Thursday, June 26, 2014
Supreme Court’s Noel Canning Decision “Cans” Unconstitutional NLRB Appointments – Hundreds of NLRB Decisions Null and Void
Today, the United States Supreme Court invalidated approximately 331 National Labor Relations Board (“NLRB”) decisions. In NLRB v. Noel Canning, the Supreme Court held that the President improperly appointed three NLRB Members on January 4, 2012. The Court’s determination invalidated hundreds of NLRB decisions because the NLRB improperly exercised its powers between January 4, 2012 and August 5, 2013.
The President attempted to circumvent the Senate confirmation process by invoking the Constitution’s Recess Appointment Clause, which allows the President to fill vacancies during Senate recesses. Between December 17, 2011 and January 23, 2012, the Senate only held twice-weekly pro forma sessions, where it conducted no business, including one session on January 3 and another on January 6. When the President appointed three NLRB members on January 4, he created a quorum (at least 3 of 5 Board members) for the NLRB. Without proper appointments, the NLRB lacked a quorum until August 5, 2013, and any intervening decisions were invalid. The Supreme Court determined that: (1) the Senate was in session during those pro forma sessions and (2) recesses of less than 10 days are presumptively too short under the Recess Appointment Clause. The President lacked the authority to make appointments during the three-day recess.
The 331 invalid decisions include some important ones, such as:
(1) Costco Wholesale Corp, which invalidated an employer policy prohibiting employees from making social media statements that could damage the company or other employees’ reputations;
(2) WKYC-TV, Inc., requiring contract dues deduction provisions to continue after a collective bargaining agreement expires; and
(3) Alan Ritchey, Inc., prohibiting an employer from enforcing discretionary discipline on employees of a newly-certified union without giving notice and an offer to bargain. While the decisions will likely not change due to the Board’s current make-up, all 331 decisions now hang in the balance.
The Supreme Court’s ruling also jeopardizes decisions and actions by other recess appointments, including NLRB Member Becker and potentially even federal court judges.
Recent filibuster changes, however, blunt the impact of this decision. All NLRB appointments now likely require approval of 51 members of the Senate.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about the Noel Canning decision or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
Thursday, June 19, 2014
EMPLOYMENT LAW QUARTERLY | Summer 2014, Volume XVI, Issue ii
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When an employee receives holiday and vacation pay, should that count towards the Family and Medical Leave Act’s 1,250 “hours of service” eligibility requirement? The U.S. Court of Appeals for the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, doesn’t think so. In Saulsberry v. Federal Express Corp., the Sixth Circuit concluded that only the hours an employee actually works count towards the 1,250-hour eligibility requirement. 2014 U.S. App. LEXIS 819 (6th Cir.).
The employee in Saulsberry requested FMLA leave for vertigo. His employer denied the request because he “had not met the FMLA’s 1,250-hours-worked-requirement.” The FMLA defines an “eligible employee” as “an employee who has been employed . . . for at least 12 months by the employer . . . and . . . for at least 1,250 hours of service . . . during the previous 12-month period.” 29 U.S.C. §2611(2)(A).
Here, the employee met the 12-month tenure requirement but did not also meet the 1,250 “hours of service” within the previous year requirement. The Sixth Circuit reasoned that the employee had to prove “he actually worked 1,250 hours.” He argued he met this requirement by pointing to an employee report that stated he “put in” 1,257 hours within the year. However, the report included two different hours totals on subsequent lines. One line listed the total hours paid and the following line included an hours worked total. An employer representative stated the employer records demonstrated that the employee worked 1,136 hours during the preceding 12 months. The court carefully considered the distinction between the hours the employee actually worked and the hours for which he was paid. The employee admitted the total hours paid included vacation and holiday pay he did not actually work. In addition, the employee stated he believed his employer kept an accurate account and record of his hours worked. Since the employee did not work the requisite 1,250 hours, the court held the employee was not entitled to FMLA leave and upheld dismissal of his FMLA claim.
This case serves as an excellent reminder that hours worked and not hours paid determine an employee’s eligibility for FMLA leave. Employers should keep detailed and accurate records of hours worked, as compared to hours paid.
*Patrick M. Watts, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor & employment law and has extensive experience dealing with the FMLA. If you have any questions about the FMLA’s requirements, standards, or application, please contact Patrick (pmw@zrlaw.com) at 216.696.4441.
To compensate or not to compensate, that is the question for “donning and doffing” clothing and gear prior to and after work. Truth be told, Shakespeare’s version was a much easier question to resolve. The U.S. Supreme Court’s decision in Sandifer v. United States Steel Corp. sheds light on this issue that has troubled employers since the enactment of the Fair Labor Standards Act of 1938 (FLSA). 134 S. Ct. 870 (2014). The issue before the Court was whether “donning and doffing” certain protective gear was compensable pursuant to the FLSA. The 12 items that were in question: flame-retardant jacket, pants, hood, hardhat, snood (hood that covers neck and shoulder area), wristlets (detached shirtsleeves), work gloves, leggings, metatarsal (steel-toed) boots, safety glasses, earplugs, and a respirator. The Court found that only the safety glasses, ear plugs, and respirator were not clothes under the Act.
The distinction of whether the items were clothes was important because pursuant to Section 203(o) of the FLSA, non-compensable time includes “time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement.” 29 U.S.C. § 203(o). The collective bargaining agreement at issue did just that. The Court determined that 9 of the 12 items were subject to exclusion because they “cover the body and are commonly regarded as articles of dress.” The Court found that the parties could collectively bargain away compensation with respect to these items.
The remaining three items were compensable, and per the collective bargaining agreement, the employer could not exclude them; however, the time spent putting on these “non-clothes” was not the majority of time spent “donning and doffing” gear. Therefore, the employer did not need to compensate for this time. Conversely, if the majority of the time is spent “donning or doffing” non-clothes, the time spent “donning or doffing” clothes becomes compensable.
Clearly, employers should ensure that employees are paid for all time worked. As a result, employers must fully understand what constitutes compensable time under the FLSA.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience counseling employers on state and federal wage and hour laws. For more information about “donning and doffing” or the FLSA, please contact Michele (mlj@zrlaw.com) at 216.696.4441.
The EEOC recently flexed its statutory muscle by suing CVS for allegedly interfering with its employees’ access to the EEOC. According to the lawsuit, the company’s separation agreement interfered with employees’ right to communicate with, participate in proceedings conducted by, and file charges with the EEOC. Since these restrictions allegedly violate Section 707 of Title VII of The Civil Rights Act of 1964, the EEOC was able to seek immediate relief through a federal lawsuit. Section 707 prohibits employers from "engag[ing] in a pattern or practice of resistance to the full enjoyment" of any rights Title VII secures.
In the complaint, the EEOC claimed the following provisions in the separation agreement created a “pattern or practice of resistance:”
In filing its complaint, the EEOC touted that its most-recent “Strategic Enforcement Plan” identified “preserving access to the legal system” as a top priority. On April 30, 2014, the EEOC again demonstrated its commitment to this priority by suing CollegeAmerica based on its separation agreement. Similar to CVS, CollegeAmerica included the following in its severance agreements: 1) a non-disparagement provision; 2) an agreement not to file complaints against the employer; 3) an agreement not to assist others in claims against the employer; and 4) a release of all claims. The EEOC, in part, based its lawsuit on the employer’s demand that one former employee return her severance pay for allegedly violating the non-disparagement clause. In addition, the employer sued the former employee for filing an EEOC charge.
These lawsuits demonstrate that the EEOC likely will continue to pursue these types of claims. Companies should review their employee separation and severance agreements in light of these recent lawsuits filed by the EEOC.
*Ami J. Patel, practices in all areas of labor and employment law. If you have questions about your severance or separation agreements, please contact Ami (ajp@zrlaw.com) at 216.696.4441.
The issue of a fair minimum wage has been a popular one in headlines and political debates in the last year or so, as cities, states, and the federal government address whether or not to raise it. With less media attention, another wage issue has been gaining momentum among communities: paid sick days. On April 1, 2014, 200,000 New Yorkers became eligible for paid sick days when the Earned Sick Time Act took effect. Generally, the act requires all businesses with five or more employees to provide 40 hours of paid sick leave to employees who work more than 80 hours in a calendar year. The law also requires employers of fewer than five employees to provide 40 hours of unpaid sick leave. The list of family members for whom an employee may use paid sick leave includes children, spouses, parents, grandparents, grandchildren, and siblings.
As goes New York City, so goes the rest of the country? Yes and no. Like with minimum wage, cities and states are taking the lead on whether employers must provide paid sick days. While no federal law requires employers to provide paid sick leave, the Family and Medical Leave Act generally requires employers to provide unpaid sick leave. Connecticut is the only state that requires employers to offer paid sick days to employees, but it may not be the only state for long. California has a bill pending in the state legislature that would offer one paid sick day for every 30 days worked. Several cities, including Seattle, San Francisco, Washington, D.C., Portland, Newark, and Jersey City have enacted paid sick day laws for their citizens. Of course, these measures are not without opposition. Eleven states (Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, Tennessee, and Wisconsin) have passed legislation making it illegal for cities or municipalities to enact paid sick leave laws.
If you are an employer, you may be wondering if your company’s sick leave policy is compliant and whether Ohio is contemplating similar steps. Currently, Ohio does not mandate paid sick leave, and none of the cities in the state have enacted ordinances requiring it. In 2008, the Ohio Healthy Families Act, which would have required employers with 25 or more employees to provide seven days per year of paid sick leave, was removed from the ballot. The main supporter, Service Employees International Union, withdrew the measure in order to focus on a federal paid sick leave law that never passed. No laws mandating paid sick leave are pending in the Ohio state legislature or any of its major cities, but if the national trend continues, the issue will surely arise soon.
*Sarah K. Ott practices in all areas of labor and employment law. For more information about paid sick leave laws, please contact Sarah (sko@zrlaw.com) at 216.696.4441.
In 1978 the first human was born after being conceived by in vitro fertilization (IVF). That same year, Congress amended Title VII of the Civil Rights Act of 1964 (Title VII) to prohibit discrimination based on pregnancy. This amendment, known as the Pregnancy Discrimination Act (PDA), protects pregnant women from employers’ discriminatory actions including refusals to hire and discharges. The scope of the PDA is unclear when applied to women utilizing assisted reproductive technology that are not yet pregnant. Regardless of the PDA’s impact, employers are not free to discriminate against these women based on their intention to become pregnant, as discrimination based on “child-bearing capacity” is illegal under Title VII.
Under the PDA, covered employers cannot discriminate against employees or applicants “on the basis of pregnancy, childbirth, or related medical conditions.” In analyzing claims under the PDA, the U.S. Court of Appeals for the Sixth Circuit generally requires the plaintiff to prove: (i) she was pregnant; (ii) she was qualified for her position; (iii) her employer took an adverse employment action against her; and (iv) there was a nexus between her pregnancy and her employer’s employment decision. Under this framework, PDA coverage would not extend to individuals undergoing assisted reproductive technology treatments that have not yet become pregnant. However, the individual may still have a viable claim under Title VII for gender discrimination based on her child-bearing capacity.
A federal district court in Michigan recently addressed the intricacies of a discrimination claim involving assisted reproductive technology. In that case, the plaintiff, who worked as a lead dental instructor, notified her supervisor she planned to become pregnant by IVF. During the plaintiff’s IVF treatment, her supervisor demoted her to the position of teaching assistant so she could sit while working because she was, in her supervisor’s words, “being pumped with so many hormones.” After taking a week of vacation leave after completing her procedure, the plaintiff miscarried upon returning to work. The next day, the plaintiff’s supervisor demoted the plaintiff, later stating she was too “focused on babies” because she intended to use IVF again and was emotionally unstable as a result of her IVF treatments. The plaintiff alleged her supervisor eventually terminated her based on her gender and pregnancy.
Relying on the Sixth Circuit’s analysis of PDA claims, the court refused to reach the conclusion that non-pregnant plaintiffs utilizing IVF can successfully bring claims under the PDA. First, the court held that the plaintiff stated a plausible claim under the PDA with respect to her demotion following her miscarriage, as she was actually pregnant and a miscarriage is a pregnancy-related condition. With respect to the plaintiff’s termination, which she alleged was based on her intention to become pregnant again, the court analyzed the claim not as a PDA claim, but rather as a Title VII gender discrimination claim. In doing so, the court recognized child-bearing capacity is a solely female characteristic, and therefore, discrimination based on child-bearing capacity is the very type of gender-based discrimination Title VII prohibits.
Employers should be cautious when making employment decisions that affect employees who express their intent to become pregnant or who utilize assisted reproductive technology. Even though employees utilizing assisted reproductive technology may not yet be pregnant, they are still protected from discriminatory actions directed at their attempts to become pregnant. While courts may be reluctant to analyze such claims under the PDA, employees who utilize assisted reproductive technology might state a claim under Title VII.
*Drew C. Piersall practices in the firm's Columbus office. He has extensive experience counseling employers on Title VII and the PDA. For more information about these topics or any other labor and employment need, please contact Drew (dcp@zrlaw.com) at 216.696.4441.
Consider the following scenario: an employer terminates an employee for just cause. The employee subsequently files for unemployment compensation and the employer challenges the application. The case goes to hearing where the hearing officer concludes that the employer terminated the employment of the employee for just cause. Unhappy with the result, the employee sues the employer in federal court. Can the federal court consider evidence and determinations made during the unemployment compensation process? One Alabama federal court recently answered that question with a resounding yes.
In Franks v. Indian Rivers Medical Health Ctr., the district court judge dismissed a former employee's Family and Medical Leave Act (FMLA) lawsuit based on the "collateral estoppel" doctrine, which generally provides that when a valid and final judgment determines an issue, the same parties cannot litigate that issue again. 2014 U.S. Dist LEXIS 15544 (N.D. Ala. Feb. 7, 2014). The Franks judge concluded that since the Alabama unemployment commission already determined the employer terminated its employee for dishonesty, the employee’s subsequent FMLA claim also failed. Although the Franks judge ruled in the employer’s favor, the decision highlights the potential pitfalls of challenging a former employee’s request for unemployment compensation. Evidence submitted, testimony introduced, and even a hearing officer’s decision itself may be utilized in subsequent litigation where the stakes are typically higher.
Ohio Revised Code §4141.21 prohibits evidence submitted during the unemployment compensation process from admission in any court proceeding. Nonetheless, federal courts in Ohio have concluded that evidence submitted in the unemployment compensation process is "not absolutely privileged and should not be stricken." Klaus v. Hilb, Rogal & Hamilton Co. of Ohio, 437 F. Supp. 2d 706 (S.D. Ohio 2006). For example, the Klaus court admitted the employer's unemployment compensation statements in a later gender discrimination lawsuit. The employer initially had stated it terminated the former employee for "lack of production." However, the employer later stated it terminated the employee because the company was "winding up a line of business." Finding these statements at odds, the court commented that maintaining the O.R.C. §4141.21 privilege would enable parties to hide information in the unemployment compensation process. Thus, Ohio employers should be careful about what evidence, testimony, and information they submit when challenging a request for unemployment compensation.
So, how should an employer approach the unemployment compensation process when it anticipates future litigation? The safest bet is to involve counsel early. To the extent an employer challenges a request for unemployment compensation, it is imperative the employer has a clear understanding of what led to the claimant’s separation and provides accurate information. An employer never wants to be in a position in which they are trying to explain away earlier inaccurate submissions.
*David P. Frantz practices in all areas of labor and employment law. If you have questions about the unemployment compensation process, please contact David (dpf@zrlaw.com) at 216.696.4441.
Under the Family and Medical Leave Act (FMLA), employees are entitled to return to their same job or an equivalent position after taking leave. As recently demonstrated by a federal court in Arizona, the degree of equivalence under the FMLA can be construed strictly against an employer.
Under the FMLA, covered employers generally must provide eligible employees with up to 12 weeks of unpaid leave for personal medical reasons or to tend to the medical needs of a family member. In order to ensure that employees are not punished for taking this leave, the FMLA requires employers to reinstate employees returning from leave to either: (1) the position the employee held before taking leave; or (2) a different position that is equivalent in benefits, pay, and conditions of employment. Employers must use caution when assigning a returning employee to a position different from the one the employee held before taking leave.
In order to comply with the “equivalent position” requirement, identical job title alone will not likely suffice, at least according to a federal court in Arizona. Prior to taking FMLA leave, an employee of a collection agency worked as a collector on an account for a major bank. In that position, she received a 35% commission on collections. After returning from leave, her employer assigned her to another account collecting for credit card companies. She only received 28% commission in her new assignment, but her employer argued her new position provided her an opportunity to earn more due to a higher rate of collection on the credit card accounts. Despite the fact that the employee was a “collector” both before and after her leave, a federal district court in Arizona held she had presented a triable claim under the FMLA based upon whether the employer assigned her to an “equivalent” job.
Upon an employee’s return from FMLA leave, employers often are faced with limited options regarding job placement. The most risk-adverse approach is to place the returning employee into the exact position the employee held before taking leave, without altering any conditions of the position (e.g., wages, benefits, etc.). However, this approach may not be possible in all situations. As an alternative, the employer may place a returning employee into an equivalent position but should proceed cautiously when doing so and ensure the position is equivalent in benefits, pay, and other employment conditions.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law and the head of the firm's labor and employment group, has extensive experience counseling employers on FMLA compliance issues. For more information about the FMLA or any other labor and employment need, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
Sarah's practice encompasses all areas of labor and employment law, including employment discrimination, legal compliance, and labor relations. As a student at The Ohio State University Moritz College of Law, Sarah won an award for excellence in legal negotiations. Prior to joining Zashin & Rich, Sarah practiced in the area of general litigation with a Cleveland-area solo practitioner. While in law school, she interned for two judges in the Southern District of Ohio and at the Ohio Environmental Protection Agency.
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- Fun Fact: Holiday and Vacation Time Does Not Count as Hours Worked Under the FMLA
- Donning and Doffing: To Compensate or Not To Compensate
- Say What? EEOC Takes Issue with CVS's Separation Agreement Language
- Paid Sick Days: Are Employers Facing an Epidemic?
- Implications of Assisted Reproductive Technology on Pregnancy and Gender Discrimination
- You Can't Use That! Right? Wrong. Use of Unemployment Hearing Evidence in Subsequent Litigation
- Right to Return: Equivalent Positions After FMLA Leave
- Z&R SHORTS
Fun Fact: Holiday and Vacation Time Does Not Count as Hours Worked Under the FMLA
By Patrick M. Watts*When an employee receives holiday and vacation pay, should that count towards the Family and Medical Leave Act’s 1,250 “hours of service” eligibility requirement? The U.S. Court of Appeals for the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, doesn’t think so. In Saulsberry v. Federal Express Corp., the Sixth Circuit concluded that only the hours an employee actually works count towards the 1,250-hour eligibility requirement. 2014 U.S. App. LEXIS 819 (6th Cir.).
The employee in Saulsberry requested FMLA leave for vertigo. His employer denied the request because he “had not met the FMLA’s 1,250-hours-worked-requirement.” The FMLA defines an “eligible employee” as “an employee who has been employed . . . for at least 12 months by the employer . . . and . . . for at least 1,250 hours of service . . . during the previous 12-month period.” 29 U.S.C. §2611(2)(A).
Here, the employee met the 12-month tenure requirement but did not also meet the 1,250 “hours of service” within the previous year requirement. The Sixth Circuit reasoned that the employee had to prove “he actually worked 1,250 hours.” He argued he met this requirement by pointing to an employee report that stated he “put in” 1,257 hours within the year. However, the report included two different hours totals on subsequent lines. One line listed the total hours paid and the following line included an hours worked total. An employer representative stated the employer records demonstrated that the employee worked 1,136 hours during the preceding 12 months. The court carefully considered the distinction between the hours the employee actually worked and the hours for which he was paid. The employee admitted the total hours paid included vacation and holiday pay he did not actually work. In addition, the employee stated he believed his employer kept an accurate account and record of his hours worked. Since the employee did not work the requisite 1,250 hours, the court held the employee was not entitled to FMLA leave and upheld dismissal of his FMLA claim.
This case serves as an excellent reminder that hours worked and not hours paid determine an employee’s eligibility for FMLA leave. Employers should keep detailed and accurate records of hours worked, as compared to hours paid.
*Patrick M. Watts, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor & employment law and has extensive experience dealing with the FMLA. If you have any questions about the FMLA’s requirements, standards, or application, please contact Patrick (pmw@zrlaw.com) at 216.696.4441.
Donning and Doffing: To Compensate or Not To Compensate
By Michele L. Jakubs*To compensate or not to compensate, that is the question for “donning and doffing” clothing and gear prior to and after work. Truth be told, Shakespeare’s version was a much easier question to resolve. The U.S. Supreme Court’s decision in Sandifer v. United States Steel Corp. sheds light on this issue that has troubled employers since the enactment of the Fair Labor Standards Act of 1938 (FLSA). 134 S. Ct. 870 (2014). The issue before the Court was whether “donning and doffing” certain protective gear was compensable pursuant to the FLSA. The 12 items that were in question: flame-retardant jacket, pants, hood, hardhat, snood (hood that covers neck and shoulder area), wristlets (detached shirtsleeves), work gloves, leggings, metatarsal (steel-toed) boots, safety glasses, earplugs, and a respirator. The Court found that only the safety glasses, ear plugs, and respirator were not clothes under the Act.
The distinction of whether the items were clothes was important because pursuant to Section 203(o) of the FLSA, non-compensable time includes “time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement.” 29 U.S.C. § 203(o). The collective bargaining agreement at issue did just that. The Court determined that 9 of the 12 items were subject to exclusion because they “cover the body and are commonly regarded as articles of dress.” The Court found that the parties could collectively bargain away compensation with respect to these items.
The remaining three items were compensable, and per the collective bargaining agreement, the employer could not exclude them; however, the time spent putting on these “non-clothes” was not the majority of time spent “donning and doffing” gear. Therefore, the employer did not need to compensate for this time. Conversely, if the majority of the time is spent “donning or doffing” non-clothes, the time spent “donning or doffing” clothes becomes compensable.
Clearly, employers should ensure that employees are paid for all time worked. As a result, employers must fully understand what constitutes compensable time under the FLSA.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience counseling employers on state and federal wage and hour laws. For more information about “donning and doffing” or the FLSA, please contact Michele (mlj@zrlaw.com) at 216.696.4441.
Say What? EEOC Takes Issue with CVS's Separation Agreement Language
By Ami J. Patel*The EEOC recently flexed its statutory muscle by suing CVS for allegedly interfering with its employees’ access to the EEOC. According to the lawsuit, the company’s separation agreement interfered with employees’ right to communicate with, participate in proceedings conducted by, and file charges with the EEOC. Since these restrictions allegedly violate Section 707 of Title VII of The Civil Rights Act of 1964, the EEOC was able to seek immediate relief through a federal lawsuit. Section 707 prohibits employers from "engag[ing] in a pattern or practice of resistance to the full enjoyment" of any rights Title VII secures.
In the complaint, the EEOC claimed the following provisions in the separation agreement created a “pattern or practice of resistance:”
- Cooperation provision: requires employees to “promptly notify” the company’s general counsel if the employee receives an inquiry related to any “civil, criminal, or administrative investigation.”
- Non-Disparagement provision: prevents employees from making statements that disparage the company.
- Non-Disclosure and Confidential Information provision: prohibits employees from disclosing confidential information without express authorization from the company’s HR director. Confidential information includes “information concerning the Corporation’s personnel, including . . . affirmative action plans or planning.”
- General Release of Claims provision: provides for an all-encompassing release of claims, including a release from any charges (e.g., EEOC Charge) and specifically includes “any claim of unlawful discrimination of any kind.”
- No Pending Actions; Covenant Not to Sue provision: states the employee has not filed and agrees not to file any action, including a complaint (e.g., EEOC complaint), against the company.
- Breach of Employee Covenants and Injunctive Relief provision: requires the employee acknowledge that any separation agreement breach will “result in irreparable injury” to the company and requires the employee to reimburse the employer for reasonable attorney costs if the company obtains an injunction against the employee.
In filing its complaint, the EEOC touted that its most-recent “Strategic Enforcement Plan” identified “preserving access to the legal system” as a top priority. On April 30, 2014, the EEOC again demonstrated its commitment to this priority by suing CollegeAmerica based on its separation agreement. Similar to CVS, CollegeAmerica included the following in its severance agreements: 1) a non-disparagement provision; 2) an agreement not to file complaints against the employer; 3) an agreement not to assist others in claims against the employer; and 4) a release of all claims. The EEOC, in part, based its lawsuit on the employer’s demand that one former employee return her severance pay for allegedly violating the non-disparagement clause. In addition, the employer sued the former employee for filing an EEOC charge.
These lawsuits demonstrate that the EEOC likely will continue to pursue these types of claims. Companies should review their employee separation and severance agreements in light of these recent lawsuits filed by the EEOC.
*Ami J. Patel, practices in all areas of labor and employment law. If you have questions about your severance or separation agreements, please contact Ami (ajp@zrlaw.com) at 216.696.4441.
Paid Sick Days: Are Employers Facing an Epidemic?
By By Sarah K. Ott*The issue of a fair minimum wage has been a popular one in headlines and political debates in the last year or so, as cities, states, and the federal government address whether or not to raise it. With less media attention, another wage issue has been gaining momentum among communities: paid sick days. On April 1, 2014, 200,000 New Yorkers became eligible for paid sick days when the Earned Sick Time Act took effect. Generally, the act requires all businesses with five or more employees to provide 40 hours of paid sick leave to employees who work more than 80 hours in a calendar year. The law also requires employers of fewer than five employees to provide 40 hours of unpaid sick leave. The list of family members for whom an employee may use paid sick leave includes children, spouses, parents, grandparents, grandchildren, and siblings.
As goes New York City, so goes the rest of the country? Yes and no. Like with minimum wage, cities and states are taking the lead on whether employers must provide paid sick days. While no federal law requires employers to provide paid sick leave, the Family and Medical Leave Act generally requires employers to provide unpaid sick leave. Connecticut is the only state that requires employers to offer paid sick days to employees, but it may not be the only state for long. California has a bill pending in the state legislature that would offer one paid sick day for every 30 days worked. Several cities, including Seattle, San Francisco, Washington, D.C., Portland, Newark, and Jersey City have enacted paid sick day laws for their citizens. Of course, these measures are not without opposition. Eleven states (Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, Tennessee, and Wisconsin) have passed legislation making it illegal for cities or municipalities to enact paid sick leave laws.
If you are an employer, you may be wondering if your company’s sick leave policy is compliant and whether Ohio is contemplating similar steps. Currently, Ohio does not mandate paid sick leave, and none of the cities in the state have enacted ordinances requiring it. In 2008, the Ohio Healthy Families Act, which would have required employers with 25 or more employees to provide seven days per year of paid sick leave, was removed from the ballot. The main supporter, Service Employees International Union, withdrew the measure in order to focus on a federal paid sick leave law that never passed. No laws mandating paid sick leave are pending in the Ohio state legislature or any of its major cities, but if the national trend continues, the issue will surely arise soon.
*Sarah K. Ott practices in all areas of labor and employment law. For more information about paid sick leave laws, please contact Sarah (sko@zrlaw.com) at 216.696.4441.
Implications of Assisted Reproductive Technology on Pregnancy and Gender Discrimination
By Drew C. Piersall*In 1978 the first human was born after being conceived by in vitro fertilization (IVF). That same year, Congress amended Title VII of the Civil Rights Act of 1964 (Title VII) to prohibit discrimination based on pregnancy. This amendment, known as the Pregnancy Discrimination Act (PDA), protects pregnant women from employers’ discriminatory actions including refusals to hire and discharges. The scope of the PDA is unclear when applied to women utilizing assisted reproductive technology that are not yet pregnant. Regardless of the PDA’s impact, employers are not free to discriminate against these women based on their intention to become pregnant, as discrimination based on “child-bearing capacity” is illegal under Title VII.
Under the PDA, covered employers cannot discriminate against employees or applicants “on the basis of pregnancy, childbirth, or related medical conditions.” In analyzing claims under the PDA, the U.S. Court of Appeals for the Sixth Circuit generally requires the plaintiff to prove: (i) she was pregnant; (ii) she was qualified for her position; (iii) her employer took an adverse employment action against her; and (iv) there was a nexus between her pregnancy and her employer’s employment decision. Under this framework, PDA coverage would not extend to individuals undergoing assisted reproductive technology treatments that have not yet become pregnant. However, the individual may still have a viable claim under Title VII for gender discrimination based on her child-bearing capacity.
A federal district court in Michigan recently addressed the intricacies of a discrimination claim involving assisted reproductive technology. In that case, the plaintiff, who worked as a lead dental instructor, notified her supervisor she planned to become pregnant by IVF. During the plaintiff’s IVF treatment, her supervisor demoted her to the position of teaching assistant so she could sit while working because she was, in her supervisor’s words, “being pumped with so many hormones.” After taking a week of vacation leave after completing her procedure, the plaintiff miscarried upon returning to work. The next day, the plaintiff’s supervisor demoted the plaintiff, later stating she was too “focused on babies” because she intended to use IVF again and was emotionally unstable as a result of her IVF treatments. The plaintiff alleged her supervisor eventually terminated her based on her gender and pregnancy.
Relying on the Sixth Circuit’s analysis of PDA claims, the court refused to reach the conclusion that non-pregnant plaintiffs utilizing IVF can successfully bring claims under the PDA. First, the court held that the plaintiff stated a plausible claim under the PDA with respect to her demotion following her miscarriage, as she was actually pregnant and a miscarriage is a pregnancy-related condition. With respect to the plaintiff’s termination, which she alleged was based on her intention to become pregnant again, the court analyzed the claim not as a PDA claim, but rather as a Title VII gender discrimination claim. In doing so, the court recognized child-bearing capacity is a solely female characteristic, and therefore, discrimination based on child-bearing capacity is the very type of gender-based discrimination Title VII prohibits.
Employers should be cautious when making employment decisions that affect employees who express their intent to become pregnant or who utilize assisted reproductive technology. Even though employees utilizing assisted reproductive technology may not yet be pregnant, they are still protected from discriminatory actions directed at their attempts to become pregnant. While courts may be reluctant to analyze such claims under the PDA, employees who utilize assisted reproductive technology might state a claim under Title VII.
*Drew C. Piersall practices in the firm's Columbus office. He has extensive experience counseling employers on Title VII and the PDA. For more information about these topics or any other labor and employment need, please contact Drew (dcp@zrlaw.com) at 216.696.4441.
You Can't Use That! Right? Wrong. Use of Unemployment Hearing Evidence in Subsequent Litigation
By David P. Frantz*Consider the following scenario: an employer terminates an employee for just cause. The employee subsequently files for unemployment compensation and the employer challenges the application. The case goes to hearing where the hearing officer concludes that the employer terminated the employment of the employee for just cause. Unhappy with the result, the employee sues the employer in federal court. Can the federal court consider evidence and determinations made during the unemployment compensation process? One Alabama federal court recently answered that question with a resounding yes.
In Franks v. Indian Rivers Medical Health Ctr., the district court judge dismissed a former employee's Family and Medical Leave Act (FMLA) lawsuit based on the "collateral estoppel" doctrine, which generally provides that when a valid and final judgment determines an issue, the same parties cannot litigate that issue again. 2014 U.S. Dist LEXIS 15544 (N.D. Ala. Feb. 7, 2014). The Franks judge concluded that since the Alabama unemployment commission already determined the employer terminated its employee for dishonesty, the employee’s subsequent FMLA claim also failed. Although the Franks judge ruled in the employer’s favor, the decision highlights the potential pitfalls of challenging a former employee’s request for unemployment compensation. Evidence submitted, testimony introduced, and even a hearing officer’s decision itself may be utilized in subsequent litigation where the stakes are typically higher.
Ohio Revised Code §4141.21 prohibits evidence submitted during the unemployment compensation process from admission in any court proceeding. Nonetheless, federal courts in Ohio have concluded that evidence submitted in the unemployment compensation process is "not absolutely privileged and should not be stricken." Klaus v. Hilb, Rogal & Hamilton Co. of Ohio, 437 F. Supp. 2d 706 (S.D. Ohio 2006). For example, the Klaus court admitted the employer's unemployment compensation statements in a later gender discrimination lawsuit. The employer initially had stated it terminated the former employee for "lack of production." However, the employer later stated it terminated the employee because the company was "winding up a line of business." Finding these statements at odds, the court commented that maintaining the O.R.C. §4141.21 privilege would enable parties to hide information in the unemployment compensation process. Thus, Ohio employers should be careful about what evidence, testimony, and information they submit when challenging a request for unemployment compensation.
So, how should an employer approach the unemployment compensation process when it anticipates future litigation? The safest bet is to involve counsel early. To the extent an employer challenges a request for unemployment compensation, it is imperative the employer has a clear understanding of what led to the claimant’s separation and provides accurate information. An employer never wants to be in a position in which they are trying to explain away earlier inaccurate submissions.
*David P. Frantz practices in all areas of labor and employment law. If you have questions about the unemployment compensation process, please contact David (dpf@zrlaw.com) at 216.696.4441.
Right to Return: Equivalent Positions After FMLA Leave
By Stephen S. Zashin*Under the Family and Medical Leave Act (FMLA), employees are entitled to return to their same job or an equivalent position after taking leave. As recently demonstrated by a federal court in Arizona, the degree of equivalence under the FMLA can be construed strictly against an employer.
Under the FMLA, covered employers generally must provide eligible employees with up to 12 weeks of unpaid leave for personal medical reasons or to tend to the medical needs of a family member. In order to ensure that employees are not punished for taking this leave, the FMLA requires employers to reinstate employees returning from leave to either: (1) the position the employee held before taking leave; or (2) a different position that is equivalent in benefits, pay, and conditions of employment. Employers must use caution when assigning a returning employee to a position different from the one the employee held before taking leave.
In order to comply with the “equivalent position” requirement, identical job title alone will not likely suffice, at least according to a federal court in Arizona. Prior to taking FMLA leave, an employee of a collection agency worked as a collector on an account for a major bank. In that position, she received a 35% commission on collections. After returning from leave, her employer assigned her to another account collecting for credit card companies. She only received 28% commission in her new assignment, but her employer argued her new position provided her an opportunity to earn more due to a higher rate of collection on the credit card accounts. Despite the fact that the employee was a “collector” both before and after her leave, a federal district court in Arizona held she had presented a triable claim under the FMLA based upon whether the employer assigned her to an “equivalent” job.
Upon an employee’s return from FMLA leave, employers often are faced with limited options regarding job placement. The most risk-adverse approach is to place the returning employee into the exact position the employee held before taking leave, without altering any conditions of the position (e.g., wages, benefits, etc.). However, this approach may not be possible in all situations. As an alternative, the employer may place a returning employee into an equivalent position but should proceed cautiously when doing so and ensure the position is equivalent in benefits, pay, and other employment conditions.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law and the head of the firm's labor and employment group, has extensive experience counseling employers on FMLA compliance issues. For more information about the FMLA or any other labor and employment need, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
Z&R SHORTS
Zashin & Rich is pleased to announce the addition of Sarah K. Ott to the firm's Employment and Labor Group in its Cleveland office.
Sarah's practice encompasses all areas of labor and employment law, including employment discrimination, legal compliance, and labor relations. As a student at The Ohio State University Moritz College of Law, Sarah won an award for excellence in legal negotiations. Prior to joining Zashin & Rich, Sarah practiced in the area of general litigation with a Cleveland-area solo practitioner. While in law school, she interned for two judges in the Southern District of Ohio and at the Ohio Environmental Protection Agency.
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Wednesday, May 14, 2014
New COBRA Guidance Changes Notification Requirements
*By Patrick J. Hoban
Recently, the Department of Labor (“DOL”) released guidance, available here, that changes employee notification requirements under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). Employees covered under a group health plan are entitled to notices regarding their rights under COBRA. The new notice requirements include information regarding the Health Insurance Marketplace (“Exchanges”) under the Patient Protection and Affordable Care Act
The DOL has provided an updated model continuation coverage “general notice,” available here, and updated model continuation coverage “election notice,” available here. Covered employees and covered spouses/dependents are entitled to the general notice upon the commencement of their employment and the election notice within a short time period following a “qualifying event” (e.g., termination of employment). The DOL considers use of the model notices “to be good faith compliance with the . . . notice content requirements of COBRA,” at least until the DOL finalizes its rules with respect to the notices
The new general notice language informs employees of their potential eligibility for coverage through the Exchanges or under another group health plan (e.g., a spouse’s plan) through a “special enrollment period” as opposed to COBRA continuation coverage.
The new election notice language sets forth in bold print “You may be able to get coverage through the Health Insurance Marketplace that costs less than COBRA continuation coverage” and provides three pages of information relating to the Exchanges. In addition to describing options other than COBRA continuation coverage, the election notice advises that “it can be difficult or impossible to switch to another” option once a decision is made
Additionally, the Department of Health and Human Services (“HHS”) released a bulletin, available here, announcing a “special enrollment period” lasting through July 1, 2014 for qualified individuals to drop their COBRA coverage and enroll in a plan under an Exchange. This “special enrollment period” only applies to the federal Exchange and the HHS bulletin encourages state-based Exchanges to adopt similar enrollment periods.
Employers and plan administrators should take note of the model notices and remain alert as the notices are subject to change and may be modified as the DOL finalizes its rules. For the time being, use of the model notices constitutes good faith compliance with COBRA’s notice requirements.
*Patrick J. Hoban practices in all areas of labor and employment law. For more information about COBRA notices or any other labor and employment needs, please contact Patrick pjh@zrlaw.com) at 216.696.4441.
Recently, the Department of Labor (“DOL”) released guidance, available here, that changes employee notification requirements under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). Employees covered under a group health plan are entitled to notices regarding their rights under COBRA. The new notice requirements include information regarding the Health Insurance Marketplace (“Exchanges”) under the Patient Protection and Affordable Care Act
The DOL has provided an updated model continuation coverage “general notice,” available here, and updated model continuation coverage “election notice,” available here. Covered employees and covered spouses/dependents are entitled to the general notice upon the commencement of their employment and the election notice within a short time period following a “qualifying event” (e.g., termination of employment). The DOL considers use of the model notices “to be good faith compliance with the . . . notice content requirements of COBRA,” at least until the DOL finalizes its rules with respect to the notices
The new general notice language informs employees of their potential eligibility for coverage through the Exchanges or under another group health plan (e.g., a spouse’s plan) through a “special enrollment period” as opposed to COBRA continuation coverage.
The new election notice language sets forth in bold print “You may be able to get coverage through the Health Insurance Marketplace that costs less than COBRA continuation coverage” and provides three pages of information relating to the Exchanges. In addition to describing options other than COBRA continuation coverage, the election notice advises that “it can be difficult or impossible to switch to another” option once a decision is made
Additionally, the Department of Health and Human Services (“HHS”) released a bulletin, available here, announcing a “special enrollment period” lasting through July 1, 2014 for qualified individuals to drop their COBRA coverage and enroll in a plan under an Exchange. This “special enrollment period” only applies to the federal Exchange and the HHS bulletin encourages state-based Exchanges to adopt similar enrollment periods.
Employers and plan administrators should take note of the model notices and remain alert as the notices are subject to change and may be modified as the DOL finalizes its rules. For the time being, use of the model notices constitutes good faith compliance with COBRA’s notice requirements.
*Patrick J. Hoban practices in all areas of labor and employment law. For more information about COBRA notices or any other labor and employment needs, please contact Patrick pjh@zrlaw.com) at 216.696.4441.
Tuesday, April 8, 2014
Whether Unionized or Not, Employers Must Review Their Employee Handbooks for NLRA Issues, Before the NLRB Does it for Them
*By Patrick J. Hoban
In March 2011, a hospital issued an employee a written disciplinary warning for posting the following on Facebook: “Holy shit rock on [S!]. Way to talk about the douchebags you used to work with. I LOVE IT!!” In response, the employee in the non-union facility filed an unfair labor practice charge with the National Labor Relations Board (“NLRB”). On April 1, 2014, the NLRB upheld an administrative law judge’s decision and invalidated the employee handbook provision under which the hospital disciplined the employee. Hills & Dales General Hospital, 360 NLRB No. 70 (April 1, 2014). In another decision issued on April 2, 2014, the NLRB invalidated a handbook provision which prohibited “discourteous or inappropriate attitude or behavior to passengers, other employees, or members of the public.” First Transit, Inc, 360 NLRB No. 72 (April 2, 2014). In both decisions, the NLRB found each employer violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) for unlawfully interfering with employee rights under the NLRA. These decisions again demonstrate that employers without unions or active union organizing are subject to the NLRA and that the NLRB will parse even the clearest and most reasonable employee handbook or work rule language to find a violation.
In Hills & Dales General Hospital, the non-unionized employer disciplined the employee for the offensive Facebook posting in violation of a handbook provision requiring employees to “represent Hills & Dales in the community in a positive and professional manner in every opportunity.” According to the NLRB, employees would reasonably conclude this paragraph prevented them from making negative remarks about the hospital in public. The NLRB explained that a rule requiring employees to represent the hospital in a “positive and ethical” manner would not have run afoul of the NLRA. However, the NLRB found that the word “professional” is a “broad and flexible concept as applied to employee behavior” and its inclusion in the provision rendered it unlawful on its face (although the NLRB did not address whether the discipline itself was unlawful).
In First Transit, where there was no discipline and some facility employees were unionized, the NLRB found numerous handbook provisions prohibiting theft, “poor work habits,” and “profane or abusive language where the language used is uncivil, insulting, contemptuous, vicious, or malicious” lawful. However, the NLRB found the provision prohibiting “discourteous or inappropriate” behavior unlawfully overbroad as, the NLRB concluded, employees would reasonably conclude it prohibited them from communicating about their employment. The handbook at issue in First Transit included a “Freedom of Association” provision affirming employee rights to organize a union and the employer’s pledge not to interfere with such activity. The employer argued that this language made clear to employees that the handbook terms did not restrict NLRA rights. However, when reviewing the Freedom of Association policy, the NLRB determined its placement was neither “prominent nor proximate” to the facially unlawful rules. In short, the NLRB concluded that employees could not reasonably be expected to apply the disclaimer to every policy in the 73-page handbook.
Although in First Transit the NLRB upheld a policy prohibiting “profane or abusive” language, both decisions highlight the wide range of employee speech the NLRB considers protected under the NLRA. Specifically, First Transit invalidated the prohibition on “discourteous and inappropriate” behavior because “no wording provide[d] a context limiting the rule to legitimate business concerns such as uncooperation [sic] with supervisors.” In Hills & Dales General Hospital, the NLRB invalidated the provision that it concluded prevented employees from making “negative comments about . . . team members” because that definition included managers.
The Hills & Dales General Hospital and First Transit decisions are the latest in the NLRB’s assertion of authority as an “Editor-in-Chief” of employer policies. In 2010, the NLRB found probable cause to issue a complaint when an employer disciplined an employee for calling her supervisor a “scumbag” on Facebook. American Medical Response of Connecticut, Inc., 34-CA-12576. In an Advice Memorandum concerning the case, the NLRB’s General Council concluded that an employee calling a supervisor a “scumbag” was protected activity because the NLRB “ha[d] found more egregious name-calling protected.”
These recent NLRB decisions demonstrate that employers must carefully review employee handbooks and workplace policies with an eye toward the aggressive parsing of the NLRB. Additionally, any employer, unionized or not, can face charges based on employment policies. Finally, while most reasonable people can agree that an employee who refers to co-workers as “douchebags” or to supervisors as “scumbags” has a damaging effect on the workplace, the NLRB may find that activity protected. As a result, all employers should carefully consider these issues and consult counsel before disciplining employees for similar misconduct.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about the NLRB decision or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
In March 2011, a hospital issued an employee a written disciplinary warning for posting the following on Facebook: “Holy shit rock on [S!]. Way to talk about the douchebags you used to work with. I LOVE IT!!” In response, the employee in the non-union facility filed an unfair labor practice charge with the National Labor Relations Board (“NLRB”). On April 1, 2014, the NLRB upheld an administrative law judge’s decision and invalidated the employee handbook provision under which the hospital disciplined the employee. Hills & Dales General Hospital, 360 NLRB No. 70 (April 1, 2014). In another decision issued on April 2, 2014, the NLRB invalidated a handbook provision which prohibited “discourteous or inappropriate attitude or behavior to passengers, other employees, or members of the public.” First Transit, Inc, 360 NLRB No. 72 (April 2, 2014). In both decisions, the NLRB found each employer violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) for unlawfully interfering with employee rights under the NLRA. These decisions again demonstrate that employers without unions or active union organizing are subject to the NLRA and that the NLRB will parse even the clearest and most reasonable employee handbook or work rule language to find a violation.
In Hills & Dales General Hospital, the non-unionized employer disciplined the employee for the offensive Facebook posting in violation of a handbook provision requiring employees to “represent Hills & Dales in the community in a positive and professional manner in every opportunity.” According to the NLRB, employees would reasonably conclude this paragraph prevented them from making negative remarks about the hospital in public. The NLRB explained that a rule requiring employees to represent the hospital in a “positive and ethical” manner would not have run afoul of the NLRA. However, the NLRB found that the word “professional” is a “broad and flexible concept as applied to employee behavior” and its inclusion in the provision rendered it unlawful on its face (although the NLRB did not address whether the discipline itself was unlawful).
In First Transit, where there was no discipline and some facility employees were unionized, the NLRB found numerous handbook provisions prohibiting theft, “poor work habits,” and “profane or abusive language where the language used is uncivil, insulting, contemptuous, vicious, or malicious” lawful. However, the NLRB found the provision prohibiting “discourteous or inappropriate” behavior unlawfully overbroad as, the NLRB concluded, employees would reasonably conclude it prohibited them from communicating about their employment. The handbook at issue in First Transit included a “Freedom of Association” provision affirming employee rights to organize a union and the employer’s pledge not to interfere with such activity. The employer argued that this language made clear to employees that the handbook terms did not restrict NLRA rights. However, when reviewing the Freedom of Association policy, the NLRB determined its placement was neither “prominent nor proximate” to the facially unlawful rules. In short, the NLRB concluded that employees could not reasonably be expected to apply the disclaimer to every policy in the 73-page handbook.
Although in First Transit the NLRB upheld a policy prohibiting “profane or abusive” language, both decisions highlight the wide range of employee speech the NLRB considers protected under the NLRA. Specifically, First Transit invalidated the prohibition on “discourteous and inappropriate” behavior because “no wording provide[d] a context limiting the rule to legitimate business concerns such as uncooperation [sic] with supervisors.” In Hills & Dales General Hospital, the NLRB invalidated the provision that it concluded prevented employees from making “negative comments about . . . team members” because that definition included managers.
The Hills & Dales General Hospital and First Transit decisions are the latest in the NLRB’s assertion of authority as an “Editor-in-Chief” of employer policies. In 2010, the NLRB found probable cause to issue a complaint when an employer disciplined an employee for calling her supervisor a “scumbag” on Facebook. American Medical Response of Connecticut, Inc., 34-CA-12576. In an Advice Memorandum concerning the case, the NLRB’s General Council concluded that an employee calling a supervisor a “scumbag” was protected activity because the NLRB “ha[d] found more egregious name-calling protected.”
These recent NLRB decisions demonstrate that employers must carefully review employee handbooks and workplace policies with an eye toward the aggressive parsing of the NLRB. Additionally, any employer, unionized or not, can face charges based on employment policies. Finally, while most reasonable people can agree that an employee who refers to co-workers as “douchebags” or to supervisors as “scumbags” has a damaging effect on the workplace, the NLRB may find that activity protected. As a result, all employers should carefully consider these issues and consult counsel before disciplining employees for similar misconduct.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about the NLRB decision or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
Tuesday, March 18, 2014
Good Ideas from USCIS: Who Knew? Form I-9 Employee Info Sheet now available
*By Helena Oroz
U.S. Citizenship and Immigration Services (USCIS) recently issued a Form I-9 Employee Information Sheet. The Information Sheet is intended as an employee reference for common Form I-9 questions, such as “Which documents do I need to show my employer?” and “Can I get in trouble if I lie on the form?”
The Information Sheet is available here in English and Spanish. Compared to the instructions on the actual Form I-9 (also an improvement over the old Form I-9), the Information Sheet communicates directly to the employee through a conversational question-and-answer format.
Federal law requires every employer to complete a Form I-9, Employment Eligibility Verification, for each new employee to verify his or her identity and authorization to work in the United States. (Reminder: all employers should be using only the newest edition of Form I-9, issued March 8, 2013.)
Additional guidance from USCIS for both employees and employers is available on its “I-9 Central” web site. This guidance seems clearer, more concise, and more user-friendly as compared to previous years, and even includes instructional I-9 video vignettes that employers can show to new employees.
While employers are not obligated to provide employees with the Information Sheet or any information apart from the Form I-9 itself, doing so may help both employers and employees by saving time and avoiding misunderstandings with respect to common I-9 questions. The chances of employees reading this one-pager over a nine-page Form I-9 are, mathematically speaking, quite good. It may not answer every question or lead to perfect communication in the workplace, but we think it’s a good start and a good idea.
*Helena Oroz practices in all areas of employment law and has extensive experience with Form I-9 compliance and auditing. For more information about the Form I-9 Information Sheet or other I-9 questions, please contact Helena at hot@zrlaw.com or 216.696.4441.
U.S. Citizenship and Immigration Services (USCIS) recently issued a Form I-9 Employee Information Sheet. The Information Sheet is intended as an employee reference for common Form I-9 questions, such as “Which documents do I need to show my employer?” and “Can I get in trouble if I lie on the form?”
The Information Sheet is available here in English and Spanish. Compared to the instructions on the actual Form I-9 (also an improvement over the old Form I-9), the Information Sheet communicates directly to the employee through a conversational question-and-answer format.
Federal law requires every employer to complete a Form I-9, Employment Eligibility Verification, for each new employee to verify his or her identity and authorization to work in the United States. (Reminder: all employers should be using only the newest edition of Form I-9, issued March 8, 2013.)
Additional guidance from USCIS for both employees and employers is available on its “I-9 Central” web site. This guidance seems clearer, more concise, and more user-friendly as compared to previous years, and even includes instructional I-9 video vignettes that employers can show to new employees.
While employers are not obligated to provide employees with the Information Sheet or any information apart from the Form I-9 itself, doing so may help both employers and employees by saving time and avoiding misunderstandings with respect to common I-9 questions. The chances of employees reading this one-pager over a nine-page Form I-9 are, mathematically speaking, quite good. It may not answer every question or lead to perfect communication in the workplace, but we think it’s a good start and a good idea.
*Helena Oroz practices in all areas of employment law and has extensive experience with Form I-9 compliance and auditing. For more information about the Form I-9 Information Sheet or other I-9 questions, please contact Helena at hot@zrlaw.com or 216.696.4441.
Monday, March 17, 2014
Employer Alert: Government Agencies Refocus On Background Checks
*By Stephen S. Zashin
On March 10, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Federal Trade Commission (“FTC”) issued joint guidance for employers and employees regarding background checks. The EEOC enforces federal employment discrimination laws, while the FTC enforces, among other things, the Fair Credit Reporting Act. The guidance documents, Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know, present a refresher on prior guidance from each agency. However, the joint effort suggests that each agency may increase its respective enforcement efforts with respect to employer use of background checks.
The employer guidance gives each agency’s tips on each of the following topics:
With respect to using background check information, the EEOC’s directives to employers focus on consistent application of standards to all applicants or employees. The guidance also cautions employers to “[t]ake special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older.”
The FTC’s contribution to the employer guidance focuses on notice obligations to applicants and employees regarding background checks, receipt of written permission from the applicant or employee prior to conducting any background check, and permitting applicants or employees an opportunity to review and explain any negative information in a background report prior to taking any adverse employment action.
Employers can expect the EEOC and FTC to coordinate their efforts in enforcing employer compliance moving forward. Employers should take this opportunity to review their existing background check procedures, particularly their use of an applicant’s or employee’s criminal and/or credit history.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about background checks or labor & employment law, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
On March 10, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Federal Trade Commission (“FTC”) issued joint guidance for employers and employees regarding background checks. The EEOC enforces federal employment discrimination laws, while the FTC enforces, among other things, the Fair Credit Reporting Act. The guidance documents, Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know, present a refresher on prior guidance from each agency. However, the joint effort suggests that each agency may increase its respective enforcement efforts with respect to employer use of background checks.
The employer guidance gives each agency’s tips on each of the following topics:
- “Before You Get Background Information”;
- “Using Background Information”;
- “Disposing of Background Information”; and
- “Further Information”.
With respect to using background check information, the EEOC’s directives to employers focus on consistent application of standards to all applicants or employees. The guidance also cautions employers to “[t]ake special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older.”
The FTC’s contribution to the employer guidance focuses on notice obligations to applicants and employees regarding background checks, receipt of written permission from the applicant or employee prior to conducting any background check, and permitting applicants or employees an opportunity to review and explain any negative information in a background report prior to taking any adverse employment action.
Employers can expect the EEOC and FTC to coordinate their efforts in enforcing employer compliance moving forward. Employers should take this opportunity to review their existing background check procedures, particularly their use of an applicant’s or employee’s criminal and/or credit history.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about background checks or labor & employment law, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
Friday, March 7, 2014
EMPLOYMENT LAW QUARTERLY | Winter 2014, Volume XVI, Issue i
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For those of us who remember the television show Seinfeld, it is hard to forget the episode where George dips his chip, takes a bite, and then dips the same chip again. Just as George broke acceptable community standards, taxpayers often feel public employees do the same when they retire and then get rehired by their same employers. In doing so, the employee receives pay and benefits in addition to retirement benefits for performing the same or similar duties. The process, known as “double dipping,” has a long history in Ohio’s public sector. Public employers like retired rehires, or “double dippers,” because they get the same experience at a generally lower personnel cost. Retired rehires like the practice because of the obvious financial benefits. The benefits of “double dipping” are not as readily apparent to the general public, and paying someone twice for the same job is not a common practice in the private sector.
In response to growing public concern, some public agencies have attempted to prohibit “double dipping.” Ohio’s Tenth District Court of Appeals recently weighed in on the matter in Warden v. Ohio Department of Natural Resources, 2014-Ohio-35 (10th Dist. Ct. App. January 9, 2014).
In Warden, the Court found that the policy prohibiting “double dipping” did not constitute a direct cause of action for age discrimination. In addition, and although the Court held that Warden failed to properly plead or litigate a disparate impact claim, the Court addressed whether the employee established that the “anti-double dipping” policy had an adverse effect on older workers. That is, while the policy was facially neutral, did it have an adverse effect on workers aged forty and older. While the Court concluded that no statistical significance existed because the sample size was too small, the Court made it clear that an employee could establish such a claim if the employee could demonstrate sufficient statistical disparities. It is noteworthy that the Ohio Supreme Court has not yet addressed whether such policies could have a disparate impact on older workers. As a result, public sector employers should carefully consider these recent developments if they are considering implementing such a policy.
*Todd M. Ellsworth practices in all areas of labor and employment law. He has extensive experience counseling public sector employers on state and federal discrimination claims.
Recently, a movement has spread across the country to “Ban the Box” on job applications. The “Box” refers to a square that, when marked, indicates an individual has a criminal background. A growing number of cities and states have prohibited this question on job applications. Proponents argue such inquiries often automatically disqualify applicants and increase chances of recidivism. For employers, “Ban the Box” laws pose an increased burden on the job application and screening process.
Hawaii became the first state to “Ban the Box” in 1998. Currently, ten states (California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Maryland, Minnesota, New Mexico, and Rhode Island) have some form of a “Ban the Box” law. Of those, five (California, Illinois, Maryland, Minnesota, and Rhode Island) passed “Ban the Box” laws or regulations in 2013 and four more have made these changes since 2009. On a more local scale, over fifty cities, including Chicago, Cleveland, and Cincinnati, have adopted some form of “Ban the Box” practices. In addition, the EEOC recommended banning the box on job applications as a best practice in a 2012 enforcement guidance. Some private employers, like Target, have removed such questions from job applications.
While many states and local governments have these measures in place, the laws or regulations and their subsequent effect on employers vary significantly. For many states, such as Connecticut and Maryland, the “Ban the Box” prohibition only applies to state employees. However, in places like Minnesota, the law applies to public and private employers alike. Even where these laws affect private employers, exceptions exist and the restrictions may be lifted at some point in the application process. Often, employers may inquire into an applicant’s criminal background after 1) the applicant was selected for an initial interview, 2) the applicant had an initial interview, or 3) the employer made a conditional job offer. In some instances, if an employer learns of an applicant’s criminal background and does not make a job offer, the employer must show the background was not tied to the employment decision.
Though “Ban the Box” efforts have grown, Ohio does not have such a law. In July 2013, Ohio legislators introduced House Bill 235 that would prohibit public and private employers from asking whether “the applicant has been convicted of or plead guilty to a felony.” However, as of January 2014, the bill had not moved past the Commerce, Labor and Technology Committee. While there is no statewide law, Lucas and Stark Counties and Cleveland, Cincinnati and Canton have “Ban the Box” measures in place. These measures only apply to public employers.
Employers need to understand what, if any, “Ban the Box” restrictions apply in the states, cities, and counties they do business. Employers also should carefully watch for “Ban the Box” developments.
*Andrew J. Cleves practices in all areas of labor and employment law. If you have questions about state or local “Ban the Box” laws and regulations or other hiring concerns, please contact Andrew (ajc@zrlaw.com) at 216.696.4441.
Criminal convictions impact much more than the sentence and possible fines associated with the underlying offense. Convictions or guilty pleas may automatically bar individuals from consideration for certain jobs. For example, Ohio Revised Code 173.38(C)(3) and (F) prevent applicants convicted of certain crimes from working in a direct-care position with a community based, long-term-care provider. The Ohio legislature recently addressed the secondary impact of a criminal conviction, dubbed a collateral sanction, when Ohio Revised Code 2953.25 went into effect in September 2012. The law created Certificates of Qualification for Employment (CQE). CQEs lift the automatic bar(s) of the collateral sanction(s) and essentially give the qualifying individual a stamp of rehabilitation. The law then directs employers to consider these applicants on a case-by-case basis.
Though CQEs may sound daunting for employers, the Ohio legislature created a rigorous application process and granted employers certain protections. To apply, an individual must first wait either six months (misdemeanors) or one year (felonies) after the individual has been released from all sanctions related to the offense. Then, the individual must submit a detailed application to the Division of Parole and Community Services. Next, the local court of common pleas may take sixty days to review, gather additional information, and approve or deny the application. To grant an application, the court must find a) the CQE would materially help the individual find a job, b) the individual substantially needs the CQE to stay out of trouble, and c) granting the CQE would not pose a safety risk. Even then, the law prohibits courts from granting CQEs in some circumstances. For example, courts cannot grant CQEs to remove license denials or suspensions for health care professionals convicted of sexual battery or improper distribution of controlled substances.
Furthermore, the law grants substantive protections to employers who hire CQE holders. For general negligence lawsuits, the employer may submit the CQE as evidence that the employer took due care in hiring or retaining the CQE holder. For negligent hiring lawsuits, Ohio Revised Code 2953.25 grants the employer immunity. The employer may invoke these protections if the employer knew the individual held the CQE at the time of hire.
Employers should be wary of retaining CQE-holders who commit additional crimes after obtaining employment though. The law limits employer protection where a CQE holder is a) hired, b) “subsequently demonstrates dangerousness or is convicted of or pleads guilty to a felony,” and c) thereafter retains employment. In those cases, the employer may be liable for retaining the employee. The party bringing the claim must prove that a decision-maker knew of the transgression and willfully retained the employee. Furthermore, once someone obtains a CQE, the law presumptively revokes it if the person later commits or pleads guilty to a felony.
Despite the fact that county courts began accepting CQE applications in March 2013, only 40 had been filed in Cuyahoga County as of mid-December 2013. Of those 40, the courts granted 17 applications, rejected three, and have not made decisions on the remaining 20. As CQEs become more prevalent, it is likely your organization may soon receive an application with one. Given their infancy, to the extent you have questions about CQEs, you should contact your legal counsel.
*David P. Frantz practices in all areas of employment law. If you have questions about CQEs or hiring policies, please contact David (dpf@zrlaw.com) at 216.696.4441.
As if there was not enough controversy surrounding the rollout of the Patient Protection and Affordable Care Act (ACA), many employees who smoke or are overweight may discover that their healthcare costs will increase. Consistent with a growing trend among employers to incentivize (or punish depending on your point of view) employees to live healthier lifestyles, ACA contains provisions allowing employers to charge employees who smoke or are overweight higher health insurance premiums.
ACA encourages employers to utilize “participatory wellness programs.” Examples of these programs include reimbursements for employee gym memberships and rewarding employees for attending health seminars or for completing health risk assessments. In addition to these participatory programs, employers can also implement “health-contingent wellness programs,” which reward employees who are able to meet specified goals or health-related requirements. These programs fall into two categories: (i) “activity-only” programs that reward employees who participate in specific activities (e.g., an exercise or diet plan); and (ii) “outcome-based” programs for employees who maintain healthy choices or goals (e.g., not smoking).
The “reward” for employees who utilize the health-contingent wellness programs can be up to 30 percent of the cost of health coverage for non-tobacco use related programs and up to 50 percent of the cost of health coverage for programs aimed at tobacco use prevention and cessation. Alternatively, employees who fail to participate in these health-contingent wellness programs can get charged up to 30 to 50 percent more for their health insurance premiums than their healthier, non-smoking coworkers.
Independent of the provisions of ACA, some employers have implemented policies under which they will not hire smokers. For example, employers have adopted non-smoking policies for new hires and require job applicants to take a urine test to detect the presence of nicotine in their systems. If an applicant tests positive for nicotine, he or she will not be hired but may re-apply after a 90-day waiting period. Employers considering a similar policy for new hires must beware as all states do not permit these policies. The following states and the District of Columbia prohibit employers from making hiring decisions or employment decisions, including demotions, suspensions, and terminations, based on whether the applicable individual smokes: California, Connecticut, Illinois, Indiana (excludes religious employers), Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Virginia (applies to state employees only), West Virginia, Wisconsin, and Wyoming. States with similar laws that do not apply to hiring decisions but prevent employers from terminating employees for tobacco use during non-work hours include: Colorado, South Dakota, and Tennessee.
With the advent of ACA and as society continues to become more health conscious in general, many employers may find themselves having to make healthcare related decisions that they have not faced in the past. ACA encourages employers to implement wellness programs that can serve both as a carrot and a stick to incentivize employees to make healthier lifestyle choices. However, employers must ensure that these wellness programs - like all employer policies and programs - are not discriminatory and do not violate laws like the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and corresponding state laws.
*Patrick J. Hoban practices in all areas of labor and employment law. He has extensive experience counseling employers on employee wellness programs and ACA. For more information about these topics or any other labor and employment needs, please contact Patrick (pjh@zrlaw.com) at 216.696.4441.
An otherwise run-of-the-mill Family and Medical Leave Act (FMLA) violation claim made to the Department of Labor’s (DOL) Wage and Hour Division by a restaurant employee recently snowballed into a full-blown DOL investigation into the restaurant chain’s employee handbook. Pursuant to an agreement with the DOL, the restaurant must change its leave policy to comply with the FMLA and pay back wages owed to the individual employee. As a result of the publicity of the investigation and agreement, the restaurant chain could face increased exposure to claims by employees alleging FMLA violations under the company’s old policies. This crackdown should serve as a lesson and warning to employers using out-of-date handbooks that a single claim can lead to a major headache and unexpected liability.
Employee handbooks implicate a number of employment related laws and can lead to investigations by and proceedings before various federal and state administrative agencies. Employee handbook compliance is complex and requires regular updating. Taking the time to regularly update a handbook is a far better alternative than the potential consequences of using a non-compliant one.
The DOL’s investigation of the restaurant chain’s employee handbook focused on its FMLA policy. Under the FMLA, eligible employees who work for covered employers are entitled to take a maximum of 12 weeks of leave in a 12 month period for specified reasons. Among other things, in order for an employee to be eligible for FMLA leave, the employee must have worked for the employer for at least 12 months. However, contrary to what the subject handbook stated, those 12 months of employment do not need to be consecutive. The policy also did not include information on the FMLA’s family military leave provisions or intermittent and reduced-schedule leave.
Employee handbooks should aid employers in avoiding or prevailing in litigation. In order to maintain an employee handbook’s usefulness and minimize liability, employers need to ensure that their employee handbooks are up-to-date and compliant with ever-changing laws and regulations. All it takes is one claim by one employee to open a can of worms that can lead to other claims and substantial costs.
*Ami J. Patel practices in all areas of labor and employment law. She has extensive experience counseling employers on FLMA compliance and handbook issues. For more information about these topics or your other labor and employment needs, please contact Ami (ajp@zrlaw.com) at 216.696.4441.
Andrew’s practice focuses on private and public sector labor relations and employment law. Prior to joining Zashin & Rich, Andrew represented public sector labor unions in Cincinnati. Andrew's experience includes advising clients in collective bargaining negotiations, contract arbitrations, and employment litigation. He has represented clients in state and federal court and before the Ohio State Employment Relations Board.
Upcoming Speaking Engagements
March 27, 2014
Stephen Zashin will present “Brainy FMLA: Advanced Instruction for FMLA Whiz Kids” at the “Administering the Family and Medical Leave Act in Ohio” seminar on March 27, 2014 at the Holiday Inn Cleveland South in Independence, Ohio. For more information, go to www.lorman.com/ID393028.
March 31, 2014
Jonathan Downes will discuss mediation at the SERB Academy on March 31, 2014. For more information contact Tammy Johnson at tjohnson@serb.state.oh.us.
April 17, 2014
Jonathan Downes will present “The Nuts and Bolts of Bargaining, Bargaining Strategies, and Media Relations” at the “Collective Bargaining for Public Safety Employees” seminar on April 17, 2014. For more information, go to www.lris.com.
April 29, 2014
Jonathan Downes will present “Update on Employment Law Matters Affecting Law Enforcement” and “Collective Bargaining and Union Issues Update” at the Ohio Association of Chiefs of Police (OACP) Chief’s Annual Conference on April 29, 2014.
April 30, 2014
Jonathan Downes will present “Employment Law Basics for Public Managers” at the Miami Valley Risk Management Association meeting on April 30, 2014, in Dayton, Ohio. For more information, go to www.mvrma.com.
May 2, 2014
Jonathan Downes will present “Legal Update” at the Ohio Association of Public Safety Directors Annual Conference on May 2, 2014, at the CCAO Conference Center in Columbus, Ohio.
May 14, 2014
Jonathan Downes will present “Employee Issues from Social Media” at the Ohio Jobs and Family Services Director’s Association Meeting on May 14, 2014.
May 21, 2014
George Crisci will present “Special Concerns when Dealing with Union Environments” at the National Business Institute’s “Employee Documentation, Discipline and Discharge” program on May 21, 2014, in Akron, Ohio.
May 21, 2014
Jonathan Downes will present “FMLA Issues and Update” and “Workplace Investigations” at the Ohio Jobs and Family Services Director’s Association Meeting on May 21, 2014 at the Hyatt Regency Columbus.
May 22, 2014
Jonathan Downes will present “Discipline of Public Employees” at the Ohio Association of Chiefs of Police (OACP) meeting on May 22, 2014, at the Reynoldsburg Police Department.
- Public Sector Alert: Tenth District Court of Appeals Lays the Groundwork for Disparate Impact Age Discrimination Claims Based On "Anti-Double Dipping" Policies
- Boxed In: What Can Employers Ask on Job Applications?
- Collateral Damage: the Effect of Criminal Convictions on Employment Applications
- Employer Provided Healthcare Insurance Costs Increasing for Smokers and Overweight Employees
- The Department of Labor’s Crackdown on Out-of-Date Employee Handbook is a Costly Reminder to Regularly Update Employee Handbooks
- Z&R Shorts
Public Sector Alert: Tenth District Court of Appeals Lays the Groundwork for Disparate Impact Age Discrimination Claims Based On "Anti-Double Dipping" Policies
By Todd M. Ellsworth*For those of us who remember the television show Seinfeld, it is hard to forget the episode where George dips his chip, takes a bite, and then dips the same chip again. Just as George broke acceptable community standards, taxpayers often feel public employees do the same when they retire and then get rehired by their same employers. In doing so, the employee receives pay and benefits in addition to retirement benefits for performing the same or similar duties. The process, known as “double dipping,” has a long history in Ohio’s public sector. Public employers like retired rehires, or “double dippers,” because they get the same experience at a generally lower personnel cost. Retired rehires like the practice because of the obvious financial benefits. The benefits of “double dipping” are not as readily apparent to the general public, and paying someone twice for the same job is not a common practice in the private sector.
In response to growing public concern, some public agencies have attempted to prohibit “double dipping.” Ohio’s Tenth District Court of Appeals recently weighed in on the matter in Warden v. Ohio Department of Natural Resources, 2014-Ohio-35 (10th Dist. Ct. App. January 9, 2014).
In Warden, the Court found that the policy prohibiting “double dipping” did not constitute a direct cause of action for age discrimination. In addition, and although the Court held that Warden failed to properly plead or litigate a disparate impact claim, the Court addressed whether the employee established that the “anti-double dipping” policy had an adverse effect on older workers. That is, while the policy was facially neutral, did it have an adverse effect on workers aged forty and older. While the Court concluded that no statistical significance existed because the sample size was too small, the Court made it clear that an employee could establish such a claim if the employee could demonstrate sufficient statistical disparities. It is noteworthy that the Ohio Supreme Court has not yet addressed whether such policies could have a disparate impact on older workers. As a result, public sector employers should carefully consider these recent developments if they are considering implementing such a policy.
*Todd M. Ellsworth practices in all areas of labor and employment law. He has extensive experience counseling public sector employers on state and federal discrimination claims.
Boxed In: What Can Employers Ask on Job Applications?
By Andrew J. Cleves*Recently, a movement has spread across the country to “Ban the Box” on job applications. The “Box” refers to a square that, when marked, indicates an individual has a criminal background. A growing number of cities and states have prohibited this question on job applications. Proponents argue such inquiries often automatically disqualify applicants and increase chances of recidivism. For employers, “Ban the Box” laws pose an increased burden on the job application and screening process.
Hawaii became the first state to “Ban the Box” in 1998. Currently, ten states (California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Maryland, Minnesota, New Mexico, and Rhode Island) have some form of a “Ban the Box” law. Of those, five (California, Illinois, Maryland, Minnesota, and Rhode Island) passed “Ban the Box” laws or regulations in 2013 and four more have made these changes since 2009. On a more local scale, over fifty cities, including Chicago, Cleveland, and Cincinnati, have adopted some form of “Ban the Box” practices. In addition, the EEOC recommended banning the box on job applications as a best practice in a 2012 enforcement guidance. Some private employers, like Target, have removed such questions from job applications.
While many states and local governments have these measures in place, the laws or regulations and their subsequent effect on employers vary significantly. For many states, such as Connecticut and Maryland, the “Ban the Box” prohibition only applies to state employees. However, in places like Minnesota, the law applies to public and private employers alike. Even where these laws affect private employers, exceptions exist and the restrictions may be lifted at some point in the application process. Often, employers may inquire into an applicant’s criminal background after 1) the applicant was selected for an initial interview, 2) the applicant had an initial interview, or 3) the employer made a conditional job offer. In some instances, if an employer learns of an applicant’s criminal background and does not make a job offer, the employer must show the background was not tied to the employment decision.
Though “Ban the Box” efforts have grown, Ohio does not have such a law. In July 2013, Ohio legislators introduced House Bill 235 that would prohibit public and private employers from asking whether “the applicant has been convicted of or plead guilty to a felony.” However, as of January 2014, the bill had not moved past the Commerce, Labor and Technology Committee. While there is no statewide law, Lucas and Stark Counties and Cleveland, Cincinnati and Canton have “Ban the Box” measures in place. These measures only apply to public employers.
Employers need to understand what, if any, “Ban the Box” restrictions apply in the states, cities, and counties they do business. Employers also should carefully watch for “Ban the Box” developments.
*Andrew J. Cleves practices in all areas of labor and employment law. If you have questions about state or local “Ban the Box” laws and regulations or other hiring concerns, please contact Andrew (ajc@zrlaw.com) at 216.696.4441.
Collateral Damage: the Effect of Criminal Convictions on Employment Applications
By David P. Frantz*Criminal convictions impact much more than the sentence and possible fines associated with the underlying offense. Convictions or guilty pleas may automatically bar individuals from consideration for certain jobs. For example, Ohio Revised Code 173.38(C)(3) and (F) prevent applicants convicted of certain crimes from working in a direct-care position with a community based, long-term-care provider. The Ohio legislature recently addressed the secondary impact of a criminal conviction, dubbed a collateral sanction, when Ohio Revised Code 2953.25 went into effect in September 2012. The law created Certificates of Qualification for Employment (CQE). CQEs lift the automatic bar(s) of the collateral sanction(s) and essentially give the qualifying individual a stamp of rehabilitation. The law then directs employers to consider these applicants on a case-by-case basis.
Though CQEs may sound daunting for employers, the Ohio legislature created a rigorous application process and granted employers certain protections. To apply, an individual must first wait either six months (misdemeanors) or one year (felonies) after the individual has been released from all sanctions related to the offense. Then, the individual must submit a detailed application to the Division of Parole and Community Services. Next, the local court of common pleas may take sixty days to review, gather additional information, and approve or deny the application. To grant an application, the court must find a) the CQE would materially help the individual find a job, b) the individual substantially needs the CQE to stay out of trouble, and c) granting the CQE would not pose a safety risk. Even then, the law prohibits courts from granting CQEs in some circumstances. For example, courts cannot grant CQEs to remove license denials or suspensions for health care professionals convicted of sexual battery or improper distribution of controlled substances.
Furthermore, the law grants substantive protections to employers who hire CQE holders. For general negligence lawsuits, the employer may submit the CQE as evidence that the employer took due care in hiring or retaining the CQE holder. For negligent hiring lawsuits, Ohio Revised Code 2953.25 grants the employer immunity. The employer may invoke these protections if the employer knew the individual held the CQE at the time of hire.
Employers should be wary of retaining CQE-holders who commit additional crimes after obtaining employment though. The law limits employer protection where a CQE holder is a) hired, b) “subsequently demonstrates dangerousness or is convicted of or pleads guilty to a felony,” and c) thereafter retains employment. In those cases, the employer may be liable for retaining the employee. The party bringing the claim must prove that a decision-maker knew of the transgression and willfully retained the employee. Furthermore, once someone obtains a CQE, the law presumptively revokes it if the person later commits or pleads guilty to a felony.
Despite the fact that county courts began accepting CQE applications in March 2013, only 40 had been filed in Cuyahoga County as of mid-December 2013. Of those 40, the courts granted 17 applications, rejected three, and have not made decisions on the remaining 20. As CQEs become more prevalent, it is likely your organization may soon receive an application with one. Given their infancy, to the extent you have questions about CQEs, you should contact your legal counsel.
*David P. Frantz practices in all areas of employment law. If you have questions about CQEs or hiring policies, please contact David (dpf@zrlaw.com) at 216.696.4441.
Employer Provided Healthcare Insurance Costs Increasing for Smokers and Overweight Employees
By Patrick J. Hoban*As if there was not enough controversy surrounding the rollout of the Patient Protection and Affordable Care Act (ACA), many employees who smoke or are overweight may discover that their healthcare costs will increase. Consistent with a growing trend among employers to incentivize (or punish depending on your point of view) employees to live healthier lifestyles, ACA contains provisions allowing employers to charge employees who smoke or are overweight higher health insurance premiums.
ACA encourages employers to utilize “participatory wellness programs.” Examples of these programs include reimbursements for employee gym memberships and rewarding employees for attending health seminars or for completing health risk assessments. In addition to these participatory programs, employers can also implement “health-contingent wellness programs,” which reward employees who are able to meet specified goals or health-related requirements. These programs fall into two categories: (i) “activity-only” programs that reward employees who participate in specific activities (e.g., an exercise or diet plan); and (ii) “outcome-based” programs for employees who maintain healthy choices or goals (e.g., not smoking).
The “reward” for employees who utilize the health-contingent wellness programs can be up to 30 percent of the cost of health coverage for non-tobacco use related programs and up to 50 percent of the cost of health coverage for programs aimed at tobacco use prevention and cessation. Alternatively, employees who fail to participate in these health-contingent wellness programs can get charged up to 30 to 50 percent more for their health insurance premiums than their healthier, non-smoking coworkers.
Independent of the provisions of ACA, some employers have implemented policies under which they will not hire smokers. For example, employers have adopted non-smoking policies for new hires and require job applicants to take a urine test to detect the presence of nicotine in their systems. If an applicant tests positive for nicotine, he or she will not be hired but may re-apply after a 90-day waiting period. Employers considering a similar policy for new hires must beware as all states do not permit these policies. The following states and the District of Columbia prohibit employers from making hiring decisions or employment decisions, including demotions, suspensions, and terminations, based on whether the applicable individual smokes: California, Connecticut, Illinois, Indiana (excludes religious employers), Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Virginia (applies to state employees only), West Virginia, Wisconsin, and Wyoming. States with similar laws that do not apply to hiring decisions but prevent employers from terminating employees for tobacco use during non-work hours include: Colorado, South Dakota, and Tennessee.
With the advent of ACA and as society continues to become more health conscious in general, many employers may find themselves having to make healthcare related decisions that they have not faced in the past. ACA encourages employers to implement wellness programs that can serve both as a carrot and a stick to incentivize employees to make healthier lifestyle choices. However, employers must ensure that these wellness programs - like all employer policies and programs - are not discriminatory and do not violate laws like the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and corresponding state laws.
*Patrick J. Hoban practices in all areas of labor and employment law. He has extensive experience counseling employers on employee wellness programs and ACA. For more information about these topics or any other labor and employment needs, please contact Patrick (pjh@zrlaw.com) at 216.696.4441.
The Department of Labor’s Crackdown on Out-of-Date Employee Handbook is a Costly Reminder to Regularly Update Employee Handbooks
By Ami J. Patel*An otherwise run-of-the-mill Family and Medical Leave Act (FMLA) violation claim made to the Department of Labor’s (DOL) Wage and Hour Division by a restaurant employee recently snowballed into a full-blown DOL investigation into the restaurant chain’s employee handbook. Pursuant to an agreement with the DOL, the restaurant must change its leave policy to comply with the FMLA and pay back wages owed to the individual employee. As a result of the publicity of the investigation and agreement, the restaurant chain could face increased exposure to claims by employees alleging FMLA violations under the company’s old policies. This crackdown should serve as a lesson and warning to employers using out-of-date handbooks that a single claim can lead to a major headache and unexpected liability.
Employee handbooks implicate a number of employment related laws and can lead to investigations by and proceedings before various federal and state administrative agencies. Employee handbook compliance is complex and requires regular updating. Taking the time to regularly update a handbook is a far better alternative than the potential consequences of using a non-compliant one.
The DOL’s investigation of the restaurant chain’s employee handbook focused on its FMLA policy. Under the FMLA, eligible employees who work for covered employers are entitled to take a maximum of 12 weeks of leave in a 12 month period for specified reasons. Among other things, in order for an employee to be eligible for FMLA leave, the employee must have worked for the employer for at least 12 months. However, contrary to what the subject handbook stated, those 12 months of employment do not need to be consecutive. The policy also did not include information on the FMLA’s family military leave provisions or intermittent and reduced-schedule leave.
Employee handbooks should aid employers in avoiding or prevailing in litigation. In order to maintain an employee handbook’s usefulness and minimize liability, employers need to ensure that their employee handbooks are up-to-date and compliant with ever-changing laws and regulations. All it takes is one claim by one employee to open a can of worms that can lead to other claims and substantial costs.
*Ami J. Patel practices in all areas of labor and employment law. She has extensive experience counseling employers on FLMA compliance and handbook issues. For more information about these topics or your other labor and employment needs, please contact Ami (ajp@zrlaw.com) at 216.696.4441.
Z&R Shorts
Zashin & Rich is pleased to announce the addition of Andrew Cleves to the firm’s Employment and Labor Group in its Cleveland office.Andrew’s practice focuses on private and public sector labor relations and employment law. Prior to joining Zashin & Rich, Andrew represented public sector labor unions in Cincinnati. Andrew's experience includes advising clients in collective bargaining negotiations, contract arbitrations, and employment litigation. He has represented clients in state and federal court and before the Ohio State Employment Relations Board.
Upcoming Speaking Engagements
March 27, 2014
Stephen Zashin will present “Brainy FMLA: Advanced Instruction for FMLA Whiz Kids” at the “Administering the Family and Medical Leave Act in Ohio” seminar on March 27, 2014 at the Holiday Inn Cleveland South in Independence, Ohio. For more information, go to www.lorman.com/ID393028.
March 31, 2014
Jonathan Downes will discuss mediation at the SERB Academy on March 31, 2014. For more information contact Tammy Johnson at tjohnson@serb.state.oh.us.
April 17, 2014
Jonathan Downes will present “The Nuts and Bolts of Bargaining, Bargaining Strategies, and Media Relations” at the “Collective Bargaining for Public Safety Employees” seminar on April 17, 2014. For more information, go to www.lris.com.
April 29, 2014
Jonathan Downes will present “Update on Employment Law Matters Affecting Law Enforcement” and “Collective Bargaining and Union Issues Update” at the Ohio Association of Chiefs of Police (OACP) Chief’s Annual Conference on April 29, 2014.
April 30, 2014
Jonathan Downes will present “Employment Law Basics for Public Managers” at the Miami Valley Risk Management Association meeting on April 30, 2014, in Dayton, Ohio. For more information, go to www.mvrma.com.
May 2, 2014
Jonathan Downes will present “Legal Update” at the Ohio Association of Public Safety Directors Annual Conference on May 2, 2014, at the CCAO Conference Center in Columbus, Ohio.
May 14, 2014
Jonathan Downes will present “Employee Issues from Social Media” at the Ohio Jobs and Family Services Director’s Association Meeting on May 14, 2014.
May 21, 2014
George Crisci will present “Special Concerns when Dealing with Union Environments” at the National Business Institute’s “Employee Documentation, Discipline and Discharge” program on May 21, 2014, in Akron, Ohio.
May 21, 2014
Jonathan Downes will present “FMLA Issues and Update” and “Workplace Investigations” at the Ohio Jobs and Family Services Director’s Association Meeting on May 21, 2014 at the Hyatt Regency Columbus.
May 22, 2014
Jonathan Downes will present “Discipline of Public Employees” at the Ohio Association of Chiefs of Police (OACP) meeting on May 22, 2014, at the Reynoldsburg Police Department.
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