Friday, June 29, 2018

EMPLOYMENT LAW QUARTERLY | Volume XX, Issue ii

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Supreme Court Rules “Fair Share” Fees Are No Longer Fair

By Jonathan J. Downes, George S. Crisci, and Scott H. DeHart*

On Wednesday, June 27, 2018, the U.S. Supreme Court handed down its highly-anticipated and historic ruling in Janus v. AFSCME Council 31. In a 5-to-4 decision, the closely-divided Court held that public employee collective bargaining agreements (“CBA”) that require non-union member employees to pay involuntary “fair share” fees are unconstitutional. Specifically, the mandatory withholding of these “fair share” fees violates the First Amendment rights of non-members of the union by compelling them to subsidize private speech on matters of substantial public concern.

Union Dues and “Fair Share” Fees.

When a majority of employees in a “bargaining unit” vote to be represented by a union, that union becomes the exclusive representative of all employees in that bargaining unit – including employees who choose not to join the union as dues-paying members.

While non-members are not required to pay union dues, the Supreme Court previously held, in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), non-members could be required to pay an “agency fee” or “fair share” fee instead. Fair share fees were typically a reduced percentage of the full union dues, and subsidized the activities that the union performed on behalf of non-members (such as collective bargaining and grievance handling). Under Abood, public employee unions were required to subtract from the fair share fees any “non-chargeable” expenses – i.e., any costs associated with union political and ideological projects – as a safeguard for employee First Amendment rights.

In the four decades since Abood, fair share fees became a common feature of public employee CBAs. Ohio was one of twenty-two states in the U.S. that allowed the mandatory deduction of fair share fees as a condition of continued employment. See Ohio Revised Code Section 4117.09(C).

However, in recent years the Supreme Court began to sharply criticize Abood as an anomaly among other First Amendment cases dealing with compelled speech. In 2015, the Supreme Court agreed to hear oral arguments in Friedrichs v. California Teachers Association, in which public employees challenged the deduction of “fair share” fees as a form of compelled subsidy of speech that violated their First Amendment rights. The Supreme Court was widely-expected to overrule Abood in Friedrichs and to strike down fair share fees as unconstitutional. Justice Antonin Scalia’s unexpected death in February 2016 left the Court evenly-divided in Friedrichs. The question of fair share fees was left for another day.

The Janus Decision.

Following President Trump’s nomination (and the Senate’s confirmation) of new Associate Justice Neil Gorsuch, that day arrived. The Supreme Court granted review in Janus v. AFSCME Council 31, a case that closely mirrored Friedrichs. Plaintiff Mark Janus, an Illinois state employee, challenged the state’s deduction of “fair share” fees as a violation of his First Amendment rights. Janus argued that he disagreed with many positions taken by his union, and that everything a public employee union does is inherently political. Specifically, Janus argued that union wage and benefits demands were damaging to Illinois’ finances.

In the ruling announced on June 27, 2018, the Court’s majority agreed with Janus. Justice Alito wrote the Court’s opinion, in which he explained the majority’s rationale for overruling Abood and concluded that deducting compulsory “fair share” fees to pay for union collective bargaining activities necessarily compels public employees to subsidize private political speech, a clear violation of the employees’ First Amendment rights.

The Court also explained that an employee’s authorization to pay union dues or fair share fees is a waiver of his or her First Amendment rights, and such a waiver must be freely given. Without an employee’s clear and affirmative consent, it is unconstitutional for employers to automatically deduct dues or fair share fees and to require employees to ‘opt out.’ Rather, under Janus an employee must affirmatively ‘opt in’ before any such payments could be withheld by the employer.

The Court’s decision will have an immediate and lasting effect on public employee collective bargaining across the U.S. Twenty-two states, including Ohio, permitted the deduction of public sector “fair share” fees. In Ohio, the mandatory fair share provisions in R.C. 4117.09(C) are now unconstitutional because of Janus. Many public employee CBAs also contain fair share language that the Janus decision has rendered unenforceable. Employers should closely review the “fair share” and “severability” provisions in their CBAs, cease involuntary fair share fee deductions, and assess any obligations they have to meet and discuss with unions regarding Janus.

Several public-sector unions have indicated that they will propose new CBA language to automatically reinstate “fair share” fees in the event the Supreme Court ever reverses Janus. Others have explored the possibility of charging non-members a fee for certain services actually rendered by the union (i.e., grievance handling). State legislatures also may revisit the statutory responsibilities of unions to represent employees who choose not to become dues-paying members. The long-term impact of Janus on labor-management relations, union membership, and collective bargaining remains to be seen.

Employers should collaborate closely with labor counsel to address the short- and long-term impact of Janus. Public agencies should act promptly – but cautiously – as they halt “fair share” payroll deductions for non-union employees. Employers should also carefully manage their communications with employees to avoid committing unfair labor practices.

*Jonathan J. Downes, George S. Crisci, and Scott H. DeHart practice in Zashin & Rich’s labor and employment groups. For more information about the Janus decision or for your other labor and employment needs, please contact Jonathan (jjd@zrlaw.com) and Scott (shd@zrlaw.com) at the firm’s Columbus office at 614.224.4411 or George (gsc@zrlaw.com) at the firm’s Cleveland office at 216.696.4441.


Whistle While You Work: Supreme Court Adopts Narrow Definition of “Whistleblower” Under The Dodd-Frank Act

By Scott Coghlan*

The U.S. Supreme Court recently held that employees protected from retaliation by employers under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) must provide information or make reports of potential security-law violations directly to the Securities Exchange Commission (“SEC”). See Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767 (2018). In so holding, the Court narrowed the scope of potential plaintiffs under Dodd-Frank, excluding the broader category of individuals who report security-law concerns internally within their company but not to the SEC. While publicly-traded companies may welcome the decision as one that reduces the number of potential lawsuits, the decision also may have the effect of incentivizing employees not to raise security-law concerns internally and, instead, to go directly to the SEC to ensure protection under Dodd-Frank.

In the wake of the 2008 financial crisis, Congress enacted Dodd-Frank as a measure to “improv[e] accountability and transparency in the financial system.” Under Dodd-Frank, employers are prohibited from retaliating against “whistleblowers,” defined as individuals who provide “information relating to a violation of the securities laws to the [SEC].” See 15 U.S.C. §78u-6(a)(6). Whistleblowers who prevail on their claims are entitled to double backpay with interest and additional damages, including litigation costs and attorneys’ fees.

In Digital Realty, the plaintiff worked as a vice president for a real estate investment trust. The plaintiff alleged his employer discharged him shortly after he notified senior management that he believed the company had violated securities laws. He did not, however, report any suspected violations to the SEC. After his discharge, the plaintiff filed suit alleging a whistleblower claim under Dodd-Frank. In response, the company moved for dismissal on the grounds that the plaintiff did not qualify as a whistleblower because he did not make a report to the SEC. The court denied the motion, and the employer appealed that decision to the U.S. Court of Appeals for the Ninth Circuit.

On appeal, the Ninth Circuit affirmed the lower court’s decision. In doing so, the court acknowledged that the language of Dodd-Frank defined a “whistleblower” as someone who provides information to the SEC. Nonetheless, the Ninth Circuit concluded it would be absurd to protect employees who make internal complaints only if they also reported to the SEC, as the court believed this dual reporting would be rare. The Ninth Circuit’s decision only added to the uncertainty regarding the scope of Dodd-Frank’s anti-retaliation protection, as the Fifth and Second Circuits previously interpreted Dodd-Frank differently. The Supreme Court granted certiorari in Digital Realty to resolve the split between the Circuit Courts.

In Digital Realty, the Supreme Court justices unanimously agreed that, in order to qualify for Dodd-Frank's anti-retaliation protections, purported whistleblowers must actually provide information or reports of suspected security-law violations to the SEC. In reaching its conclusion, the Supreme Court noted that the statute was “unequivocal” in limiting the definition of whistleblower to those individuals who provide information to the SEC. In addition, the Court noted that this narrow definition of whistleblower was consistent with Congress’ purpose and design in enacting Dodd-Frank. Specifically, the “core objective” of Dodd-Frank’s whistleblower provisions was “to motivate people who know of securities law violations to tell the SEC.” The Court also noted that whistleblowers, who raise concerns internally but not to the SEC, may pursue retaliation claims under the Sarbanes Oxley Act of 2002 (“SOX”), provided that they file an administrative complaint within SOX’s 180-day deadline.

In sum, employees of publicly-traded companies who raise concerns of potential security-law violations internally, but not to the SEC, will not receive whistleblower protections under Dodd-Frank. While the Digital Realty decision limits the scope of potential plaintiffs under Dodd-Frank, publicly-traded employers should still note that whistleblowers may have recourse under SOX and state laws. Furthermore, the Digital Realty decision may have the undesirable consequence of persuading employees to go directly to the SEC to gain protection under Dodd-Frank, as opposed to taking advantage of internal reporting mechanisms set up by their employers.

*Scott Coghlan routinely advises and defends employers in whistleblower cases, including those brought under Dodd-Frank and SOX. For more information about the Digital Realty decision or other labor and employment issues, please contact Scott (sc@zrlaw.com) at 216.696.4441.


Return to Form: DOL Resurrects and Issues Wage and Hour Opinion Letters

By Jessi L. Ziska*

On January 8, 2018, the U.S. Department of Labor (“DOL”) reissued 17 advisory opinion letters that provide guidance on a wide range of issues under the Fair Labor Standards Act (“FLSA”). The DOL’s Wage and Hour Division (“WHD”) originally issued these opinion letters in January 2009 during the final days of the Bush administration by the former acting WHD Administrator. In March 2009, however, the WHD withdrew them after former President Barack Obama took office. Subsequently, the Obama administration stopped issuing opinion letters altogether. Under the Trump administration, the DOL announced it will return to the practice of issuing guidance for employers by way of opinion letters. In addition to reissuing the previously-withdrawn letters, on April 12, 2018, the DOL issued its first new opinion letters in nearly a decade.

An opinion letter is an official guidance document addressing how a particular law applies in specific circumstances. For instance, an opinion letter would allow the DOL to formally address an employer’s specific compliance concern pertaining to the FLSA. These letters also serve as important guidance for other employers faced with similar circumstances and compliance concerns.

The 17 reissued letters cover a wide variety of FLSA topics and provide clarity to the DOL's current position on numerous issues. Eleven of the reissued opinion letters relate to Section 13(a)(1) of the FLSA, a provision that exempts any worker employed in a bona fide administrative capacity from the FLSA’s minimum wage and overtime requirements. For example, the letters address questions about the exempt status of the following jobs positions:
  • Project superintendents employed by a commercial construction company (FLSA2018-4);
  • Community members who coach athletic teams for public schools (FLSA2018-6);
  • Client service managers of an insurance company (FLSA2018-8); and
  • Consultants, clinical coordinators, and business development mangers of a healthcare placement company (FLSA2018-12).
Two of the opinion letters relating to FLSA Section 13(a)(1) — FLSA2018-7 and FLSA2018-14 — respond to employers’ questions about the “salary basis” test to determine exempt status. Other topics addressed include ambulance personnel on-call time and hours worked (FLSA2018-1), regular rate calculation for fire fighters and alarm operators (FLSA2018-15), and job bonuses relating to FLSA Section 7(e) (FLSA2018-9 and FLSA2018-11).

The two new FLSA-related opinion letters address the compensability of travel time and rest breaks. In one letter (FLSA2018-18), the DOL addressed whether required travel on weekends or to various job sites constitutes compensable “worktime” under various circumstances. In the second letter (FLSA2018-19), the DOL discussed whether 15-minute rest breaks required every hour by an employee’s serious health condition can be considered unpaid leave under the Family Medical Leave Act (in short, yes). The DOL issued a third letter (CCPA2018-1NA) addressing wage garnishment in relation to the Consumer Credit Protection Act. In addition to the letters, the DOL also issued a “fact sheet” regarding overtime for workers in higher education.

DOL opinion letters are a useful tool for employers seeking to avoid liability. The Portal-to-Portal Act of 1947 amended the FLSA to provide an employer with an affirmative defense that protects it from liability when the employer takes a certain action in reliance upon any written regulation, ruling, or interpretation by the WHD – even if the interpretation later turned out to be wrong. However, for an employer to be protected by this “good-faith reliance” defense, it must have acted in good faith and in conformity with the opinion letter.

Employers should be particularly cautious with the “conformity” prong of this defense. Recently, in November 2017, the U.S. Court of Appeals for the Sixth Circuit, which covers Ohio, Michigan, Tennessee, and Kentucky, decided that an employer could not avail itself of the good-faith reliance defense because the facts underlying the employer’s case were not in conformity with the facts in the opinion letter the employer relied upon. See Perry v. Randstad Gen. Partner (US) LLC, 876 F.3d 191 (6th Cir. 2017). The Sixth Circuit stated that the opinion letter did not provide "a clear answer to the particular situation" and, therefore, the employer did not receive protection by the affirmative defense.

The DOL’s return to issuing opinion letters is good news for employers, as the letters are valuable resources and provide much needed guidance. However, it is important for employers relying on opinion letters to pay close attention to the particular facts and circumstances at issue in the letter in comparison to their own. If an employer wishes to rely on an opinion letter and is at all concerned whether it applies to their circumstances, it should consult counsel.

*Jessi L. Ziska works in Z&R’s Cleveland office and practices in all areas of labor and employment law. For more information about the DOL’s Wage and Hour Opinion Letters or other labor and employment issues, please contact Jessi (jlz@zrlaw.com) at 216.696.4441.


Effectively Addressing Workplace Sexual Harassment

By David R. Vance*

In the wake of the numerous workplace harassment scandals receiving national attention, employers are reminded of the importance of implementing effective workplace sexual harassment policies. Beyond establishing an appropriate sexual harassment policy, employers must train managers and supervisors how to appropriately handle these issues. Employers also must implement a reporting mechanism for informing the employer of any instances of sexual harassment.

Sometimes employees are afraid to report instances of sexual harassment and managers and supervisors ineffectively investigate those claims that are made. Accordingly, managers and supervisors must understand how to properly receive and investigate reports of workplace sexual harassment. Finally, employers must take an appropriate course of action based upon the findings of the investigation.

1. Develop a Policy and Train Managers and Supervisors Regarding the Policy and Reporting Mechanism


Employers should take action to prevent sexual harassment in the workplace before it occurs. To this end, the employer must have a sexual harassment policy. The policy should be written in a way that all employees can understand, include clear definitions of harassment, and provide specific examples of prohibited behaviors. The employer also must advise employees how to report instances of workplace sexual harassment. Enabling third parties to report harassment or act to prevent workplace harassment is particularly effective in limiting harassment. Studies have shown that reporting of sexual harassment is more complete and frequent when there is a “zero-tolerance” policy. Therefore, creating the appropriate workplace sexual harassment policy, including a reporting mechanism, is the foundation necessary for effectively addressing workplace sexual harassment.

Following creation of the policy and the reporting mechanism, employers should implement training programs for managers and supervisors so that they can understand how to prevent workplace harassment and respond to allegations. According to research, the most effective training is in person, interactive, and led by a trainer who is positive, encouraging, and engaging. The training should be tailored to the particular workplace and is most effective when performed by a supervisor or an external expert, such as an attorney or other outside professional trainer.

2. Implement a Comprehensive Reporting Mechanism


An employer should provide every employee with a copy of the policy and an explanation of the reporting mechanism and redistribute this information periodically. Other measures to ensure effective dissemination of the policy and complaint procedure include posting them in central locations, incorporating them into employee handbooks, and holding periodic question and answer sessions.

Historically, employees have reported instances of workplace sexual harassment by informally meeting with the human resources department. However, employees may feel intimidated or confused by this process. To address these concerns, mobile platforms have developed, such as Red Flag, AllVoices, or Kendr, which enable employees to report instances of workplace harassment and to engage the human resources department. These platforms specifically permit anonymous reporting. Even in the absence of an anonymous reporting mechanism, employees must understand how to report workplace sexual harassment and must feel comfortable doing so.

3. Investigate Reported Sexual Harassment


When an employee submits a harassment complaint, the employer must choose whether to investigate the complaint internally, or whether to engage a third-party investigator. To make this decision, the employer should consider the seriousness of the allegations. For example, if the allegations are complicated, egregious, and, if true, would expose the company to legal liability, then the employer should consult an attorney to determine the best form of investigation.

When deciding how to address an employee’s complaint, an employer also should consider the identity of the alleged harasser. If the employee accuses a lower-level employee, the company’s human resources department may be an appropriate choice for handling the matter. On the other hand, if the employee points to an executive or supervisor, employers should consider whether to hire a third party to investigate.

Regardless of the approach taken, any report of workplace sexual harassment must be taken seriously and effectively investigated.

4. Undertake an Appropriate Course of Action


In many instances, an employer can avoid liability for workplace sexual harassment if it takes reasonable care to prevent and remedy workplace sexual harassment. This defense, known as the Faragher/Ellerth defense, was comprehensively discussed by the United States Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus. v. Ellerth, 524 U.S. 742 (1998). A successful Faragher/Ellerth defense involves exercising reasonable care to prevent and promptly correct workplace sexual harassment. Generally, proving an employer took such reasonable care requires establishing, disseminating, and enforcing an anti-harassment policy and reporting mechanism.

If the investigation proves that harassment has indeed occurred, the employer should take immediate corrective action. Further, the employer may choose to take remedial measures even if no harassment occurred (e.g., conduct training; reissue the company’s harassment policy). In any event, taking action following the conclusion of the investigation is essential for an effective workplace sexual harassment policy and to avoid potential liability.

Conclusion


Regardless of whether the national media remains focused on workplace sexual harassment, employers must appropriately address any report of workplace sexual harassment. The above tips are a great start for successfully handling such reports. If an employer faces reports of sexual harassment or simply wishes to implement a proactive sexual harassment policy and procedure, then the employer should consider consulting with experienced employment counsel.

*David R. Vance, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience helping employers investigate and resolve sexual harassment claims. For more information about the tips above or any other employment-related matters, please contact David at drv@zrlaw.com or 216.696.4441.


Z&R SHORTS
Upcoming Speaking Engagements


July 17, 2018

Scott H. DeHart and Brad E. Bennett present “Hiring and Onboarding Legal Skills You Must Know” and “Easy I-9 and Immigration Compliance Methods That Protect Your Employer” at The National Business Institute Seminar at the Quest Conference Center in Columbus, Ohio.

July 26, 2018

Brad E. Bennett presents “Likes, Tweets, and Texts! Social Media and Technology in the Workplace” at the Ohio Municipal Attorneys Association 2018 Municipal Law Institute at the Marriot Northwest in Dublin, Ohio.

July 27, 2018

Drew C. Piersall presents “Attorney Conduct – Sexual Harassment” at the Ohio Municipal Attorneys Association 2018 Municipal Law Institute at the Marriot Northwest in Dublin, Ohio.

August 17, 2018

Jonathan J. Downes presents “Texts, Tweets & Likes: The Intersection of Social Media & Employment Law” at the 2018 Ohio Municipal League Regional Training Meetings at The Hancock Hotel in Findlay, Ohio.
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Thursday, May 24, 2018

U.S. Supreme Court Rejects NLRB’s “Triple Bank Shot” Attack on Mandatory Arbitration Agreement Class Waivers

By Patrick J. Hoban*


On May 21, 2018, the U.S. Supreme Court held that mandatory employment arbitration agreements that require employees to waive the right to class litigation do not violate the National Labor Relations Act (“NLRA”). See Epic Systems Corp. v. Lewis, Nos. 16-285, 16-300, 16-307, 2018 U.S. LEXIS 3086 (May 21, 2018). The Supreme Court’s decision rejected the National Labor Relation Board’s (“NLRB”) strenuous, six-year fight to establish that class litigation is protected, concerted activity under Section 7 of the NLRA and that its limitation in the employment context is unlawful. Because of the Court’s decision, employers are now free to require that employees waive the right to engage in class litigation as part of a mandatory arbitration agreement.

In 2012, after eight decades of peaceful coexistence between the Federal Arbitration Act (“FAA”) and the NLRA, the NLRB took the position that employment arbitration agreements that require waiver of class litigation rights are unlawful. See D.R. Horton, Inc., 357 NLRB 2277 (2012). Specifically, the NLRB found such agreements violated Section 7 of the NLRA, which protects, among other things, employees’ “concerted activities for purpose of . . . other mutual aid or protection.” 29 U. S. C. §157. The NLRB’s position in D.R. Horton was contrary to its own policy, established as recently as 2010. The NLRB based its change in direction on its interpretation that Section 7 protected all collective activity, including class litigation, whether related to union organizing or not. The NLRB’s position also was based on its interpretation that the FAA’s “savings clause” rendered employment arbitration agreements that included class waivers unenforceable. The U.S. Court of Appeals for the Fifth Circuit rejected the NLRB’s D.R. Horton position and refused to enforce it. See D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013).

Despite this rebuke in the Fifth Circuit, the NLRB maintained its position that class litigation waivers in mandatory employment arbitration agreements violated Section 7. See Murphy Oil USA, Inc., 361 NLRB 771 (2014). On appeal, the Fifth Circuit again rejected the NLRB and noted that nothing had changed since its decision in D.R. Horton, just two years before. Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015). Nonetheless, in the years that followed, the NLRB relied on its D.R. Horton and Murphy Oil analysis to strike down dozens of mandatory arbitration agreements all over the country. In many cases, federal courts refused to enforce the NLRB’s decisions. However, the NLRB’s position was successfully advanced in the Seventh and Ninth Circuits. See Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016) and Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2015). The Sixth Circuit also sided with the NLRB in NLRB v. Alternative Entertainment, Inc., 858 F.3d 393 (6th Cir. 2017). Contrary to the Fifth Circuit’s prior holdings, the Seventh and Ninth Circuits held that class litigation is a “concerted activity” protected by Section 7 and adopted the NLRB’s interpretation of the FAA. With a split among the circuit courts, the Supreme Court granted certiorari and consolidated the appeals of Epic Systems, Ernst & Young, and Murphy Oil. In each of those cases, the employee-plaintiffs had attempted to bring collective/class actions alleging, among other things, wage and hour claims under the Fair Labor Standards Act (“FLSA”).

In Epic, the Supreme Court rejected the NLRB’s argument regarding the FAA and held that it did not invalidate arbitration agreements because they required or prohibited arbitration of class claims. The Court also rejected the argument that the NLRA trumps the FAA in all matters ostensibly related to collective employee activity – such as employment-based class actions. Instead, the Supreme Court instructed that class or collective actions were largely unknown when Section 7 was enacted in 1934, noting specifically that even the FLSA’s collective action provisions were enacted several years after Section 7.

In a key section of its decision, the Supreme Court examined Section 7 and concluded that its protection of “concerted activities for purpose of . . . other mutual aid or protection” could not reasonably include class litigation as the NLRA’s broader provisions address organization and collective bargaining but make no mention of arbitration or collective litigation. The Court further explained that Congress had expressly prohibited arbitration of statutory claims under other federal statutes and its failure to do so in the 84-year history of the NLRA meant it did not intend to place arbitration within Section 7’s reach.

Dissecting the NLRB’s argument that its prohibition of class arbitration waivers aided enforcement of the FLSA, the Supreme Court questioned why the FLSA itself did not prohibit such waivers. Dismissing the NLRB’s argument that the NLRA controls claims under the FLSA and overrides the FAA, the Court described this logic as “a sort of interpretive triple bank shot, and just stating the theory is enough to raise a judicial eyebrow.”

Finally, the Supreme Court held that no deference is due the NLRB’s position. The Court noted that, as recently as 2010, the NLRB’s General Counsel had taken a position opposite to the NLRB’s position in D.R. Horton in 2012. The NLRB provided no rationale for the change. The Court further explained that it owed no deference to the NLRB’s interpretation of the FAA, noting that it has “never deferred to the [NLRB’s] remedial preferences where such preferences potentially trench upon federal statutes and policies unrelated to the NLRA.”

Four justices joined in a dissent authored by Justice Ginsburg. The dissent argued that the FAA does not “permit employers to insist that their employees, whenever seeking redress for commonly experienced wage loss, go at it alone.”

In sum, the Supreme Court’s decision in Epic rejected the NLRB’s argument that NLRA-protected rights trumped the provisions of the FAA and the national policy favoring arbitration of employment disputes. The Supreme Court further announced that the NLRB’s authority does not extend to interpretation or enforcement of other federal statutes. Finally, the Court hints that the NLRA’s “bread and butter” focus is union organizing and collective bargaining and that the NLRB strains its authority when it reaches beyond that core jurisdiction.

After Epic, employers may include class litigation waivers in mandatory arbitration agreements without fear of attacks based on the NLRA, unless Congress passes legislation in the future limiting that right. However, employers must continue to ensure that arbitration agreements do not bar employees from accessing administrative agency procedures and the right to file charges with the NLRB or EEOC, as current jurisprudence prohibits such restrictions. Employers may continue to require employees to agree that they are limited to arbitration remedies and waive any remedy available through administrative agencies.

*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, regularly represents employers before the National Labor Relations Board and practices in all areas of labor relations. For more information about the Supreme Court’s decision in Epic or any other labor or employment matter, please contact Pat at pjh@zrlaw.com or 216.696.4441.
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Monday, April 30, 2018

SHOW ME THE MONEY: IRS Issues First FAQs on Employer Tax Credit for Paid Family and Medical Leave

*By Stephen S. Zashin


The recently enacted Tax Cuts and Jobs Act of 2017 (the “Act”) created an employer tax credit for paid family and medical leave provided to employees. Specifically, Internal Revenue Code section 45S provides a general business tax credit to employers that voluntarily offer paid family and/or medical leave to their employees. On April 9, 2018, the Internal Revenue Service (“IRS”) issued a set of frequently asked questions (“FAQs”) that provides guidance to employers planning to take advantage of the tax credit.

The FAQs provide an informative overview of the tax credit and clarify several definitions. For instance, the FAQs provide that for purposes of the credit, “paid family and medical leave” includes time off for the following:
  • Birth of an employee’s child and to care for the child;
  • Placement of a child with the employee for adoption or foster care;
  • To care for the employee’s spouse, child, or parent who has a serious health condition;
  • A serious health condition that makes the employee unable to perform the functions of his or her position;
  • Any qualifying exigency due to an employee’s spouse, child, or parent being on covered active duty (or having been notified of an impending call or order to covered active duty) in the Armed Forces; and
  • To care for a service member who is the employee’s spouse, child, parent, or next of kin.
The FAQs note that an employer cannot claim the credit for any paid leave provided by the employer to comply with a state or local law or for leave paid by a state or local government. Additionally, if an employer provides paid vacation leave, personal leave, or medical or sick leave, that paid leave is not considered “family and medical leave” and is not eligible for the credit.

Other FAQs address the effective dates of the credit, how the tax credit is calculated, and how to adjust the deduction for wages if an employer elects the credit. Notably, unless extended by Congress, the credit only applies to tax years 2018 and 2019.

The IRS expects to provide additional information on the following:
  • When the written policy must be in place?
  • How paid “family and medical leave” relates to an employer’s other paid leave?
  • How to determine whether an employee has been employed for “one year or more?”
  • How state and local leave requirements will impact the credit?
  • How members of a controlled group of corporations and businesses under common control are treated as a single taxpayer in determining the credit?
Z&R will continue to monitor additional IRS guidance on the paid family and medical leave tax credit and report any significant developments. Until additional guidance is issued, employers should contact counsel to determine if they can take advantage of this tax credit.

*Stephen S. Zashin is an OSBA Certified Specialist in Labor and Employment Law and the head of Zashin & Rich’s Labor, Employment and Sports Law Groups. Stephen regularly litigates FMLA cases and provides employers with FMLA guidance. For more information about the paid family and medical leave tax credit, please contact Stephen at ssz@zrlaw.com or 216.696.4441.
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Tuesday, April 10, 2018

Salary History is No Defense to an “Equal Pay Act” Violation, Says Ninth Circuit

By Scott H. DeHart*


On April 9, 2018, the U.S. Court of Appeals for the Ninth Circuit – which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington – held that, under the Equal Pay Act of 1963 (“EPA”), employers can no longer rely on an employee’s prior salary to justify different wages paid to male and female employees. The case is Rizo v. Yovino, No. 1:14-cv-00423-MJS, slip op. (9th Cir. April 9, 2018). The Court’s decision came on the eve of “Equal Pay Day,” a symbolic date chosen each year to illustrate how far into the new year women in the U.S. must work to ‘catch up’ to men’s earnings from the prior year.

The female plaintiff, Aileen Rizo, was a math consultant hired by the Fresno County Office of Education. She previously worked as a middle and high-school math teacher. To determine her salary, Fresno County followed its policy of taking Rizo’s prior salary, adding 5%, and placing her in the appropriate “Step” on a 10-step hiring salary schedule. Several years later, Rizo learned that the County placed male colleagues who had been hired after her at higher salary steps. Rizo filed a lawsuit claiming, among other things, that her employer had violated the EPA.

Congress passed the EPA to prohibit sex-based wage discrimination in employment. The core principle of the EPA is that men and women should receive equal pay for doing equal work, regardless of their sex. The EPA contains several exceptions to this anti-discrimination principle, including a catch-all for a wage “differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1) (emphasis added).

The question before the Ninth Circuit in Rizo was whether an employee’s prior salary was a “factor other than sex” on which an employer could rely to defend different salaries between male and female employees. A three-judge panel of the Ninth Circuit initially answered yes to this question, and held that prior salary was a permissible “factor other than sex” under the EPA, relying on the Ninth Circuit’s 1982 decision in Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). In Kouba, the Ninth Circuit had upheld a salary system that calculated employee salaries based on prior salary, along with ability, education, and experience.

After the three-judge panel’s decision, the Ninth Circuit agreed to rehear the case en banc (i.e., all the judges of the court hear the case, not just three). The full Ninth Circuit disagreed with the three-judge panel’s decision and overturned Kouba. The Ninth Circuit held that prior salary (alone, or in combination with other factors) cannot justify a wage differential. The Court explained that allowing employers to defend an EPA lawsuit based on ‘prior salary’ gives employers the ability to “capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum.” That would be contrary to the text and history of the Equal Pay Act, and would undermine the basic principle for which the EPA was passed.

Although the decision is only binding law in the states covered by the Ninth Circuit and not in Ohio, the Rizo decision may have far-reaching impact. In the era of #metoo and #timesup, employers are facing increased scrutiny of policies and practices that negatively impact women in the workforce. Other courts may soon be persuaded by the Ninth Circuit’s reasoning in Rizo and issue similar decisions limiting or prohibiting employer reliance on “prior salary” to justify different salaries for men and women who perform equal work.

Employers should work closely with legal counsel to ensure that their existing wages and compensation policies are consistent with the requirements of the EPA and other federal and state laws.

*Scott H. DeHart is a member of the firm’s Labor and Employment Group and practices out of the firm’s Columbus, Ohio office. Scott has experience defending against equal pay claims. If you have questions about employee pay or any other labor or employment issues, please contact Scott at shd@zrlaw.com or (614) 224-4411.
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Monday, February 12, 2018

EMPLOYMENT LAW QUARTERLY | Winter 2018, Volume XX, Issue i

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Out with the Old, in with the New: A Look Forward and Back to Start the New Year

By Stephen S. Zashin*

Heading into 2018, Zashin & Rich has created a checklist for employers:

Policy Review:
☐ Review discrimination, harassment and retaliation policies;
☐ Review policies concerning Family and Medical Leave and disability accommodation issues;
☐ Review policies concerning pay for time worked (including reviews of pre and post shift work and meal and rest breaks);
☐ Review social media policies to ensure that they comply with recent guidance from the National Labor Relations Board (even if the company is a non-union employer);
☐ Review wage deduction policies to ensure that only proper deductions are made from employee pay; and,
☐ Update confidentiality, non-solicitation and non-compete agreements to take advantage of the Defend Trade Secrets Act.

Applications:
☐ Revise employment applications to comport with "ban the box" rules governing questions about convictions; and,
☐ Review employment application procedures to ensure that all third party background checks comply with the Fair Credit Reporting Act.

Training:
☐ Train employees, managers and supervisors about discrimination, harassment and retaliation; and,
☐ Train managers and supervisors about FMLA and ADA leaves of absences and accommodations.

Audit:
☐ Ensure that employees are properly classified as exempt or non-exempt under the Fair Labor Standards Act;
☐ Review pay practices to ensure that minorities are not statistically disadvantaged in compensation;
☐ Review workforce composition information to ensure that minorities are not statistically disadvantaged in management;
☐ Analyze health care enrollment to ensure that only eligible participants are on the company's medical plan; and,
☐ Review independent contractor classifications to ensure that those working under such arrangements are actually independent contractors.

Be sure to follow Zashin & Rich's Employment Law Quarterly to stay updated on labor and employment law developments in 2018.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, is the founder of the firm's Labor and Employment Groups and has extensive experience with all aspects of labor and employment law. If you have questions regarding the above checklist or any other labor or employment issues, please contact Stephen at ssz@zrlaw.com or (216) 696-4441.



How the Tables Have Turned: NLRB Shifts Course Under Trump Administration

By Patrick J. Hoban*

During the Obama administration, the National Labor Relations Board ("NLRB") was a thorn in the side of many employers - overturning long-standing precedent and broadly construing the National Labor Relations Act ("NLRA") to protect employee activities and prohibit employer enforcement of commonplace employment policies. Now, under the Trump administration, the NLRB has shifted in a more employer-friendly direction. The Republican-appointed NLRB majority recently issued two decisions that dramatically altered the framework for analyzing work rules and joint employer status. Also, the NLRB's General Counsel issued a memorandum to NLRB regional directors highlighting priorities going forward, including a focus on legal issues raised "in cases of the last eight years that overruled precedent."

A New Standard for Evaluating Work Rules


In recent years, many employers were frustrated and confounded by a seemingly endless string of NLRB decisions rendering work rules unlawful, including those commonly set forth in employee handbooks. In analyzing these rules, the NLRB used a standard (referred to as the Lutheran Heritage standard) that asked, in part, whether an employee would "reasonably construe" the work rule to prohibit NLRA-protected activity. The NLRB's application of this standard led to inconsistent and arbitrary results. For example, the NLRB found rules prohibiting "loud, abusive, or foul language" and an "inability or unwillingness to work harmoniously" to be unlawful, yet approved of rules prohibiting "abusive or threatening language" and "conduct that does not support the . . . [employer's] goals and objectives." The NLRB's application of the Lutheran Heritage standard "produced rampant confusion for employers" and allowed the NLRB to find neutral and innocuous work rules unlawful, without giving due consideration to legitimate business justifications underlying the rules.

Fortunately for employers, in December 2017, the NLRB overturned the Lutheran Heritage standard and adopted a new framework for analyzing work rules. See The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). Under this new standard, the NLRB evaluates: (1) the nature and extent of the work rule's potential impact on employees' protected rights under the NLRA; and (2) the legitimate justifications associated with the work rule. In Boeing, the NLRB applied this new framework to a "no-camera rule" implemented by Boeing that restricted employee use of cell phones and other camera-enabled devices on company property. Initially, an Administrative Law Judge ("ALJ") found Boeing's no-camera rule unlawful under the Lutheran Heritage standard. Reversing the ALJ, the NLRB emphasized the "fundamental problems with the . . . application of Lutheran Heritage when evaluating the maintenance of work rules, policies and employee handbook provisions." These problems included the NLRB's failure to take into consideration legitimate justifications associated with the work rules, the false premise that employees are better served by no work rules as opposed to ones that may have some overlap with NLRA coverage, and the failure of the standard to allow the NLRB to differentiate among industries and work settings.

Applying its new standard to Boeing's no-camera rule, the NLRB held that any potential impact on Boeing's employees' exercise of protected rights under the NLRA was outweighed by the substantial and important justifications underlying the rule. These justifications included Boeing's need to maintain its security protocols, protect against the disclosure of sensitive and proprietary information (including employee personal information), and (as an aircraft manufacturer and military defense contractor) limit the risk of becoming the target of a terrorist attack.

A Return to a Prior Standard for Evaluating Joint Employer Status


In another December 2017 decision, the NLRB announced it was returning to its prior standard for evaluating whether two entities should be deemed a joint employer, and therefore, subjected to joint and several liability under the NLRA. See Hy-Brand Industrial Contractors, 365 NLRB No. 156 (Dec. 14, 2017). In 2015, the NLRB held that two entities are joint employers based on the mere existence of reserved joint control (i.e., a contractual right to exercise control), or based on "indirect" or "limited and routine" control. The NLRB could have deemed two entities joint employers even if they never actually exercised joint control over essential terms and conditions of an employee's employment. Under this broad standard, a parent company or even a client could face liability on legal obligations under the NLRA, even without exercising any control over a subsidiary's or vendor's employees.

In Hy-Brand, the NLRB rejected this standard in favor of the pre-existing joint employer test, under which "the essential element in . . . [the] analysis is whether a putative joint employer's control over employment matters is direct and immediate." In conducting this analysis, the NLRB will now focus, as it did in the past, on "whether an alleged joint employer 'meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction.'" Accordingly, the mere existence of reserved control, which has not been exercised, or indirect or limited and routine control is no longer sufficient to give rise to joint employer status and joint and several liability under the NLRA.

The NLRB's General Counsel's Memorandum


Also in December 2017, the NLRB's newly-appointed General Counsel issued a memorandum to the leadership of the NLRB's regional offices, which set forth guidelines and priorities going forward. These priorities include special attention to "[s]ignificant legal issues includ[ing] cases over the last eight years that overruled precedent and involved one or more dissents." The General Counsel enumerated a number of areas of focus, including employee access to employer email to engage in union-related and other protected activity under the NLRA, off-duty employee access to employer property, work rules, and joint employer status. The NLRB has already issued decisions regarding work rules and the joint employer standard. Additional decisions from the NLRB are likely forthcoming that further revise Obama-era policies.

As demonstrated by the Boeing and Hy-Brand cases, which were decided shortly after the General Counsel issued the memorandum, a dramatic shift appears to be underway at the NLRB. Zashin & Rich will continue to report on developments from the NLRB.

*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, regularly practices before the NLRB and counsels employers regarding work rules and protected activity. If you have questions about recent developments at the NLRB, please contact Pat at pjh@zrlaw.com or (216) 696-4441



Father Trucker: The Sixth Circuit Addresses a Truck Driver’s Discrimination Claim Premised Upon His Status as a Single Parent

By Jessi L. Ziska*

Most employers are familiar with prohibitions on discrimination based on an employee's race, color, religion, sex, national origin, age, and disability. As demonstrated in a recent decision by the U.S. Court of Appeals for the Sixth Circuit, however, employers also should beware of employment decisions based on other factors, including marital and familial status. See Reedy v. Rich Transp., LLC, No. 17-1085, 2017 U.S. App. LEXIS 22031 (6th Cir. Nov. 1, 2017). Although the Sixth Circuit ultimately found in favor of the employer, the Reedy decision serves as a warning to employers about actions and statements about an employee's family that could give rise to a lawsuit.

In Reedy, the plaintiff, who was married but separated from his wife, had custody of their five children. During one of his shifts as a truck driver, the plaintiff left his truck at a truck stop and went home early due to a snowstorm. When his supervisor ordered him to retrieve the truck the following day, the plaintiff refused because he could not find a babysitter. His supervisor responded: "I don't give a f*** about your kids. Get your f***ing ass in that truck because that's where we need to have you." Subsequently, another one of the plaintiff's supervisors told him that, if he had known the plaintiff was a single parent, he would not have hired him. A few days later, the employer terminated the plaintiff, citing issues with his performance including his refusal to retrieve the truck as ordered.

The plaintiff then filed a lawsuit alleging his employer discriminated against him based on his status as a single parent in violation of Michigan's antidiscrimination law, which specifically prohibits discrimination based on "marital status." After the district court dismissed his discrimination claim, the plaintiff appealed to the Sixth Circuit. On appeal, the Sixth Circuit assumed the plaintiff qualified for protected status, noting that the Michigan Supreme Court has never addressed whether the State's antidiscrimination law "covers single or separated parents (or the perception of single with children while still married)."

In support of his discrimination claim, the plaintiff relied solely on his supervisors' statements. Affirming the dismissal of his claim, the Sixth Circuit held that "[t]otal reliance on statements about [the plaintiff's] status as a single parent is not sufficient evidence of motivation to terminate his employment." The court noted that the supervisors' statements, although close in time to the plaintiff's termination, were not directly linked to the decision to terminate his employment. Furthermore, the plaintiff failed to present any additional evidence to call into question the legitimacy of the employer's stated reasons for his termination, including his failure to retrieve the truck as directed.

The Sixth Circuit also found that the plaintiff failed to present evidence that the employer treated him differently on the basis of his marital status. Specifically, the plaintiff was unable to point to anyone outside his protected class who enjoyed better treatment from the employer.

While the Sixth Circuit affirmed the dismissal of the plaintiff's discrimination claim, one of the judges felt his claim should have survived. In a dissenting opinion, Judge White stated that the supervisors' troubling statements "certainly . . . [gave] rise to an inference of unlawful discrimination."

Unlike Michigan's antidiscrimination law, Title VII of the Civil Rights Act of 1964 and Ohio's antidiscrimination law do not specifically prohibit discrimination based upon "marital status" in the employment context. Nevertheless, employers in Ohio and elsewhere still should be cautious of making employment decisions based upon employee or applicant marital or familial status as local ordinances may prohibit such conduct. Also, even in the absence of a law specifically prohibiting these types of discrimination, employees may be able to bring suit against their employers for sex-based discrimination arising out of comments or actions tied to their marital or familial status. For example, an employer could give rise to a discrimination claim by asking only female job applicants whether they are married or have young children.

In sum, employees' familial obligations can present challenges for employees and their employers alike. Although the Sixth Circuit in Reedy found the comments insufficient to prove discrimination, employers should be cautious of actions and comments based on or relating to their employees' marital or familial status.

*Jessi L. Ziska recently joined Zashin & Rich in their Cleveland office and practices in all areas of labor and employment law. If you have questions regarding the Reedy decision, please contact Jessi at jlz@zrlaw.com or (216) 696-4441.



EMS Captains and Lieutenants Are Supervisors, Not “Public Employees,” Under Ohio Collective Bargaining Law

By George S. Crisci*

In a recent directive, the State Employment Relations Board ("SERB") provided further clarification on the types of job responsibilities that will exempt employees from collective bargaining under Ohio law. Specifically, SERB held that EMS captains and lieutenants qualified under the "supervisor" exemption of Ohio's collective bargaining law. See In re Athens County EMS Association, Case No. 2017-REP-04-0053 (Nov. 17, 2017). This latest directive follows closely on the heels of another SERB decision (which Zashin & Rich reported on here) holding that captains in a fire department fell within the "confidential" and "management" employee exemptions.

Ohio Revised Code Section 4117.01 sets forth a number of exclusions from the definition of "public employee" under Ohio's collective bargaining law. If a public employee falls within one of these exclusions, then the employee is not entitled to collective bargaining rights. One such exclusion applies to "supervisors," which are defined, in part, as individuals who have the authority to "to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other public employees; to responsibly direct them; to adjust their grievances; or to effectively recommend such action, if the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment." R.C. 4117.01(F).

In April 2017, a union filed a request to represent, for collective bargaining purposes, all EMTs, paramedics, lieutenants, and captains in the Athens County EMS Department. After the County Commissioners objected to this request, SERB directed the matter to its Office of General Counsel for an inquiry. SERB asked the General Counsel to determine whether the EMS captains and lieutenants were exempt from the definition of "public employees" under Ohio Revised Code Chapter 4117. On November 7, 2017, SERB's General Counsel issued findings of fact and conclusions of law, finding the captains and lieutenants qualified under the "supervisor" exemption. Subsequently, SERB adopted the General Counsel's conclusions, granted the Athens County Commissioners' objection, and denied the union's request to represent the EMS captains and lieutenants.

The Athens County EMS Department was comprised of the chief, assistant chief, five captains, two lieutenants, and 38 EMT/paramedics. Among various other duties, the captains and lieutenants were involved in hiring employees, including participating in candidate interviews and making hiring recommendations. Likewise, both the captains and lieutenants disciplined employees, including issuing verbal and written reprimands without prior approval, and developed and conducted annual performance evaluations.

In analyzing these responsibilities under R.C. 4117.01, SERB noted the captains and lieutenants did perform "duties that are routine and ministerial in nature: however, there are duties that require judgment to initiate action and utilize discretion without further review." Pointing specifically to the captains' and lieutenants' responsibilities with respect to employee performance evaluations and employee discipline through written and verbal reprimands, SERB found that the captains and lieutenants met the "supervisor" criteria as set forth in R.C. 4117.01(F). Therefore, they were exempted from the definition of "public employee" and were not entitled to collective bargaining rights under Ohio law.

As the operations of safety forces continue to develop, management must consider the structural application of their organizations. Petitions to amend existing bargaining units can be filed at SERB. Careful application of the standards and the procedural steps must be taken. These cases are fact specific, and public employers looking to amend a bargaining unit should contact counsel to evaluate the merits of doing so.

*George S. Crisci, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience representing employers before SERB. If you have questions regarding this SERB decision or other collective bargaining issues, contact George at gsc@zrlaw.com or (216) 696-4441.



Z&R SHORTS


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


Jessi L. Ziska earned her law degree, as well as certificates in both Litigation and Alternative Dispute Resolution and Health Law, from The University of Akron School of Law. Jessi was a member of the Moot Court Honor Society ("MCHS") and Trial Team. As a member of the MCHS, Jessi competed in the 2016 American Bar Association National Appellate Advocacy Competition in Boston, Massachusetts. Jessi was later elected to serve as the President of the MCHS. After her performance in Akron Law's Summer Trial Academy, Jessi was selected to join Akron Law's nationally-known Trial Team, which gave her the opportunity to compete in the 2016 Ohio Attorney General's Public Service Mock Trial Competition in Columbus. As part of Akron Law's Health Law program, Jessi completed an externship in the health law practice group of a well-established, Northeast Ohio firm. During her externship, she reviewed and revised employment agreements between physicians and hospitals, formed various corporate and non-profit entities, and ensured corporate compliance with federal and state laws.

Christopher D. Caspary's practice focuses on employment litigation and corporate employment counseling. Chris previously practiced in the areas of civil litigation and insurance defense, and appeared in courts throughout Ohio and in federal court. Chris's experience also includes taking and defending depositions, drafting pretrial motions and pleadings, and advising clients on complex legal issues. Following law school, Chris clerked for the Honorable Nancy A. Fuerst in the Cuyahoga County Court of Common Pleas, where he drafted opinions and rulings, conducted certain hearings and conferences, and provided legal recommendations to the Judge. While in law school, Chris specialized in labor and employment law, worked in the Employment Law Clinic, and externed with the Federal Trade Commission. Chris is the Vice-Chair and incoming Chair of the Cleveland Metropolitan Bar Association's Litigation Section. Chris is a member of the Cleveland Metropolitan Bar Association's Bar Admissions Committee and is a member of the William K. Thomas Inn of Court. Chris was also a delegate to the 8th Judicial District Conference in May 2015 and October 2016.

Upcoming Speaking Engagements


March 2, 2018
Jonathan J. Downes and Drew C. Piersall present "Beyond Sexual Harassment and Other Claims of Discrimination - Legal and Practical Realities" at the Ohio Municipal Attorneys Association's 2018 Spring Municipal Civil and Criminal Law Seminar at the Westin in Columbus, Ohio.

March 2, 2018
Stephen S. Zashin presents "Hearing Employment Law Cases" at The Supreme Court of Ohio Judicial College Webinar.

March 14, 2018
Patrick M. Watts presents "Conducting Harassment Investigations" at the Greater Ashtabula Chamber of Commerce in Ashtabula, Ohio.

March 19, 2018
Jonathan J. Downes presents "Legal Minefields to Avoid" at the Ohio Association of Chiefs of Police - New Chiefs' Workshop at the Crowne Plaza in Dublin, Ohio.
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Tuesday, January 2, 2018

The “Tax” of Silence – Tax Reform’s Impact on Settling Sexual Harassment Claims

By Stephen S. Zashin*

On December 22, 2017, President Trump signed the “Tax Cuts and Jobs Act,” which is a sweeping tax reform law the size of which the United States has not seen in decades. As a significant part of this new law, employers can no longer deduct sexual harassment settlements and associated legal fees as a business expense, when the settlement is contingent upon a nondisclosure agreement. In this context, a nondisclosure agreement typically would prohibit the parties from disclosing the terms of the settlement or the alleged facts supporting the sexual harassment claim. The recent barrage of sexual misconduct allegations against celebrities, such as Harvey Weinstein, Matt Lauer, Bill O’Reilly, and Al Franken — and confidential settlements arising from these types of accusations — prompted this change to the tax law.

The “Harvey Weinstein Tax,” as some are calling it, is not a tax. Rather, the provision prohibits tax deductions. Prior to this law, sexual harassment settlements and related attorneys’ fees were deductible business expenses. However, the new law prohibits such deductions for amounts paid or incurred pursuant to a confidential settlement. To illustrate, under the new law, if a company paid a $1 million sexual harassment settlement, it is prohibited from deducting that amount if the settlement contained a nondisclosure agreement. However, in the absence of a nondisclosure agreement, and assuming a 21% corporate tax rate, the company may deduct the $1 million settlement for a tax savings of $210,000.

In the example above, the company would need to determine whether a tax savings of $210,000 is worth a nondisclosure agreement (i.e., prohibiting the employee from discussing the terms of the settlement and the underlying circumstances and allegations). This tax provision has both legal and tax consequences. Employers settling sexual harassment claims should discuss with counsel, chief financial officers and potentially their tax consultants, this new tax provision and its implications on settling any sexual harassment claim.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law and the head of the firm’s Labor, Employment and Sports Law Groups, has extensive experience litigating and resolving sexual harassment claims. For more information about settling sexual harassment claims, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
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Friday, September 15, 2017

EMPLOYMENT LAW QUARTERLY | Summer 2017, Volume XIX, Issue ii

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If It Ain’t Broke, Keep Fixing It! USCIS Releases another Revision of Form I-9

By Scott H. DeHart*

In January, Zashin & Rich reported that the U.S. Citizenship and Immigration Services (“USCIS”) had given its Employment Eligibility Verification Form I-9 a “smart” makeover, complete with new features such as drop-down menus, hover text for on-screen instructions, real-time error prompts, and quick response codes. Employers were required to begin using the new version of Form I-9 to verify employment eligibility for new hires on January 22, 2017.

The USCIS has made some additional changes and has issued another new Form I-9. Starting September 18, employers must begin using USCIS’s latest revision (which has a revision date of 07/17/2017).

The most-recent revisions to Form I-9 are minimal. References to the “Office of Special Counsel for Immigration-Related Unfair Employment Practices” have been replaced with that office’s new name: “Immigrant and Employee Rights Section.” The USCIS also removed “the end of” from the phrase “the first day of employment” and made changes to the order of the “List C” acceptable documents that may be submitted for employment authorization.

The USCIS also made corresponding updates to its Handbook for Employers: Guidance for Completing Form I-9 (M-274), which should make the Handbook easier for users to navigate.

Further revisions are expected between now and March 2018, when new regulations will take effect that will necessitate minor changes to the acceptable "List A" documents.

Employers can download a PDF version of the new Form I-9 at the USCIS website, along with instructions about how to complete the form: https://www.uscis.gov/i-9. The new Form I-9 may be completed using a computer and then printed for signing. Employers also may print and complete an alternate version of the form (without any smart features and fillable fields) by hand.

*Scott H. DeHart is a member of the firm’s Labor and Employment Groups and practices out of the firm’s Columbus, Ohio office. If you have questions regarding the new Form I-9, contact Scott (shd@zrlaw.com) at (614) 224-4411.


Fire Captains Are Not “Public Employees” Under Ohio Collective Bargaining Law

By Jonathan J. Downes*

Municipalities have struggled for years with the limitations on the exclusions of management positions in police and fire departments from collective bargaining. Supervisors in fire and police safety forces, with limited exceptions, have had bargaining rights in Ohio. The State Employment Relations Board ("SERB") recently provided clarification on the exemptions that apply. Municipalities should consider the clarified standards.

In April, SERB clarified the exemptions from collective bargaining for confidential and management employees in fire and police departments. In 2016, the fire union in West Chester Township, Butler County, petitioned SERB to include the rank of Captain in the union contract. SERB issued a Directive on April 21, 2017, adopting the staff attorney recommendations that the opt-in request for recognition by the West Chester Professional Firefighters, IAFF, be dismissed with prejudice. In re West Chester Township, Butler County, Case No. 2016-REP-07-0067 (Apr. 21, 2017).

SERB found that the Fire Bureau and Shift Captains are “confidential” and “management” employees within the meaning of R.C. 4117.01(K) and (L) and are, therefore, excluded from the definition of “public employee” under R.C. Chapter 4117 and are not to be included in the union contract.

The IAFF filed an “Opt-in Request for Recognition” to include the Fire Bureau and Shift Captains in an existing bargaining unit of firefighters. SERB directed the matter to an inquiry. The Township presented testimony and documentary evidence to show that the Captains were “confidential” and/or “management level” employees and should be excluded from the definition of “public employee” in R.C. Chapter 4117. The SERB Report instructs that exclusions to the definition of “public employee” must be construed narrowly, and that the party seeking exclusion bears the burden of establishing it by a preponderance of the evidence. SERB provided specific guideposts for the confidential and management exclusions.

“Confidential employees,” a concept borrowed from private sector labor relations under the National Labor Relations Act, are those employees with access to the employer’s confidential labor relations information. They must either: (1) work in the personnel offices of a public employer and deal with information to be used in collective bargaining; or (2) work in a close, continuing relationship with public officers or representatives directly participating in collective bargaining on behalf of the employer. SERB accepted the conclusion that Captains are “confidential employees” under the latter prong of the test because of their relationship to the Assistant Fire Chiefs who participate directly in collective bargaining for the employer. The Captains attend biweekly Command Staff meetings where personnel issues are discussed. In negotiations, the Captains provide information, make recommendations, and are sometimes even present at the bargaining table.

“Management-level” employees are top-level, high ranking personnel who perform one or more of the job responsibilities in R.C. 4117.01(L). SERB accepted the determination that Captains may reasonably be required on behalf of their public employer to assist in the preparation for the conduct of collective bargaining negotiations. Here, the Captains provided information and made recommendations, and four of the six Captains had sat at the negotiations table. Their participation at the negotiation table was not a prerequisite to being “management-level” employees, however, given their behind-the-scenes activities throughout the negotiation process.

SERB rejected several other bases presented by the Township in this matter, which may apply in other instances. Under R.C. 4117.01(L), Captains (or others) may be “management-level employees” if they formulate policies on behalf of the employer, “responsibly direct” the implementation of policy, administer the parties’ union contract, or have a “major” role in personnel administration.

As the operations of safety forces continue to develop, management must consider the structural application of their organizations. Petitions to amend existing bargaining units can be filed at SERB. Careful application of the standards and the procedural steps must be taken. These cases are fact specific and require careful consideration of these standards.

*Jonathan J. Downes, an OSBA Certified Specialist in Labor and Employment Law, is a member of the firm’s Labor and Employment Groups and practices out of the firm’s Columbus, Ohio office. If you have questions regarding this SERB decision or other collective bargaining issues, contact Jonathan (jjd@zrlaw.com) at (614) 224-4411.


When Policies Become Promises: Are Municipal Employers Liable for Promissory Estoppel?

By Sean S. Kelly*

We have all heard the adage, “a promise is a promise.” This adage can apply in the employment context and can have unintended consequences for employers.

In legalese, the adage is called promissory estoppel, but it means the same thing. If an employer makes a statement knowing that an employee might rely on it – and the employee makes a decision based on the promise – a court can bind the employer to the promise. These promises can come in various forms, from policies, to statements made during pre-employment screenings, to salary negotiations or disciplinary proceedings.

But there is good news for public-sector entities. The doctrine of promissory estoppel appears to apply only to private-sector employers. That is the holding of an important recent case, Patterson v. Licking Twp., 2017-Ohio-5803 (5th Dist.)

Charles Patterson, an employee of Licking Township, did not have a formal employment agreement. During his employment, however, the Township adopted written Personnel Policies and Procedures. Through 2010, the Township reimbursed employees at the standard hourly rate for up to 15 unused sick days at the end of each year. In 2011, the Township changed its policies to provide a single $500 attendance bonus to employees who had not used any of their 15 sick days.

Patterson had stellar attendance. In 2010, under the old policy, Licking Township paid Patterson $2,040 for 120 hours of unused sick leave. After changing the policy, Licking Township paid Patterson $500 each year from 2011 through 2015 for his perfect attendance record.

When Patterson retired, he demanded $6,600 for 45 days of accumulated sick leave. The Township refused, and Patterson filed a lawsuit seeking damages for breach of contract and – you guessed it – promissory estoppel. The Township filed a motion for summary judgment, and the trial court dismissed the case.

On appeal, Patterson argued that the Township’s written Personnel Policies and Procedures amounted to an enforceable contract. If the policies were not a contract, Patterson argued that they at least formed an enforceable promise upon which he relied when he remained in the Township’s employment.

The court of appeals disagreed. The court first addressed the breach of contract argument. Like any good employee handbook, the policies contained a clear disclaimer. The disclaimer stated that that the Personnel Policies and Procedures are “not to be considered a contract” and “may be changed by the Board of Trustees without notice.” In light of this disclaimer, the court refused to find that the policies amounted to a written employment agreement.

But the court went further, granting political subdivisions a blanket exemption from promissory estoppel claims. The court began by stating that a political subdivision cannot be held liable on a theory of promissory or equitable estoppel when it is engaged in a government function. Moreover, the court held that a political subdivision can only be bound by a written contract that has been ratified through proper channels. This is a departure from the rule applicable to private-sector employers, who can face liability for policies contained in handbooks, or statements made during interviews and negotiations.

The court found that Licking Township, a political subdivision, was engaged in a government function when it set policies concerning the compensation of its employees. The Township was, therefore, insulated from liability for promissory estoppel claims.

Public-sector employers should be cautious when relying on this blanket exemption, however. Like private-sector employers, public-sector employers should always include a strong disclaimer in their handbooks and policy documents. They should be wary of including any provisions in employment contracts referring to handbooks or other policies outside the contract. They also should be careful about the representations they make in their interactions with employees. Whether a public or private-sector employer, all employers should be leery of binding themselves unintentionally.

*Sean S. Kelly practices in all areas of employment and labor law. If you have questions regarding the Patterson decision or employer handbooks and policies, -contact Sean (ssk@zrlaw.com) at (216) 696-4441.


Massachusetts Court Bluntly Holds an Employer Failed to Consider Off-Duty Medical Marijuana Use as a Reasonable Accommodation

By Patrick M. Watts*

Is an employer required to engage in the “interactive process,” and possibly grant a waiver of compliance with its drug-testing policies, to accommodate a prospective employee who uses marijuana for medical purposes? Yes, according to a recent decision from Massachusetts’s highest court in Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (Mass. Jul. 17, 2017).

As background, in 2012, Massachusetts's voters approved a statute that protected “qualifying patients” (i.e. those diagnosed by a licensed physician as having a debilitating medical condition) from being arrested, prosecuted, or facing any civil penalty for the medical use of marijuana. Qualifying patients receive registration cards and are limited in the amount of marijuana they may possess for treatment purposes. The act provides that such persons “shall not be penalized . . . in any manner, or denied any right or privilege, for such actions.” Massachusetts is one of twenty-nine U.S. states that have enacted statutes to legalize the medical use of marijuana, including Ohio (see H.B. 523, effective September 8, 2016). However, under federal law, marijuana remains a “Schedule I” controlled substance under the Controlled Substances Act, 21 U.S.C. § 812(b)(1), and the possession of marijuana is a federal crime regardless of whether it is prescribed by a physician for medical use.

In an opinion applying and interpreting the Massachusetts state law, the Massachusetts Supreme Judicial Court reversed the dismissal of an employee’s claims, concluding that she had alleged a facially-valid claim of disability discrimination because her employer terminated her after she tested positive for marijuana in a pre-employment drug screen. The decision might have significant trend-setting implications in other states where the use of medical marijuana has been legalized, and may influence future marijuana-related discrimination cases arising under state and federal disability discrimination laws, including the Americans with Disabilities Act.

In Barbuto, after the plaintiff accepted an offer of employment, she was informed that she would be required to take a drug test. She then candidly disclosed she would test positive for marijuana. The plaintiff explained she had been diagnosed with Crohn’s disease, a debilitating gastrointestinal condition, and her physician had certified she should use marijuana for medicinal purposes.

To mitigate the symptoms of Crohn’s disease, the plaintiff typically consumed marijuana in small quantities at her home, usually in the evening, two or three times per week. Her condition, along with concomitant symptoms of irritable bowel syndrome, left her with “little to no appetite” and she had difficulty maintaining a healthy weight. However, after beginning to take medical marijuana, the plaintiff had gained fifteen pounds and had been able to maintain a healthy weight. The plaintiff told the employer’s representative she did not use marijuana daily, nor would she consume it before work or at work.

Initially, the employer’s representative told the plaintiff that her marijuana use “should not be a problem,” but he would need to confirm with others. He later telephoned the plaintiff again to confirm that her lawful use of marijuana would not be an issue. Shortly thereafter, the plaintiff completed her pre-employment urinalysis drug screening, attended a training program, and even completed her first day of work.

On the evening of her first day, however, the employer’s human resources representative contacted the plaintiff and informed her that she was being terminated for testing positive for marijuana. The representative noted that the lawful nature of the plaintiff’s use of marijuana was immaterial because the employer followed “federal law, not state law.”

The plaintiff filed a discrimination charge with the Massachusetts Commission Against Discrimination, which has jurisdiction to investigate charges filed under the state’s anti-discrimination statutes. The plaintiff later withdrew her charge and filed a complaint directly in Massachusetts state court. She claimed that the employer and its human resources representative personally engaged in “handicap discrimination” against her in violation of state law. The Superior Court dismissed the plaintiff’s anti-discrimination claim in favor of the employer, and the plaintiff appealed her case to Massachusetts’s highest court.

The Massachusetts Supreme Judicial Court analyzed the state’s anti-discrimination statutes, which prohibit any employer from dismissing or refusing to hire a person “because of [her] handicap” if she is qualified and capable of performing the essential functions of the position with accommodations that are reasonable and pose no undue hardship to the employer.

The plaintiff alleged that she was handicapped by her Crohn’s disease, but was capable of performing the essential functions of her position with a reasonable accommodation – i.e., a waiver of the employer’s policy that bars anyone from employment if he or she tests positive for marijuana. Citing specifically the deleterious effects of her medical conditions on her appetite and weight, the court had no trouble finding the plaintiff to be a “handicapped person” under state law. The plaintiff also clearly suffered an adverse employment action vis-à-vis her termination. Accordingly, the question of whether she adequately stated a claim for disability discrimination essentially turned on whether her requested “accommodation” was reasonable on its face. Although the court noted an absence of “hard and fast” rules of reasonability and emphasized the contextual nature of the analysis, it characterized the plaintiff’s burden as one of showing that her requested accommodation was “feasible for the employer under the circumstances.”

The employer raised two primary arguments in opposition to the plaintiff’s claims. It argued that: (1) because medical marijuana use is still a punishable federal crime, the requested accommodation was facially unreasonable and therefore the plaintiff was not a “qualified handicapped person” under state law; and (2) even if plaintiff could state a claim for disability discrimination, the employer terminated her employment because she had used marijuana and failed a drug test that all employees are required to pass, and not due to her “handicap” status (Crohn’s disease). The court rejected both arguments.

First, the court noted that employers have no sound reason to interfere with an employee taking medication to alleviate or manage a debilitating medical condition, and should not terminate an employee for using such medication. Also, if an employer’s drug policy prohibits the use of a particular medication, that policy does not alleviate the employer of its duty to engage in the interactive process with the employee to attempt to identify equally effective alternative treatments that would not violate the policy.

Even where no such alternative treatment exists, the employer still carries the burden of showing that a waiver of its drug policy would cause an “undue hardship” to the employer’s business to justify its refusal to make an exception. Even though marijuana remains a Schedule I controlled substance under federal law, that status did not make the plaintiff’s request “facially unreasonable,” nor did it relieve the employer of its obligation to engage in an interactive process before terminating the plaintiff’s employment. The employer’s failure to engage in such a process was sufficient to support the facial validity of the plaintiff’s claim.

As to the employer’s second argument, the court explained that terminating an employee for the use of a certain medication to alleviate or manage a handicapping medical condition is the same as a denial of employment because of the handicap. The court likened the employer’s conduct to an employer separating a diabetic employee because its policy barred the use of insulin.

The court did leave the door open for the employer to produce evidence of an “undue hardship” justifying its denial of a waiver of its drug policy for the plaintiff’s marijuana use. For example, allowing the plaintiff’s use of medical marijuana would not be a reasonable accommodation if it was shown to impair the performance of her work; pose an “unacceptable significant” safety risk to the public, the employee, or her coworkers; or violate a contractual or statutory obligation. As to this third basis for denying such a waiver as an accommodation, the court specifically referenced U.S. Department of Transportation regulations that prohibit any safety-sensitive employee subject to drug testing under those regulations from using marijuana (see 49 C.F.R. §§ 40.1(b), 40.11(a)). The court also noted that federal contractors and federal grant recipients are obligated to comply with the Drug Free Workplace Act, 41 U.S.C. §§ 8102(a), 8103(a), which prohibits employees from using controlled substances in the workplace and requires employers to make a good-faith effort to have a drug-free workplace. The court hinted that this argument might be unavailing for the employer, however, as nothing in the Massachusetts marijuana legalization statute required employers to allow employees to use marijuana on-duty and/or in the workplace.

Fortunately for Ohio employers, Ohio’s recently-enacted medical marijuana law states, in part, that nothing in the law: (1) “Requires an employer to permit or accommodate an employee's use, possession, or distribution of medical marijuana;” (2) “Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person's use, possession, or distribution of medical marijuana;” or (3) “Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy.” R.C. 3796.28. However, as more states legalize medical or recreational marijuana and more courts address marijuana-related discrimination claims – raised under both state and federal laws – all employers should keep apprised of legal developments. Otherwise, they may be in for a major buzzkill.

*Patrick M. Watts, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of employment and labor law. If you have questions about medical marijuana laws, contact Patrick (pmw@zrlaw.com) at (216) 696-4441.


Leveling the Fee-Shifting Playing Field: Can Ohio Employers Now Recover Fees and Costs after Defending against a Discrimination Charge?

By Ami J. Patel*

A recent change to Ohio’s anti-discrimination statutes has opened the door for Ohio employers to potentially recover attorney’s fees and costs from plaintiff employees after mounting a successful defense against charges of employment discrimination.

The new law – Substitute House Bill 463 – passed the 131st General Assembly on December 8, 2016 and went into effect on April 6, 2017. Among the various provisions of H.B. 463, which also amended other unrelated sections of the Ohio Revised Code, the Ohio Legislature added new language to a section of Ohio’s anti-discrimination statutes. The new language, which can be found in R.C. 4112.05(H), provides:

If, upon all the evidence presented at a hearing under division (B) of this section on a charge, the commission finds that a respondent has not engaged in any unlawful discriminatory practice against the complainant or others, it may award to the respondent reasonable attorney's fees to the extent provided in 5 U.S.C. 504 and accompanying regulations.

Under this new provision, the Ohio Civil Rights Commission ("OCRC") now has discretion to award attorney’s fees and costs to Ohio employers if, after a hearing, the OCRC finds that the employer did not unlawfully discriminate against the employee who filed the charge of discrimination.

Fee Shifting and the “American Rule”


Generally, each party to a legal dispute is responsible for paying for its own legal expenses, a principle that courts across the country refer to as the “American Rule” (as opposed to the “English Rule,” under which fee shifting is common). Under this American Rule, a prevailing party usually cannot force the opposing party to pay the attorney’s fees it has incurred in connection with the parties’ dispute. As with many legal principles, of course, there are important exceptions. Parties may be able to obtain costs and attorney’s fees from the opposing party if a court has awarded a judgment of punitive damages in the case, or if the plaintiff’s claims were frivolous or brought in bad faith. Attorney’s fees and costs are also routinely recovered from the losing party where there is a contract or a statute that expressly allows for such fee shifting to occur.

Various federal anti-discrimination laws – such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act – are notable examples of statutory exceptions to the American Rule in the context of employment-discrimination proceedings. These federal laws contain fee-shifting mechanisms, so that a “prevailing party” (a legal term of art) becomes entitled to recover reasonable attorney’s fees from the losing party. For employee plaintiffs who prevail in advancing their claims, this fee shifting is an automatic feature and can represent a significant cost to employers, above and beyond their own expenditures in mounting a defense.

Most state anti-discrimination laws mirror their federal counterparts in both substantive and procedural aspects, and likewise contain fee-shifting provisions. Unfortunately, fee shifting mechanisms for employment discrimination claims are one-sided: the prevailing employee can recover fees and costs for bringing and pursuing the lawsuit, but the employer is not entitled to the same benefit when it prevails. This one-sided design for fee shifting traces its roots to the social policies of the civil rights era. Congress and state legislatures allowed for one-sided fee shifting in employment-related lawsuits to provide a financial incentive to would-be plaintiffs and their lawyers, as a means of encouraging them to help advance emerging civil rights protections.

Does H.B. 463 Signal a New Fee-Trend?


Prior to the enactment of H.B. 463, Ohio’s anti-discrimination statutes (which can be found in Revised Code Chapter 4112) permitted only a one-sided fee-shifting mechanism that favored employees. Ohio employees could recover attorney’s fees and costs if they prevailed over their employers in a discrimination charge or in a lawsuit, but their employers had no reciprocal right to recover attorney’s fees and costs if they prevailed over the employees.

H.B. 463 effects an important change in the law, but it does not fully place employers and employees on equal footing with respect to fee shifting. Under the new language of H.B. 463, the OCRC now has discretion to award attorney’s fees and costs to prevailing employers. Thus, the fee shift in favor of employers is not automatic, but depends on case-by-case determination by the OCRC. The fee shift in favor of employers only applies in actions before the OCRC, and is not a remedy available from Ohio courts.

Because the new fee-shifting provision for employers depends on the OCRC’s discretion, it remains to be seen whether employers now have a viable mechanism under R.C. 4112.05(H) to recover fees and costs from unsuccessful employee claimants. The OCRC very well may limit the exercise of its new statutory discretion to extreme circumstances where employees have acted in bad faith or have advanced frivolous claims.

Also, the 132nd General Assembly currently is debating a series of significant substantive changes to Ohio’s anti-discrimination laws in the form of Substitute House Bill 2, which was introduced on February 1, 2017. Sub. H.B. 2 is currently under review by the Economic Development, Commerce, and Labor Committee of the Ohio House of Representatives. While the current text of the bill does not vary the new fee-shifting provision of R.C. 4112.05(H), the OCRC’s implementation of the current provision might influence the evolution of Sub. H.B. 2 or other future legislation.

The General Assembly’s renewed attention to Ohio’s anti-discrimination statutes might signal the start of a new trend benefitting employers. On the other hand, the new fee-shifting position of H.B. 463 might turn out to be business-as-usual for Ohio employers. Zashin & Rich will continue to monitor future developments from the OCRC and the General Assembly as Ohio continues to refine its anti-discrimination remedial scheme.


*Ami J. Patel practices in all areas of labor and employment law. If you have questions about this legislation, contact Ami at (ajp@zrlaw.com) or (216) 696-4441.


Z&R SHORTS


CONGRATULATIONS


To Our 10 Attorneys Named to the 2018 Best Lawyers List
George Crisci, Jon Dileno, Deanna DiPetta, Jonathan Downes, Amy Keating, Christopher Reynolds, Jonathan Rich, Jeffrey Wedel, Andrew Zashin, Stephen Zashin

Zashin & Rich is pleased to announce that it was named a recipient of the
2017 Smart Business Family Business Achievement Award

Zashin & Rich – Family Business Achievement Award


Upcoming Speaking Engagements


Jonathan J. Downes
September 20-22, 2017
Jonathan J. Downes presents “FLSA and Storms on the Horizon” at the Ohio GFOA 30th Annual Conference & Membership Meeting at the Cleveland Marriott Downtown in Cleveland, Ohio.

Brad E. Bennett
Wednesday, September 27, 2017
Brad E. Bennett presents “Dealing with Guns, Marijuana, and Background Checks in the Workplace: Top Employment Policies for 2017” at the 2017 PCSAO Conference at the DoubleTree in Columbus, Ohio.

Jonathan J. Downes
Monday, October 2, 2017
Jonathan J. Downes presents “Labor and Employment Law Challenges” at the Ohio Association Chiefs of Police New Chiefs’ Workshop at the Crowne Plaza Columbus North‐Worthington in Columbus, Ohio.

George S. Crisci
Thursday, October 12, 2017
Stephen S. Zashin presents “Emerging Issues with Trade Secrets and Non-Competes” and George S. Crisci presents “Latest Developments from SERBia” at the Ohio State Bar Association’s 54th Annual Midwest Labor and Employment Law Seminar held in Columbus, Ohio.

Lisa A. Kainec
Tuesday, October 24, 2017
Lisa A. Kainec presents “Employment Law Hot Topics and Legislative Update” at the Medina Society for Human Resource Management seminar held at the Weymouth Country Club in Medina, Ohio.
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