrets to government officials in the course of reporting suspected violations of the law. Furthermore, individuals who file a lawsuit against their employer for retaliation (which could include discrimination/harassment) may disclose trade secrets to their attorney and the court. This right might be construed broadly enough to encompass more than mere whistleblowing, but also to include ordinary retaliation claims under the discrimination laws to the extent that they are premised upon “opposition.”
Immunity Disclosure Requirements: Employers must disclose DTSA’s immunity provision to employees in any contract or agreement that governs the use of trade secrets or other confidential information (e.g., non-solicitation, confidentiality agreements). DTSA prevents employers who fail to comply with this notice requirement from obtaining exemplary damages or attorneys’ fees. This compliance item will require employers to revise any handbook provisions on confidentiality, as well as all employee non-disclosure agreements.
Inevitable Disclosure: DTSA specifically prohibits an employer from obtaining an injunction to prevent someone from entering into an employment relationship on the basis of the information that person knows. This provision effectively nullifies the “inevitable disclosure” doctrine that some courts had developed, under which an employer could seek to enjoin a former employee from working in a job that would inevitably result in the use of trade secrets, even if no evidence of actual disclosure existed.
Definitions: DTSA specifically excludes “reverse engineering” and “independent derivation” from the definition of what it means to acquire a trade secret by improper means.
Federal Seizure Remedy: In “extraordinary circumstances,” a federal court may authorize the ex-parte seizure (without notice to the other party) of property to prevent dissemination of trade secrets. This remedy is available in extremely limited circumstances, and the employer must meet a high burden to obtain this remedy. For example, the employer must demonstrate, via a verified complaint, that a temporary restraining order would be insufficient and that the wrongful holder of the trade secrets may destroy the trade secrets if given advance notice. DTSA also creates a cause of action for damages resulting from wrongful seizures. The employer also cannot have any involvement in the seizure itself—i.e., the service of papers on the person subject to the seizure, as well as everything associated with the seizure itself, must be done by federal marshals, who “may” be assisted by local law enforcement. There are also restrictions on publicizing anything associated with the seizure, a bond mandate, and provisions for requesting encryption of anything seized.
Statute of Limitations: DTSA provides for a three-year statute of limitations, which begins to run when the party discovers, or should have discovered based on reasonable diligence, the misappropriation.
Remedies: Available remedies include injunctions, damages (potentially even “reasonable royalties”), and attorneys’ fees. Exemplary damages equaling twice actual damages may be awarded “if the trade secret is willfully and maliciously misappropriated.” Attorneys’ fees may be awarded if a claim is made in bad faith, a motion to terminate an injunction is made or opposed in bad faith, or if a trade secret is willfully and maliciously misappropriated. A reasonable royalty can be recovered “in exceptional circumstances” if a mere injunction would be “inequitable.” A reasonable royalty can also be recovered “in lieu of” damages.
Relation to State Law: DTSA specifically does not preempt state law dealing with trade secrets, and injunctions issued under DTSA cannot “conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business.” Therefore, a plaintiff could potentially avoid federal court by pleading a case solely under state law.
In light of DTSA’s requirements, updating the language of existing contracts and policy documents is necessary for businesses that wish to derive all of DTSA’s benefits.
The lawyers of Zashin & Rich have decades of combined experience in drafting non-disclosure agreements, workplace confidentiality policies, and similar documents. If you have questions about DTSA, trade secrets, or other employment policy concerns, please contact either Ami J. Patel (ajp@zrlaw.com) in Z&R’s Cleveland office (216.696.4441), or Brad E. Bennett (beb@zrlaw.com) in Z&R’s Columbus office (614-224-4411).
*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 trade secrets misappropriation and enforcement of post-employment restrictive covenants.
**Ami J. Patel practices in all areas of labor and employment law. She has extensive experience counseling employers on trade secrets misappropriation and enforcement of post-employment restrictive covenants.
Yesterday, President Obama signed into law the Defend Trade Secrets Act of 2016 (“DTSA”). As the law’s name suggests, the DTSA will have a major impact upon any business that seeks to protect its confidential information from inappropriate use, disclosure, and theft.
DTSA now provides access into the federal court system for anyone desiring to bring suit on most trade secrets violations. Since trade secret violation claims are commonly paired with claims for breach of non-competition and non-solicitation agreements, those latter claims now also will land in federal court far more often. DTSA will also require all employers to rewrite their non-disclosure agreements and employee handbooks, or else they will forfeit some of the DTSA’s key protections, such as the ability to recover exemplary damages and attorneys’ fees in certain situations.
Among the DTSA’s more interesting provisions:
Whistleblower / Anti-Retaliation Immunity: DTSA provides immunity to individuals who disclose trade secrets to government officials in the course of reporting suspected violations of the law. Furthermore, individuals who file a lawsuit against their employer for retaliation (which could include discrimination/harassment) may disclose trade secrets to their attorney and the court. This right might be construed broadly enough to encompass more than mere whistleblowing, but also to include ordinary retaliation claims under the discrimination laws to the extent that they are premised upon “opposition.”
Immunity Disclosure Requirements: Employers must disclose DTSA’s immunity provision to employees in any contract or agreement that governs the use of trade secrets or other confidential information (e.g., non-solicitation, confidentiality agreements). DTSA prevents employers who fail to comply with this notice requirement from obtaining exemplary damages or attorneys’ fees. This compliance item will require employers to revise any handbook provisions on confidentiality, as well as all employee non-disclosure agreements.
Inevitable Disclosure: DTSA specifically prohibits an employer from obtaining an injunction to prevent someone from entering into an employment relationship on the basis of the information that person knows. This provision effectively nullifies the “inevitable disclosure” doctrine that some courts had developed, under which an employer could seek to enjoin a former employee from working in a job that would inevitably result in the use of trade secrets, even if no evidence of actual disclosure existed.
Definitions: DTSA specifically excludes “reverse engineering” and “independent derivation” from the definition of what it means to acquire a trade secret by improper means.
Federal Seizure Remedy: In “extraordinary circumstances,” a federal court may authorize the ex-parte seizure (without notice to the other party) of property to prevent dissemination of trade secrets. This remedy is available in extremely limited circumstances, and the employer must meet a high burden to obtain this remedy. For example, the employer must demonstrate, via a verified complaint, that a temporary restraining order would be insufficient and that the wrongful holder of the trade secrets may destroy the trade secrets if given advance notice. DTSA also creates a cause of action for damages resulting from wrongful seizures. The employer also cannot have any involvement in the seizure itself—i.e., the service of papers on the person subject to the seizure, as well as everything associated with the seizure itself, must be done by federal marshals, who “may” be assisted by local law enforcement. There are also restrictions on publicizing anything associated with the seizure, a bond mandate, and provisions for requesting encryption of anything seized.
Statute of Limitations: DTSA provides for a three-year statute of limitations, which begins to run when the party discovers, or should have discovered based on reasonable diligence, the misappropriation.
Remedies: Available remedies include injunctions, damages (potentially even “reasonable royalties”), and attorneys’ fees. Exemplary damages equaling twice actual damages may be awarded “if the trade secret is willfully and maliciously misappropriated.” Attorneys’ fees may be awarded if a claim is made in bad faith, a motion to terminate an injunction is made or opposed in bad faith, or if a trade secret is willfully and maliciously misappropriated. A reasonable royalty can be recovered “in exceptional circumstances” if a mere injunction would be “inequitable.” A reasonable royalty can also be recovered “in lieu of” damages.
Relation to State Law: DTSA specifically does not preempt state law dealing with trade secrets, and injunctions issued under DTSA cannot “conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business.” Therefore, a plaintiff could potentially avoid federal court by pleading a case solely under state law.
In light of DTSA’s requirements, updating the language of existing contracts and policy documents is necessary for businesses that wish to derive all of DTSA’s benefits.
The lawyers of Zashin & Rich have decades of combined experience in drafting non-disclosure agreements, workplace confidentiality policies, and similar documents. If you have questions about DTSA, trade secrets, or other employment policy concerns, please contact either Ami J. Patel (ajp@zrlaw.com) in Z&R’s Cleveland office (216.696.4441), or Brad E. Bennett (beb@zrlaw.com) in Z&R’s Columbus office (614-224-4411).
*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 trade secrets misappropriation and enforcement of post-employment restrictive covenants.
**Ami J. Patel practices in all areas of labor and employment law. She has extensive experience counseling employers on trade secrets misappropriation and enforcement of post-employment restrictive covenants.
Tuesday, May 3, 2016
Ohio Supreme Court Extends Sunshine Law Restrictions to E-mail Communications Among Legislators
By Jonathan J. Downes* and George S. Crisci**
This morning, the Ohio Supreme Court decided (5-2) that Ohio’s Sunshine Law (R.C. 121.22) prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face-to-face, telephonically, by video conference, or electronically by e-mail, text, tweet or other form of communication. The dispute arose over e-mail exchanges among four school board members and school district employees that discussed responding to a newspaper editorial criticizing the school board’s policy change that required all communications between board members and staff first pass through the Superintendent or Treasurer. The policy change responded to the effort of the fifth board member to investigate improper expenditures by two athletic directors, which resulted in one resigning and both being required to reimburse the school district. One of the four board members participating in the e-mail exchanges drafted a response that the other three participating board members accepted. The board president then submitted the response to the newspaper, which published the response.
The case presents a classic exercise of how to interpret statutory language that does not specifically address the subject. The majority concluded that the definition of “meeting” under the Sunshine Law does not exclude electronic communications, while the dissent argued that the language does not include electronic communications within the statutory definition and that any revisions should be left to the General Assembly.
Given the widespread use of electronic communications among public sector legislators, this decision requires a reassessment of how e-mail can be used and probably significantly restricts such communications unless the General Assembly amends the law.
Zashin and Rich attorneys previously have cautioned the use of emails and are now assessing the immediate impact of the Ohio Supreme Court decision. We will be issuing within the next few days a more detailed analysis of the decision and its impact on communications and suggested language for electronic communications. All public agencies are advised to examine their policy regarding the use of emails and other electronic communications.
In the meantime, direct questions to George Crisci (gsc@zrlaw.com) in the Cleveland office (216-696-4441) and to Jonathan Downes (jjd@zrlaw.com) and Drew Piersall (dcp@zrlaw.com) in the Columbus office (614-224-4411).
*Jonathan J. Downes, an OSBA Certified Specialist in Employment and Labor Law and a Best Lawyer in America, has over 30 years of experience in practicing labor and employment law in Ohio and advising public sector clients regarding the requirements under Ohio’s open meetings (“Sunshine”) and public records laws. He represents cities, townships, counties, school districts, and public officials throughout the State of Ohio.
**George S. Crisci, an OSBA Certified Specialist in Employment and Labor Law and a Best Lawyer in America, likewise has over 30 years of experience in practicing labor and employment law in Ohio and has extensive knowledge of Ohio’s open meetings (“Sunshine”) and public records laws.
This morning, the Ohio Supreme Court decided (5-2) that Ohio’s Sunshine Law (R.C. 121.22) prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face-to-face, telephonically, by video conference, or electronically by e-mail, text, tweet or other form of communication. The dispute arose over e-mail exchanges among four school board members and school district employees that discussed responding to a newspaper editorial criticizing the school board’s policy change that required all communications between board members and staff first pass through the Superintendent or Treasurer. The policy change responded to the effort of the fifth board member to investigate improper expenditures by two athletic directors, which resulted in one resigning and both being required to reimburse the school district. One of the four board members participating in the e-mail exchanges drafted a response that the other three participating board members accepted. The board president then submitted the response to the newspaper, which published the response.
The case presents a classic exercise of how to interpret statutory language that does not specifically address the subject. The majority concluded that the definition of “meeting” under the Sunshine Law does not exclude electronic communications, while the dissent argued that the language does not include electronic communications within the statutory definition and that any revisions should be left to the General Assembly.
Given the widespread use of electronic communications among public sector legislators, this decision requires a reassessment of how e-mail can be used and probably significantly restricts such communications unless the General Assembly amends the law.
Zashin and Rich attorneys previously have cautioned the use of emails and are now assessing the immediate impact of the Ohio Supreme Court decision. We will be issuing within the next few days a more detailed analysis of the decision and its impact on communications and suggested language for electronic communications. All public agencies are advised to examine their policy regarding the use of emails and other electronic communications.
In the meantime, direct questions to George Crisci (gsc@zrlaw.com) in the Cleveland office (216-696-4441) and to Jonathan Downes (jjd@zrlaw.com) and Drew Piersall (dcp@zrlaw.com) in the Columbus office (614-224-4411).
*Jonathan J. Downes, an OSBA Certified Specialist in Employment and Labor Law and a Best Lawyer in America, has over 30 years of experience in practicing labor and employment law in Ohio and advising public sector clients regarding the requirements under Ohio’s open meetings (“Sunshine”) and public records laws. He represents cities, townships, counties, school districts, and public officials throughout the State of Ohio.
**George S. Crisci, an OSBA Certified Specialist in Employment and Labor Law and a Best Lawyer in America, likewise has over 30 years of experience in practicing labor and employment law in Ohio and has extensive knowledge of Ohio’s open meetings (“Sunshine”) and public records laws.
Monday, March 28, 2016
EMPLOYMENT LAW QUARTERLY | Volume XVIII, Issue i
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By Stephen S. Zashin*
In December 2015, Steve Sarkisian, former University of Southern California (“USC”) head football coach, sued USC for wrongful termination. Sarkisian alleged that USC discharged him based on a disability in violation of the law. In particular, Sarkisian claimed: he suffered from alcoholism; he sought professional help; he requested time off from USC to get help; USC placed him on indefinite leave; and USC fired him while he traveled to a rehabilitation program. According to Sarkisian, instead of supporting his disability, USC “kicked him to the curb.”
Under federal law, the Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against qualified employees on the basis of a disability. Qualified employees are those who, with or without reasonable accommodation, can perform the essential functions of the job.
Alcoholics are not automatically excluded from the ADA’s coverage, as alcoholism can constitute a disability. However, current alcohol abuse does not give employees license to act with impunity. Rather, employers may hold alcoholics to the same performance and behavior standards as other employees. An employer may still discharge alcoholic employees based on misconduct (e.g., drinking on the job, driving a company vehicle drunk, etc.).
Sarkisian may struggle to establish his status as a qualified employee on two grounds. Reports suggest that Sarkisian was intoxicated during football games, practices, and while on team flights. Sarkisian attempted to explain away these incidents in his complaint. For example, he claims that during the Salute to Troy (pep rally), two light beers and anxiety medication (not inebriation) caused him to slur his words and use an expletive during his speech.
Sarkisian also may struggle to establish whether he could perform the essential functions of the head coach job with or without a reasonable accommodation. Under the ADA, an employee bears the initial burden of proposing an accommodation and showing that the accommodation is objectively reasonable. An employer does not have to provide accommodations where the employer can demonstrate the accommodation would impose an undue burden on its business operations.
In his complaint, Sarkisian alleged that he requested a reasonable accommodation which would not unduly burden USC - time off to get the help he needed. Sarkisian claimed his request for leave did not place an undue burden on USC because the University already appointed an interim head coach, the interim head coach called plays the entire season, and the interim head coach successfully led USC to a PAC-12 South Championship and bowl game. In contrast, USC likely will argue substantial time off would have been unreasonable and prevented Sarkisian from performing his essential job functions. For example, while on leave Sarkisian could not recruit coveted high school football players or spend time with boosters and alums to fundraise.
This high profile litigation provides useful lessons for employers. Employers may maintain their performance and behavior standards for current abusers of alcohol. This case demonstrates the difference between current alcohol abuse and those who seek treatment for alcoholism. Current alcohol abusers are not protected by the ADA relative to their conduct. However, those who seek treatment for alcohol abuse are entitled to reasonable accommodation by their employers. Any employer faced with a similar situation to Sarkisian should contact legal counsel to better understand their rights.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law and the head of the firm’s Labor, Employment and Sports Law Groups, has extensive experience counseling employers on the Americans with Disabilities Act, reasonable accommodations, and sports related issues. For more information about the ADA or your labor, employment or sports law needs, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
By Ami J. Patel*
The Equal Employment Opportunity Commission (“EEOC”) recently released guidance concerning the Americans with Disabilities Act’s (“ADA”) protections of HIV-positive employees. The EEOC plays a self-proclaimed “critical role in eradicating employment discrimination against those living with HIV/AIDS.” In 2014, the EEOC settled 197 HIV-related Charges of Discrimination against employers for $825,674.
Employers should address employee-related HIV issues with care. Employers may only inquire about the HIV status of an employee under limited circumstances. Generally, employers cannot ask HIV-related questions before making a job offer. However, an employer may ask medical questions in the following circumstances:
Employers also should determine whether an employee’s HIV-positive status qualifies as a disability. The ADA defines disability as a physical or mental impairment that substantially limits one or more major activities. The EEOC contends HIV-positive employees “easily” qualify under the ADA’s definition, since HIV substantially limits the immune system’s functions in the absence of medical treatment. However, at least one court found that a former employee’s HIV-positive status did not limit any major life activities where: HIV did not impact his job performance; he was “super energetic;” he had “well controlled” and “well treated” HIV; and he did not take HIV medication. Rodriguez v. HSBC Bank USA, N.A., No. 8:14-cv-945-T-30TGW, 2015 U.S. Dist. LEXIS 157883 (M.D. Fla. Nov. 23, 2015). Therefore, HIV-positive status alone may not qualify an employee as disabled under the ADA.
Assuming an employee’s HIV renders the employee “disabled,” the employee receives certain ADA protections. Employers may not discriminate against or harass an employee simply because the employee is HIV positive. In addition, the employee may be entitled to a reasonable accommodation if HIV negatively affects the employee’s job performance. This could occur from the HIV infection, side effects of HIV medication, or other medical conditions caused by HIV. Examples of reasonable accommodations include altered break or work schedules, changes in supervisory methods, and time off. Once an employee requests an accommodation, the employer should engage in an interactive process to determine what, if any, accommodation will enable the employee to perform the essential functions of the job. The employer does not have to remove the job’s fundamental duties (i.e., essential functions), let the employee do less work for the same pay, or tolerate lower-quality work through an accommodation.
Under limited circumstances, an employer may consider health or safety when deciding whether to hire or retain an HIV-positive employee. Employers do not have to retain employees who are unable to perform their job or who pose a direct threat (significant risk of substantial harm) to the health or safety of the employee or others. However, the employer must first establish it cannot reduce or eliminate that harm through a reasonable accommodation. In addition, the employer must have objective evidence (typically a medical expert) that the employee cannot perform the job or that the employer cannot eliminate the safety risk.
Ultimately, given the EEOC’s focus on the treatment of employees infected with HIV, employers should address HIV-related concerns carefully and contact counsel with questions.
*Ami J. Patel practices in all areas of labor and employment law. If you have questions about the ADA and HIV in your workplace, please contact Ami at (ajp@zrlaw.com) or 216.696.4441.
By Brad E. Bennett*
On March 17, 2016, the Ohio Supreme Court issued its much anticipated ruling in Haight v. Minchak, 2016-Ohio-1053. Haight involved a challenge to Ohio’s minimum wage statute by two outside sales representatives of the Cheap Escape Company. The two alleged that outside sales representatives were “employees,” as defined under the 2006 Fair Minimum Wage Amendment to Ohio’s Constitution (“Amendment”), and, as a result, were entitled to minimum wage. The employees argued that Ohio’s minimum wage statute, which was enacted after passage of the Amendment, was unconstitutional since it adopted the exemptions to the definition of “employee” under federal law.
In November 2006, Ohio voters approved the Amendment, which established the Ohio minimum wage and provided for annual adjustments. The Amendment defines an “employee” as having the same meanings as under the federal Fair Labor Standards Act (“FLSA”) and states that the Ohio General Assembly shall pass no laws that “restrict any provision of the law.” The employees focused on this language of the Amendment to attack the later enacted minimum wage statute.
After voter approval of the Amendment, the Ohio General Assembly immediately enacted the minimum wage statute clarifying that “employee,” as defined under Ohio law, “does not mean individuals who are excluded from the definition of ‘employee’ under [the FLSA].” Cheap Escape argued that since the FLSA specifically exempts outside salespeople (and others) from the minimum wage requirements, the same exclusions should apply under Ohio law.
The employees, on the other hand, argued that the definition of “employee” as contained in the Amendment did not expressly exclude employees who are exempt from minimum wage requirements under the FLSA. They argued that Ohio’s statute, by excluding outside sales representatives from minimum wage protection, was unconstitutional since it impermissibly restricted the definition of employee as laid out in the Amendment.
The trial court sided with Cheap Escape. However, the Court of Appeals reversed course determining that even if individuals such as outside salespeople are exempt from the FLSA’s minimum wage provisions, they still remain “employees” as that term is defined by the FLSA. According to the Court of Appeals, since the definition of “employee” includes outside salespeople, the Ohio legislature impermissibly narrowed the definition of employee in the statute when it excluded outside salespeople. The employer promptly appealed to the Ohio Supreme Court.
The Ohio Supreme Court reversed the Court of Appeals. In doing so, it focused on the fact that the Amendment states that “employee” shall have the same “meanings” as in the FLSA. The Supreme Court rationalized that the Amendment’s use of the plural indicated that “more than one definition applies, which then necessarily includes both exclusions and exemptions.” Based upon this interpretation, the Ohio Supreme Court concluded that Ohio’s minimum wage statute simply captured all of the “meanings” of employee under the FLSA and was constitutional.
This is a welcome decision for Ohio Employers as it maintains the status-quo. Had the Supreme Court allowed the Court of Appeals' decision to stand, Ohio employers would have faced serious exposure to minimum wage claims, as they would have been unable to rely upon the federal minimum wage exclusions. Employers also would have been required to apply competing federal and state standards with varying levels of recordkeeping and reporting requirements.
*Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment law, regularly counsels public and private employers on wage and hours issues. For more information about this recent ruling or your wage and hour law needs, please contact Brad (beb@zrlaw.com) at 614.224.4411.
By Patrick M. Watts*
Last November, many Ohio employers exhaled a sigh of relief after voters just said no to Issue 3, which would have amended the State Constitution to legalize recreational and medical marijuana. Although the prospect of recreational marijuana legalization no longer seems imminent, medical marijuana is a different story. In the wake of Issue 3, there has been an increased focus in Ohio on medical marijuana by proponents and politicians alike. The Ohio House of Representatives created a bipartisan taskforce to explore the possibility of legalizing medical marijuana. The Ohio Senate recently held a string of public hearings regarding medical marijuana. During an appearance on the Late Show, Governor John Kasich voiced an openness to the idea stating, “when it comes to medical marijuana, if the experts come back and say we need this for people who have seizures, I’m for that.” Ohio employers should be prepared for the possibility of dealing with the implications of medical marijuana in the not-too-distant future.
Currently, 23 states and Washington D.C. have legalized medical or recreational marijuana. Under the federal Controlled Substances Act, however, marijuana remains classified as a Schedule I illegal substance. A recent SHRM survey of employers in states that have legalized marijuana found 94% of respondents maintained written substance abuse policies. Employer drug policies in these states have led to litigation, including claims under the Americans with Disabilities Act and similar state laws by employees with medical marijuana prescriptions for disabilities. Fortunately for employers, the federal prohibition on marijuana has been a successful defense to such claims.
For example, a federal district court in Washington dismissed disability discrimination and retaliation claims brought by an employee who was terminated after he tested positive for marijuana, despite having a valid state medical marijuana prescription. See Swaw v. Safeway, Inc., No. C15-939 MJP, 2015 U.S. Dist. LEXIS 159761 (W.D. Wash. Nov. 20, 2015). In Swaw, the employer’s drug-free workplace policy prohibited testing positive for any drugs or substances “listed in any controlled substances acts or regulations applicable under federal, state, or local law.” The plaintiff tested positive for marijuana after an on-the-job injury, resulting in his termination. Subsequently, he brought a lawsuit alleging disability discrimination claiming: (1) he had a valid prescription to use marijuana outside of work to treat his disabilities; and (2) his employer disciplined him more harshly than other employees that were found to be intoxicated with alcohol at work.
In rejecting the plaintiff’s discrimination claim, the court first noted that Washington’s marijuana law “does not require employers to accommodate the use of medical marijuana where they have a drug-free workplace, even if medical marijuana is being used off site to treat an employee’s disabilities, and the use of marijuana for medical purposes remains unlawful under federal law.” With respect to the plaintiff’s disparate discipline argument, the court stated “[m]arijuana is a Schedule I controlled substance and is illegal under federal law; alcohol is not.” Therefore, employers have no obligation to treat medical marijuana users the same as employees intoxicated with alcohol.
The Swaw decision lines up with other court decisions that refuse to find actionable claims based upon medical marijuana use. See, e.g., Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. Sup. Ct. 2015) (“[E]mployees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected.”). Accordingly, as long as marijuana remains illegal under federal law, employers will have a strong defense to employee claims premised upon marijuana use. In anticipation of the possible legalization of medical marijuana, employers should consider revising or instituting drug-free workplace policies to ensure that they have clearly communicated prohibitions and expectations regarding the use of marijuana and other drugs in the workplace.
*Patrick M. Watts, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. If you have questions about the implications of marijuana legalization in your workplace, please contact Patrick at (pmw@zrlaw.com) or 216.696.4441.
Jeffrey J. Wedel has extensive trial experience, having tried more than 100 cases to verdict. Jeff regularly defends employers and insurers in all forms of employment discrimination, retaliation, wrongful discharge, whistleblower, and ADA public accommodation cases. He has defended employers throughout the country and has tried cases in Ohio, Michigan, Illinois, Georgia, Mississippi, Tennessee, North and South Carolina, Virginia, and Connecticut. Jeff also defends employers and manufacturers involving intentional torts, chemical exposure, and other toxic tort claims. He represents employers in ERISA and employee benefits litigation, enforcement and defense of confidentiality agreements, covenants not to compete, and trade secret cases. Jeff is a member of the Ohio State Bar Association Labor and Employment Law Section Council. He also is recognized as a leading lawyer in his field, having been listed in Ohio Super Lawyers since 2010 and in The Best Lawyers in America each year since 2006.
Emilie M. Carver has experience in all aspects of defending private and public sector employers in employment law cases. Emilie has defended clients against claims involving the ADA, Title VII of the Civil Rights Act, covenants not to compete, contract issues, and other related claims. Emilie also has represented employers before the Equal Employment Opportunity Commission. Prior to entering private practice, Emilie served as a law clerk for the Honorable Judge John R. Adams at the U.S. District Court for the Northern District of Ohio. There, Emilie managed and advised Judge Adams on a variety of civil cases from the complaint to completion of the case, including issues involving the FLSA, ERISA, ADA, Fair Debt Collection Practices Act, Title VII of the Civil Rights Act, labor disputes, civil rights claims, and personal injury lawsuits. Emilie also clerked for the Honorable Carla Moore at the Ohio Ninth District Court of Appeals. At the Ninth District, she assisted in drafting more than 200 appellate opinions on topics including evidentiary issues, public policy, and administrative appeals from local administrative agencies.
Zashin & Rich is pleased to announce that Jonathan J. Downes received the Ohio Public Employers Labor Relations Association’s (“OHPELRA”) 2015 Award of Excellence. The OHPELRA Award of Excellence represents the highest acknowledgment OHPELRA can bestow on an individual for their dedication and achievement in the development of labor-management relations. This award is a testament to Jonathan’s outstanding contributions to management in the field of public sector labor relations.
Zashin & Rich also is pleased to announce that the Ohio State Bar Association has certified Drew C. Piersall as a specialist in Labor and Employment Law. The rigorous OSBA certification process requires attorneys to take and pass a written examination in their specialty field, demonstrate a high level of substantial involvement in their specialty area, fulfill ongoing education requirements, and be favorably evaluated by other attorneys or judges familiar with their work.
Congratulations to Jonathan and Drew on their outstanding achievements!
- College Football, Alcoholism, and the Americans with Disabilities Act
- Myths and Stereotypes – HIV and the Workplace
- Ohio Supreme Court Finds Ohio’s Minimum-Wage Law Constitutional
- Joint Employers: Dealing with Marijuana Legalization
- Z&R SHORTS
College Football, Alcoholism, and the Americans with Disabilities Act
By Stephen S. Zashin*
In December 2015, Steve Sarkisian, former University of Southern California (“USC”) head football coach, sued USC for wrongful termination. Sarkisian alleged that USC discharged him based on a disability in violation of the law. In particular, Sarkisian claimed: he suffered from alcoholism; he sought professional help; he requested time off from USC to get help; USC placed him on indefinite leave; and USC fired him while he traveled to a rehabilitation program. According to Sarkisian, instead of supporting his disability, USC “kicked him to the curb.”
Under federal law, the Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against qualified employees on the basis of a disability. Qualified employees are those who, with or without reasonable accommodation, can perform the essential functions of the job.
Alcoholics are not automatically excluded from the ADA’s coverage, as alcoholism can constitute a disability. However, current alcohol abuse does not give employees license to act with impunity. Rather, employers may hold alcoholics to the same performance and behavior standards as other employees. An employer may still discharge alcoholic employees based on misconduct (e.g., drinking on the job, driving a company vehicle drunk, etc.).
Sarkisian may struggle to establish his status as a qualified employee on two grounds. Reports suggest that Sarkisian was intoxicated during football games, practices, and while on team flights. Sarkisian attempted to explain away these incidents in his complaint. For example, he claims that during the Salute to Troy (pep rally), two light beers and anxiety medication (not inebriation) caused him to slur his words and use an expletive during his speech.
Sarkisian also may struggle to establish whether he could perform the essential functions of the head coach job with or without a reasonable accommodation. Under the ADA, an employee bears the initial burden of proposing an accommodation and showing that the accommodation is objectively reasonable. An employer does not have to provide accommodations where the employer can demonstrate the accommodation would impose an undue burden on its business operations.
In his complaint, Sarkisian alleged that he requested a reasonable accommodation which would not unduly burden USC - time off to get the help he needed. Sarkisian claimed his request for leave did not place an undue burden on USC because the University already appointed an interim head coach, the interim head coach called plays the entire season, and the interim head coach successfully led USC to a PAC-12 South Championship and bowl game. In contrast, USC likely will argue substantial time off would have been unreasonable and prevented Sarkisian from performing his essential job functions. For example, while on leave Sarkisian could not recruit coveted high school football players or spend time with boosters and alums to fundraise.
This high profile litigation provides useful lessons for employers. Employers may maintain their performance and behavior standards for current abusers of alcohol. This case demonstrates the difference between current alcohol abuse and those who seek treatment for alcoholism. Current alcohol abusers are not protected by the ADA relative to their conduct. However, those who seek treatment for alcohol abuse are entitled to reasonable accommodation by their employers. Any employer faced with a similar situation to Sarkisian should contact legal counsel to better understand their rights.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law and the head of the firm’s Labor, Employment and Sports Law Groups, has extensive experience counseling employers on the Americans with Disabilities Act, reasonable accommodations, and sports related issues. For more information about the ADA or your labor, employment or sports law needs, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
Myths and Stereotypes – HIV and the Workplace
By Ami J. Patel*
The Equal Employment Opportunity Commission (“EEOC”) recently released guidance concerning the Americans with Disabilities Act’s (“ADA”) protections of HIV-positive employees. The EEOC plays a self-proclaimed “critical role in eradicating employment discrimination against those living with HIV/AIDS.” In 2014, the EEOC settled 197 HIV-related Charges of Discrimination against employers for $825,674.
Employers should address employee-related HIV issues with care. Employers may only inquire about the HIV status of an employee under limited circumstances. Generally, employers cannot ask HIV-related questions before making a job offer. However, an employer may ask medical questions in the following circumstances:
- The employer asks the question(s) for affirmative action purposes and any employee response is voluntary;
- An employee requests a reasonable accommodation;
- The question occurs post-job offer and pre-employment, and the employer asks the same question of everyone entering the same job category; or
- On the job, where the employer has objective evidence that the employee may be unable to do the job or may pose a significant safety risk because of his/her medical condition.
Employers also should determine whether an employee’s HIV-positive status qualifies as a disability. The ADA defines disability as a physical or mental impairment that substantially limits one or more major activities. The EEOC contends HIV-positive employees “easily” qualify under the ADA’s definition, since HIV substantially limits the immune system’s functions in the absence of medical treatment. However, at least one court found that a former employee’s HIV-positive status did not limit any major life activities where: HIV did not impact his job performance; he was “super energetic;” he had “well controlled” and “well treated” HIV; and he did not take HIV medication. Rodriguez v. HSBC Bank USA, N.A., No. 8:14-cv-945-T-30TGW, 2015 U.S. Dist. LEXIS 157883 (M.D. Fla. Nov. 23, 2015). Therefore, HIV-positive status alone may not qualify an employee as disabled under the ADA.
Assuming an employee’s HIV renders the employee “disabled,” the employee receives certain ADA protections. Employers may not discriminate against or harass an employee simply because the employee is HIV positive. In addition, the employee may be entitled to a reasonable accommodation if HIV negatively affects the employee’s job performance. This could occur from the HIV infection, side effects of HIV medication, or other medical conditions caused by HIV. Examples of reasonable accommodations include altered break or work schedules, changes in supervisory methods, and time off. Once an employee requests an accommodation, the employer should engage in an interactive process to determine what, if any, accommodation will enable the employee to perform the essential functions of the job. The employer does not have to remove the job’s fundamental duties (i.e., essential functions), let the employee do less work for the same pay, or tolerate lower-quality work through an accommodation.
Under limited circumstances, an employer may consider health or safety when deciding whether to hire or retain an HIV-positive employee. Employers do not have to retain employees who are unable to perform their job or who pose a direct threat (significant risk of substantial harm) to the health or safety of the employee or others. However, the employer must first establish it cannot reduce or eliminate that harm through a reasonable accommodation. In addition, the employer must have objective evidence (typically a medical expert) that the employee cannot perform the job or that the employer cannot eliminate the safety risk.
Ultimately, given the EEOC’s focus on the treatment of employees infected with HIV, employers should address HIV-related concerns carefully and contact counsel with questions.
*Ami J. Patel practices in all areas of labor and employment law. If you have questions about the ADA and HIV in your workplace, please contact Ami at (ajp@zrlaw.com) or 216.696.4441.
Ohio Supreme Court Finds Ohio’s Minimum-Wage Law Constitutional
By Brad E. Bennett*
On March 17, 2016, the Ohio Supreme Court issued its much anticipated ruling in Haight v. Minchak, 2016-Ohio-1053. Haight involved a challenge to Ohio’s minimum wage statute by two outside sales representatives of the Cheap Escape Company. The two alleged that outside sales representatives were “employees,” as defined under the 2006 Fair Minimum Wage Amendment to Ohio’s Constitution (“Amendment”), and, as a result, were entitled to minimum wage. The employees argued that Ohio’s minimum wage statute, which was enacted after passage of the Amendment, was unconstitutional since it adopted the exemptions to the definition of “employee” under federal law.
In November 2006, Ohio voters approved the Amendment, which established the Ohio minimum wage and provided for annual adjustments. The Amendment defines an “employee” as having the same meanings as under the federal Fair Labor Standards Act (“FLSA”) and states that the Ohio General Assembly shall pass no laws that “restrict any provision of the law.” The employees focused on this language of the Amendment to attack the later enacted minimum wage statute.
After voter approval of the Amendment, the Ohio General Assembly immediately enacted the minimum wage statute clarifying that “employee,” as defined under Ohio law, “does not mean individuals who are excluded from the definition of ‘employee’ under [the FLSA].” Cheap Escape argued that since the FLSA specifically exempts outside salespeople (and others) from the minimum wage requirements, the same exclusions should apply under Ohio law.
The employees, on the other hand, argued that the definition of “employee” as contained in the Amendment did not expressly exclude employees who are exempt from minimum wage requirements under the FLSA. They argued that Ohio’s statute, by excluding outside sales representatives from minimum wage protection, was unconstitutional since it impermissibly restricted the definition of employee as laid out in the Amendment.
The trial court sided with Cheap Escape. However, the Court of Appeals reversed course determining that even if individuals such as outside salespeople are exempt from the FLSA’s minimum wage provisions, they still remain “employees” as that term is defined by the FLSA. According to the Court of Appeals, since the definition of “employee” includes outside salespeople, the Ohio legislature impermissibly narrowed the definition of employee in the statute when it excluded outside salespeople. The employer promptly appealed to the Ohio Supreme Court.
The Ohio Supreme Court reversed the Court of Appeals. In doing so, it focused on the fact that the Amendment states that “employee” shall have the same “meanings” as in the FLSA. The Supreme Court rationalized that the Amendment’s use of the plural indicated that “more than one definition applies, which then necessarily includes both exclusions and exemptions.” Based upon this interpretation, the Ohio Supreme Court concluded that Ohio’s minimum wage statute simply captured all of the “meanings” of employee under the FLSA and was constitutional.
This is a welcome decision for Ohio Employers as it maintains the status-quo. Had the Supreme Court allowed the Court of Appeals' decision to stand, Ohio employers would have faced serious exposure to minimum wage claims, as they would have been unable to rely upon the federal minimum wage exclusions. Employers also would have been required to apply competing federal and state standards with varying levels of recordkeeping and reporting requirements.
*Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment law, regularly counsels public and private employers on wage and hours issues. For more information about this recent ruling or your wage and hour law needs, please contact Brad (beb@zrlaw.com) at 614.224.4411.
Joint Employers: Dealing with Marijuana Legalization
By Patrick M. Watts*
Last November, many Ohio employers exhaled a sigh of relief after voters just said no to Issue 3, which would have amended the State Constitution to legalize recreational and medical marijuana. Although the prospect of recreational marijuana legalization no longer seems imminent, medical marijuana is a different story. In the wake of Issue 3, there has been an increased focus in Ohio on medical marijuana by proponents and politicians alike. The Ohio House of Representatives created a bipartisan taskforce to explore the possibility of legalizing medical marijuana. The Ohio Senate recently held a string of public hearings regarding medical marijuana. During an appearance on the Late Show, Governor John Kasich voiced an openness to the idea stating, “when it comes to medical marijuana, if the experts come back and say we need this for people who have seizures, I’m for that.” Ohio employers should be prepared for the possibility of dealing with the implications of medical marijuana in the not-too-distant future.
Currently, 23 states and Washington D.C. have legalized medical or recreational marijuana. Under the federal Controlled Substances Act, however, marijuana remains classified as a Schedule I illegal substance. A recent SHRM survey of employers in states that have legalized marijuana found 94% of respondents maintained written substance abuse policies. Employer drug policies in these states have led to litigation, including claims under the Americans with Disabilities Act and similar state laws by employees with medical marijuana prescriptions for disabilities. Fortunately for employers, the federal prohibition on marijuana has been a successful defense to such claims.
For example, a federal district court in Washington dismissed disability discrimination and retaliation claims brought by an employee who was terminated after he tested positive for marijuana, despite having a valid state medical marijuana prescription. See Swaw v. Safeway, Inc., No. C15-939 MJP, 2015 U.S. Dist. LEXIS 159761 (W.D. Wash. Nov. 20, 2015). In Swaw, the employer’s drug-free workplace policy prohibited testing positive for any drugs or substances “listed in any controlled substances acts or regulations applicable under federal, state, or local law.” The plaintiff tested positive for marijuana after an on-the-job injury, resulting in his termination. Subsequently, he brought a lawsuit alleging disability discrimination claiming: (1) he had a valid prescription to use marijuana outside of work to treat his disabilities; and (2) his employer disciplined him more harshly than other employees that were found to be intoxicated with alcohol at work.
In rejecting the plaintiff’s discrimination claim, the court first noted that Washington’s marijuana law “does not require employers to accommodate the use of medical marijuana where they have a drug-free workplace, even if medical marijuana is being used off site to treat an employee’s disabilities, and the use of marijuana for medical purposes remains unlawful under federal law.” With respect to the plaintiff’s disparate discipline argument, the court stated “[m]arijuana is a Schedule I controlled substance and is illegal under federal law; alcohol is not.” Therefore, employers have no obligation to treat medical marijuana users the same as employees intoxicated with alcohol.
The Swaw decision lines up with other court decisions that refuse to find actionable claims based upon medical marijuana use. See, e.g., Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. Sup. Ct. 2015) (“[E]mployees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected.”). Accordingly, as long as marijuana remains illegal under federal law, employers will have a strong defense to employee claims premised upon marijuana use. In anticipation of the possible legalization of medical marijuana, employers should consider revising or instituting drug-free workplace policies to ensure that they have clearly communicated prohibitions and expectations regarding the use of marijuana and other drugs in the workplace.
*Patrick M. Watts, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. If you have questions about the implications of marijuana legalization in your workplace, please contact Patrick at (pmw@zrlaw.com) or 216.696.4441.
Z&R SHORTS
Please join Z&R in welcoming two new attorneys to its Employment and Labor Groups.
Jeffrey J. Wedel has extensive trial experience, having tried more than 100 cases to verdict. Jeff regularly defends employers and insurers in all forms of employment discrimination, retaliation, wrongful discharge, whistleblower, and ADA public accommodation cases. He has defended employers throughout the country and has tried cases in Ohio, Michigan, Illinois, Georgia, Mississippi, Tennessee, North and South Carolina, Virginia, and Connecticut. Jeff also defends employers and manufacturers involving intentional torts, chemical exposure, and other toxic tort claims. He represents employers in ERISA and employee benefits litigation, enforcement and defense of confidentiality agreements, covenants not to compete, and trade secret cases. Jeff is a member of the Ohio State Bar Association Labor and Employment Law Section Council. He also is recognized as a leading lawyer in his field, having been listed in Ohio Super Lawyers since 2010 and in The Best Lawyers in America each year since 2006.
Emilie M. Carver has experience in all aspects of defending private and public sector employers in employment law cases. Emilie has defended clients against claims involving the ADA, Title VII of the Civil Rights Act, covenants not to compete, contract issues, and other related claims. Emilie also has represented employers before the Equal Employment Opportunity Commission. Prior to entering private practice, Emilie served as a law clerk for the Honorable Judge John R. Adams at the U.S. District Court for the Northern District of Ohio. There, Emilie managed and advised Judge Adams on a variety of civil cases from the complaint to completion of the case, including issues involving the FLSA, ERISA, ADA, Fair Debt Collection Practices Act, Title VII of the Civil Rights Act, labor disputes, civil rights claims, and personal injury lawsuits. Emilie also clerked for the Honorable Carla Moore at the Ohio Ninth District Court of Appeals. At the Ninth District, she assisted in drafting more than 200 appellate opinions on topics including evidentiary issues, public policy, and administrative appeals from local administrative agencies.Congratulations to Attorneys in Z&R’s Columbus, Ohio Office!
Zashin & Rich is pleased to announce that Jonathan J. Downes received the Ohio Public Employers Labor Relations Association’s (“OHPELRA”) 2015 Award of Excellence. The OHPELRA Award of Excellence represents the highest acknowledgment OHPELRA can bestow on an individual for their dedication and achievement in the development of labor-management relations. This award is a testament to Jonathan’s outstanding contributions to management in the field of public sector labor relations.
Zashin & Rich also is pleased to announce that the Ohio State Bar Association has certified Drew C. Piersall as a specialist in Labor and Employment Law. The rigorous OSBA certification process requires attorneys to take and pass a written examination in their specialty field, demonstrate a high level of substantial involvement in their specialty area, fulfill ongoing education requirements, and be favorably evaluated by other attorneys or judges familiar with their work.Congratulations to Jonathan and Drew on their outstanding achievements!
Thursday, March 24, 2016
Your Next Website Visit Could Land You in Court
By Jeffrey J. Wedel*
Consider this scenario – a retail company has brick and mortar stores in which customers may view, try on, and purchase products. The company also maintains websites on which customers can locate stores, view and purchase products, review product descriptions and prices, and sign up for email lists. Over a recent three-year span, the company’s internet sales increased nearly 40 percent annually. Sounds great, right? Yes, but there’s a catch – that company (Foot Locker) now faces a lawsuit based on its website. A legally blind consumer sued Foot Locker alleging the company’s websites are not accessible to blind and visually impaired consumers in violation of the Americans with Disabilities Act (“ADA”). Jahoda v. Foot Locker, Inc., No. 2:15-cv-01000-AJS (W.D. Pa. filed Jul. 31, 2015).
Title III of the ADA prohibits discrimination against individuals on the basis of disability in the full and equal enjoyment of “public accommodations.” The statute defines “public accommodations” as facilities whose operations affect commerce and fall within one of 12 different types of establishments. Those include hotels, restaurants, bars, theaters, and sales, rental, or service establishments. There is no clear indication in the statute that websites fall within its scope.
The Foot Locker lawsuit represents a growing trend of Title III public accommodation lawsuits based on website accessibility. In 2015 alone, plaintiffs filed over 40 cases against well-known companies including the National Basketball Association, J.C. Penny Co., and Home Depot Inc. Since March 2012, the Foot Locker plaintiff has filed 68 lawsuits against companies such as Brooks Brothers Inc. and Hard Rock Café Int’l, Inc.
The plaintiffs in these lawsuits may seek a range of costly remedies and typically demand website monitoring by plaintiffs at the company’s expense. For example, one common demand of remediation may include having the company embed Alternative Text, or a text equivalent, beneath images on its website. Blind and visually impaired individuals frequently use screen reader software, which converts text to audio, to access the information available on website. In the Foot Locker case, the plaintiff sought to require the company to: retain a consultant (agreeable to the plaintiff) to improve the website’s accessibility; have the consultant conduct periodic trainings; have the consultant perform ongoing accessibility audits and tests; and create accessibility policies and hotlines, all paid for by the company. Including monitoring efforts, plaintiff attorneys’ fees and costs typically exceed tens of thousands of dollars.
These lawsuits are largely the byproduct of an uncertain legal landscape. Title III does not specifically address website access and courts have provided little, if any guidance. Typically, federal agencies would provide direction. Here, however, the Department of Justice (“DOJ”) has delayed issuing regulations. In 2010, the DOJ suggested it would issue proposed regulations in 2016 and sought public comment on topics including: the appropriate website accessibility standards; the costs of making websites accessible; and whether reasonable and effective alternatives exist. The DOJ also suggested businesses could comply with the ADA by providing accessible alternatives, such as a staffed telephone line. However, in December 2015, the DOJ announced it will not issue proposed regulations until 2018. Furthermore, the DOJ seemingly changed its approach. In 2015, it filed briefs in support of the plaintiffs in website accessibility lawsuits against two major private universities. In its briefs, the DOJ suggested businesses have preexisting obligations under a general provision of the statute to make websites accessible (as opposed to allowing for reasonable alternatives). Thus, even in the absence of proposed regulations, the DOJ has begun pressuring businesses into making their websites accessible. Uncertainty will reign until the DOJ issues concrete guidance.
In addition, website accessibility issues raise internal website operation and maintenance concerns. Businesses that contract with third party vendors for website operation should review those contracts to determine who holds responsibility for compliance with the law.
Ultimately, the legal landscape regarding Title III public accommodation website accessibility lawsuits remains very uncertain, with no clear guidance in the foreseeable future. As such, any businesses engaging in e-commerce should contact counsel familiar with Title III to assess potential liability.
*Jeffrey J. Wedel is a member of the firm’s Employment & Labor Group whose practice focuses on litigation. Jeff has extensive experience defending against Title III public accommodation claims. If you have questions about the ADA, Title III, or the accessibility of your website, please contact Jeff (jjw@zrlaw.com) at 216.696.4441.
Consider this scenario – a retail company has brick and mortar stores in which customers may view, try on, and purchase products. The company also maintains websites on which customers can locate stores, view and purchase products, review product descriptions and prices, and sign up for email lists. Over a recent three-year span, the company’s internet sales increased nearly 40 percent annually. Sounds great, right? Yes, but there’s a catch – that company (Foot Locker) now faces a lawsuit based on its website. A legally blind consumer sued Foot Locker alleging the company’s websites are not accessible to blind and visually impaired consumers in violation of the Americans with Disabilities Act (“ADA”). Jahoda v. Foot Locker, Inc., No. 2:15-cv-01000-AJS (W.D. Pa. filed Jul. 31, 2015).
Title III of the ADA prohibits discrimination against individuals on the basis of disability in the full and equal enjoyment of “public accommodations.” The statute defines “public accommodations” as facilities whose operations affect commerce and fall within one of 12 different types of establishments. Those include hotels, restaurants, bars, theaters, and sales, rental, or service establishments. There is no clear indication in the statute that websites fall within its scope.
The Foot Locker lawsuit represents a growing trend of Title III public accommodation lawsuits based on website accessibility. In 2015 alone, plaintiffs filed over 40 cases against well-known companies including the National Basketball Association, J.C. Penny Co., and Home Depot Inc. Since March 2012, the Foot Locker plaintiff has filed 68 lawsuits against companies such as Brooks Brothers Inc. and Hard Rock Café Int’l, Inc.
The plaintiffs in these lawsuits may seek a range of costly remedies and typically demand website monitoring by plaintiffs at the company’s expense. For example, one common demand of remediation may include having the company embed Alternative Text, or a text equivalent, beneath images on its website. Blind and visually impaired individuals frequently use screen reader software, which converts text to audio, to access the information available on website. In the Foot Locker case, the plaintiff sought to require the company to: retain a consultant (agreeable to the plaintiff) to improve the website’s accessibility; have the consultant conduct periodic trainings; have the consultant perform ongoing accessibility audits and tests; and create accessibility policies and hotlines, all paid for by the company. Including monitoring efforts, plaintiff attorneys’ fees and costs typically exceed tens of thousands of dollars.
These lawsuits are largely the byproduct of an uncertain legal landscape. Title III does not specifically address website access and courts have provided little, if any guidance. Typically, federal agencies would provide direction. Here, however, the Department of Justice (“DOJ”) has delayed issuing regulations. In 2010, the DOJ suggested it would issue proposed regulations in 2016 and sought public comment on topics including: the appropriate website accessibility standards; the costs of making websites accessible; and whether reasonable and effective alternatives exist. The DOJ also suggested businesses could comply with the ADA by providing accessible alternatives, such as a staffed telephone line. However, in December 2015, the DOJ announced it will not issue proposed regulations until 2018. Furthermore, the DOJ seemingly changed its approach. In 2015, it filed briefs in support of the plaintiffs in website accessibility lawsuits against two major private universities. In its briefs, the DOJ suggested businesses have preexisting obligations under a general provision of the statute to make websites accessible (as opposed to allowing for reasonable alternatives). Thus, even in the absence of proposed regulations, the DOJ has begun pressuring businesses into making their websites accessible. Uncertainty will reign until the DOJ issues concrete guidance.
In addition, website accessibility issues raise internal website operation and maintenance concerns. Businesses that contract with third party vendors for website operation should review those contracts to determine who holds responsibility for compliance with the law.
Ultimately, the legal landscape regarding Title III public accommodation website accessibility lawsuits remains very uncertain, with no clear guidance in the foreseeable future. As such, any businesses engaging in e-commerce should contact counsel familiar with Title III to assess potential liability.
*Jeffrey J. Wedel is a member of the firm’s Employment & Labor Group whose practice focuses on litigation. Jeff has extensive experience defending against Title III public accommodation claims. If you have questions about the ADA, Title III, or the accessibility of your website, please contact Jeff (jjw@zrlaw.com) at 216.696.4441.
Friday, January 15, 2016
Bugged: NLRB Protects Surreptitious Workplace Recordings
By David P. Frantz*
At the end of 2015, the National Labor Relations Board (“NLRB”) marched on in its war against commonplace employee handbook provisions and found that Whole Foods’ policy prohibiting surreptitious workplace recordings violated employees’ rights under the National Labor Relations Act (“NLRA”). See Whole Foods Market, Inc., 363 NLRB No. 87 (December 24, 2015). The NLRB’s decision is a reminder to employers that seemingly innocuous and well-intentioned policies may be deemed unlawful by the NLRB, even in the face of reasonable business justifications.
Whole Foods’ recording policy, which had been in place for over a decade, prohibited employees (including managers) from recording “conversations, phone calls, images or company meetings” on company premises without prior approval from management. Whole Foods attempted to justify this prohibition based upon its open-door policy encouraging employees to state their opinions. Whole Foods argued that recordings of the company’s open forum meetings would “chill the dynamic” and discourage employees from voicing their opinions and criticisms. Additionally, Whole Foods argued that recordings would adversely affect the company’s internal appeal process for termination decisions and confidential meetings held to discuss financial assistance for employees.
The NLRB was unpersuaded by Whole Foods’ justifications and held that employees would reasonably construe the recording policy to prohibit them from exercising their rights under the NLRA. “Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected . . . if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.” The NLRB provided examples of protected conduct, including “recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.” As Whole Foods’ policy prohibited all unapproved workplace recordings without any qualifications, the NLRB found it to be overbroad and unlawful.
The NLRB noted it was not prohibiting outright all employer restrictions on workplace recordings. Rather, employers may have valid, narrowly-drawn restrictions on recordings when warranted by the circumstances. For example, in a hospital setting, patient privacy interests can provide a compelling justification for a policy prohibiting employees from recording images of patients, equipment, and facilities. The NLRB stated that Whole Foods’ business justifications (i.e., encouraging open communication and preserving privacy interests) were “not without merit.” However, it found the justifications were based upon relatively limited circumstances (e.g., meetings and termination appeal panels) that were not compelling enough to justify the unqualified restriction on unapproved recordings.
In light of the NLRB’s Whole Foods decision, employers should review their employee handbooks and policies regarding workplace recordings. Such policies could lead to unfair labor practice charges, and the NLRB likely will deem unlawful any blanket prohibitions of workplace recordings that lack compelling and specific justification. Employers that have policies restricting workplace recordings and wish to retain them should contact counsel about revising the policies to withstand the NLRB’s scrutiny.
*David P. Frantz regularly represents and counsels employers on the National Labor Relations Act and workplace policy related issues. For more information about the Whole Foods decision or your labor and employment law needs, please contact Dave (dpf@zrlaw.com) at 216.696.4441.
At the end of 2015, the National Labor Relations Board (“NLRB”) marched on in its war against commonplace employee handbook provisions and found that Whole Foods’ policy prohibiting surreptitious workplace recordings violated employees’ rights under the National Labor Relations Act (“NLRA”). See Whole Foods Market, Inc., 363 NLRB No. 87 (December 24, 2015). The NLRB’s decision is a reminder to employers that seemingly innocuous and well-intentioned policies may be deemed unlawful by the NLRB, even in the face of reasonable business justifications.
Whole Foods’ recording policy, which had been in place for over a decade, prohibited employees (including managers) from recording “conversations, phone calls, images or company meetings” on company premises without prior approval from management. Whole Foods attempted to justify this prohibition based upon its open-door policy encouraging employees to state their opinions. Whole Foods argued that recordings of the company’s open forum meetings would “chill the dynamic” and discourage employees from voicing their opinions and criticisms. Additionally, Whole Foods argued that recordings would adversely affect the company’s internal appeal process for termination decisions and confidential meetings held to discuss financial assistance for employees.
The NLRB was unpersuaded by Whole Foods’ justifications and held that employees would reasonably construe the recording policy to prohibit them from exercising their rights under the NLRA. “Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected . . . if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.” The NLRB provided examples of protected conduct, including “recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.” As Whole Foods’ policy prohibited all unapproved workplace recordings without any qualifications, the NLRB found it to be overbroad and unlawful.
The NLRB noted it was not prohibiting outright all employer restrictions on workplace recordings. Rather, employers may have valid, narrowly-drawn restrictions on recordings when warranted by the circumstances. For example, in a hospital setting, patient privacy interests can provide a compelling justification for a policy prohibiting employees from recording images of patients, equipment, and facilities. The NLRB stated that Whole Foods’ business justifications (i.e., encouraging open communication and preserving privacy interests) were “not without merit.” However, it found the justifications were based upon relatively limited circumstances (e.g., meetings and termination appeal panels) that were not compelling enough to justify the unqualified restriction on unapproved recordings.
In light of the NLRB’s Whole Foods decision, employers should review their employee handbooks and policies regarding workplace recordings. Such policies could lead to unfair labor practice charges, and the NLRB likely will deem unlawful any blanket prohibitions of workplace recordings that lack compelling and specific justification. Employers that have policies restricting workplace recordings and wish to retain them should contact counsel about revising the policies to withstand the NLRB’s scrutiny.
*David P. Frantz regularly represents and counsels employers on the National Labor Relations Act and workplace policy related issues. For more information about the Whole Foods decision or your labor and employment law needs, please contact Dave (dpf@zrlaw.com) at 216.696.4441.
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