- Supreme Court - Ohio Courts Enforce Employee Handbook Provisions as Contract Equivalents
During the last few weeks, there has been a significant amount of employment and labor law activity on the docket of the United States Supreme Court. - Workers' Compensation TTD - Employer Could Terminate Employee even though Employee Recently Received Workers’ Compensation Temporary Disability Benefits
In a recent decision, however, an Ohio appellate court confirms that an employer still may terminate an employee for deficient work performance even when an employee has been unable to perform job duties due to work-related injuries for which he was receiving TTD compensation. - FLSA - Department of Labor Issues Opinion Letters on FLSA Exemptions and Continuation of Dental Benefits during Leave Covered by FMLA
Recently, the DOL released a few guidance letters addressing some of the minimum wage and overtime exemptions available under Section 13(a) of the Fair Labor Standards Act (FLSA). - Employee Handbooks - Ohio Courts Enforce Employee Handbook Provisions as Contract Equivalents
Three recent Ohio court decisions remind employers that employee handbooks may be accepted by a court as an implied-in-fact contract and consequently referenced in order to define the terms of employment, even for an at-will employee. - First Amendment - Public Sector Employee’s Alleged Support for Homosexuals Can Garner First Amendment Protection
In a recent decision, the U.S. Sixth Circuit Court of Appeals denied a school board summary judgment because reasonable minds could conclude that an employee’s planned speech to a predominantly gay church congregation constituted “protected speech” and factored in the school board’s decision to hire another candidate. - Whistleblower - Employee Attempts at “Whistleblowing” Do Not Automatically Restrict Employer from Terminating
A recent decision from an Ohio appellate court confirms that an employer may terminate an employee for disparaging comments made about the employer to an outsider if the employer is unaware of any employee cooperation with an external investigation and/or the employee’s disparaging comments do not constitute protected activity. - Workers' Compensation - Employees Injured while Crossing Public Streets May Be Eligible for Workers’ Compensation
Employees often cross public streets to get from a parking lot to their worksites. Is an employee who is injured while crossing a public street eligible to receive workers’ compensation benefits? - Discrimination - Investigative Steps Taken and Evidence Reviewed by Employers To Reach Employment Decisions May Be Subject to Scrutiny for Discriminatory Animus
A recent decision from an Ohio appellate court shows that the employer’s investigative steps may come under scrutiny for possible discriminatory animus. - Discrimination - Employer Wins Discrimination Claim when It Hired a Candidate Who “Interviewed Better”
Establishing a discrimination claim under either Title VII or the ADEA usually involves the McDonnell Douglas test, a three-step process named after the U.S. Supreme Court decision where it was first developed. - Overtime - Department of Labor Issues Opinion Letters regarding Exempt Employees under FLSA Section 13(a)(1)
FLSA Section 13(a)(1) exempts overtime pay for executive, administrative and professional employees. - Age Discrimination - Denial of Transfer Request to Lower-Paying, but Subjectively More Prestigious, Position Does Not Necessarily Constitute Adverse Employment Action in Discrimination Cases
The U.S. Sixth Circuit Court of Appeals recently held that the denial of a transfer request to a lower-paying, but subjectively more prestigious, position did not constitute an adverse employment action. - Public Sector - Employer Has the Right to Discipline Employees for Actions that Detract from the Efficient Operation of the Workplace
The U.S. Sixth Circuit Court of Appeals recently applied a balancing test to a public sector employer’s policy that restricted certain public statements by its employees. - Race Discrimination - Disciplining Employee for Violating Work Rules that are Frequently Violated Constitutes Sufficient Evidence of Discrimination To Require Trial
The Sixth Circuit recently held that disciplining an employee for violating work rules that were frequently violated by other employees constituted sufficient evidence of discrimination to defeat summary judgment in favor of the employer. - Selective Enforcement - Selective Enforcement of Non-Solicitation/Distribution Policy Violates NLRA but Comments during Election Do Not
The U.S. Sixth Circuit Court of Appeals recently considered several issues pertaining to an employer’s response to its employees’ union-related activities. - Termination - Inconsistently Worded and Enforced Termination Standards Lead to Reduction of Discharge to Suspension
The U.S. Sixth Circuit Court of Appeals recently upheld an arbitration award that reduced the discharge of an employee to a 30-day suspension based on a plausible interpretation of the collective bargaining agreement and the work and safety rules promulgated by the employer under that agreement. - Discrimination - Ohio Appellate Court Upholds Jury Verdict for Plaintiff in Discrimination Case Because Plaintiff Was Treated Less Favorably Than Other Employees
The Ohio First District Court of Appeals upheld a jury verdict for a plaintiff who had alleged Title VII pregnancy discrimination, discrimination under the Family and Medical Leave Act (FMLA), and retaliation against her former employer. - Age Discrimination - Promissory Estoppel - Etc - Promises of Future Employment Insufficient to Sustain Age Discrimination, Promissory Estoppel, Breach of Contract and Fraud Claims
The Ohio Eighth District Court of Appeals recently found that one isolated comment regarding an employee’s age and alleged “promises” of future employment were insufficient to sustain age discrimination, promissory estoppel, breach of contract and fraud claims. - Golden Slippers - Employee Who Takes Company Documents Without Authorization Does Not Walk in “Golden Slippers”
Some employees who engage in “protect activity” develop a feeling of invincibility; they engage in improper behavior with the sense that either the employer will not take action or the employee can claim unlawful retaliation if the employer responds. In a recent decision, an Ohio appellate court upheld the discharge of an employee for improper conduct that seemingly was motivated by this attitude. - Americans with Disabilities Act - Morbid Obesity Not Linked to Physiological Disorder or Condition Is Not an “Impairment” under the ADA
The U.S. Sixth Circuit Court of Appeals addressed whether an increasingly common condition affecting Americans – obesity – constitutes an “impairment” that would qualify as a disability. - Americans with Disabilities Act - Employer’s Comments about Employee’s Inability To Perform Job Duties Not Evidence of “Regarded As” Disability
A claim of “regarded as” disability discrimination typically is based upon an employer’s comments that reference a person’s impairment as part of a performance assessment or adverse employment action. In a recent case the U.S. Court of Appeals for the Sixth Circuit placed limits on the extent to which such comments can be the basis for establishing a “regarded as” disability discrimination claim. - Supervisor Statements - Supervisor’s Statements Made before Employee’s Application for Promotion Are Not Evidence of Discrimination
All too often employers are forced to defend their personnel decisions against persons who are dissatisfied with the results and hope to establish a discriminatory motive where none exists. Sometimes such a challenge is based upon a comment by a supervisor, taken out of context, which was not intended to convey, nor in fact conveyed, an improper motive. - Sexual Harassment - Sexually Offensive Contact and Physically Threatening Comments Are the Downfall of a Philandering Supervisor and His Employer despite Employee’s Own Sex-Based Comments
Despite the best efforts by employers and their legal counsel to advise and train employees on inappropriate workplace conduct that can give rise to a harassment claim, particularly sexual harassment, examples still abound of misconduct by supervisors and co-employees that results in actionable harassment claims. - Employee Performance - The Broad Protections of Coolidge Continue
Since Coolidge v. Riverdale Local School District (2003) courts have since struggled with determining the precise scope of the rights and protections that employees have when they miss work because of work-related injuries. In a recent decision, an Ohio appellate court seemingly applied these rights and protections broadly to include a poorly performing employee who was discharged, in part, for not properly documenting her employment status and medical condition. - Arbitration - Court Upholds Mandatory Arbitration Agreement even though Employee Claims She Did Not Read Agreement before Signing It
Employers increasingly are attempting to avoid the time, cost and perceived unfairness of court litigation regarding employment claims by requiring employees to sign agreements mandating that employment claims be pursued in arbitration rather than in court. - NLRB - NLRB Issues Long-Awaited Guidelines on Supervisory Status
One of the issues the NLRB regularly faces is determining whether a particular individual is a “supervisor,” as defined under the NLRA. - ADHD - ADHD Held Not a Disability under ADA
The U.S. Court of Appeals for the Sixth Circuit, whose jurisdiction includes Ohio, declined to extend ADA coverage to three plaintiffs who had Attention Deficit Hyperactivity Disorder (ADHD). - Privacy - Employer’s Questions about Employee’s Ability to Complete Job Duties while Caring for Sick Family Member Did Not Invade Privacy
The First District Court of Appeals of Ohio, whose jurisdiction includes the Cincinnati area, recently held that there was no actionable invasion of privacy when an employer inquired into developing problems with an employee’s job performance that appeared to stem from the employee’s care of a sick family member. - Arbitration - Video Store Employee Bound to Arbitration Agreement in Electronically Submitted Employment Application
The Eight District Court of Appeals of Ohio, whose jurisdiction includes the Cleveland area, upheld the employee’s electronic assent to the arbitration provision, and found the online application to be indistinguishable from a paper contract. - Discrimination - Employee Fired as Part of Mass Staff Reduction Did Not Have Legitimate Discrimination Claims
The U.S. Court of Appeals for the Sixth Circuit, whose jurisdiction includes Ohio, rejected the plaintiff’s gender, age, and race discrimination claims after she was terminated along with 31 other employees. - FMLA - Termination based upon “Honest Belief” that Employee Made Threatening Remarks during FMLA-Covered Short-Term Medical Leave Held Not a Pretext
The U.S. Court of Appeals for the Sixth Circuit, whose jurisdiction includes Ohio, upheld summary judgment in favor of an employer who terminated an employee before he could return from medical leave. - Discrimination - Non-Traditional Investigation by University of Professor Accused of Misconduct by Students Did Not Support Professor’s Title VII Claim against University
The U.S. Court of Appeals for the Sixth Circuit, whose jurisdiction includes Ohio, upheld summary judgment in favor of the University of Michigan on the Professor’s title VII claims. - Privacy - Copying Employee’s Workplace Computer Hard Drive Did Not Violate any Reasonable Expectation of Privacy
The U.S. Circuit Court of Appeals for the Ninth Circuit, whose jurisdiction covers most of the Western United States, and which is based in San Francisco, recently denied an employee’s motion to suppress evidence that was obtained by copying the hard drive of his workplace computer. - FMLA - Employer Unlawfully Required Employee to Provide Medical Certification for Extension before Original FMLA Leave Expired
An employer who crafts company policies regarding employee medical leave must be careful not to impose requirements that conflict with the FMLA. Adherence to an ill-conceived company policy will not provide the employer a safe harbor from FMLA liability. - Discrimination - Employers Beware of Serial Charge Filers – Jury May Not Buy Your Non-Collegiality Termination Rationale
Employers, you cannot terminate or punish an employee who complains of discrimination, no matter how non-collegial the employee’s action may seem, if the punishment is in any way connected to the fact that the employee filed a discrimination charge or complaint. - Sexual Harassment - Employer Exposed to Liability after Inadequate Investigation into Harassment Allegations and Inadequate Remedial Response
An employer’s legal obligation to investigate a sexual harassment charge or complaint should not be taken lightly. Taking the time to conduct a thorough investigation upfront likely translates into reduced costs and hassles down the road. - Sex Discrimination - Employee Cannot Pursue Sexual Orientation Claim, which Is Not Protected Under Title VII as Proscribed Gender Stereotyping
The federal Sixth Circuit Court of Appeals, whose jurisdiction includes Ohio, recently emphasized a need for plaintiffs to demonstrate significant disparity when comparing their qualifications to employee-members of non-protected classes allegedly treated better by their employer. - Age Discrimination - Use of Qualifications Evidence by Plaintiffs to Establish Age Discrimination Claim Failed When Plaintiffs Could Not Show Significant Disparity
The federal Sixth Circuit Court of Appeals, whose jurisdiction includes Ohio, recently emphasized a need for plaintiffs to demonstrate significant disparity when comparing their qualifications to employee-members of non-protected classes allegedly treated better by their employer. - Discrimination - Employer’s “Honest Belief” Defense to Discrimination Explained and Applied
Federal and Ohio anti-discrimination statutes do not require that an employer base a decision to terminate an employee on 100 percent accurate information. - Retaliation - Plaintiff Failed to Establish that Poor Performance Evaluations Evidence Retaliation
A negative review on a performance evaluation does not constitute an adverse action for purposes of establishing a discrimination or retaliation claim. But performance evaluations can be used by an employer to bolster its legitimate, non-discriminatory reasons for termination based on poor employee performance. - Absolute Privilege - Affidavit Submitted by Employee in Support of Criminal Complaint Protected by Absolute Privilege
Ohio has long recognized the filing of a claim for malicious prosecution. To prevail on a claim of malicious prosecution, a party must prove four points. - Parking Lot Solicitations - Employer’s Retail Parking Lot Is Not “Work Area” for Union Solicitation/Distribution Activities
In certain instances, an employer may enforce a no-solicitation/distribution policy prohibiting union solicitation or leafleting activities. - FMLA - New Employer, Same Job Duties Entitles Employee to FMLA Leave
Recently, the U.S. Court of Appeals for the Sixth Circuit, which has jurisdiction over Ohio, found that an employer can be considered a successor-in-interest even if there was no merger or exchange of assets. - On Call - “On Call” Does Not Equal “On the Clock”
Often, job duties require employees to carry pagers or cell phones and be available in case of an emergency. Employees often feel as though their free time is restricted due to the possibility of being called into work and that times where they are on call should be considered “on the clock.” - Race Discrimination - Sixth Circuit Denies Plaintiff’s Race Discrimination and Retaliation Claims due to Failure to Identify Similarly-Situated Employees Who Received More Favorable Treatment
The U.S. Court of Appeals for the Sixth Circuit, which has jurisdiction over Ohio, has held that the plaintiff “must prove that all relevant aspects of his employment situation are ‘nearly identical’ to those of [the non-minority] employees he alleges were treated more favorably. - Shop Time - "Shop Time" is Compensable
According to the U.S. Court of Appeals for the Sixth Circuit, which has jurisdiction over Ohio, employees may be entitled to compensation for “shop time.” - Unemployment Compensation - Employee Denied Unemployment Compensation Benefits for Failing to Request Accommodations before Quitting
The Ohio Court of Appeals for the Eighth Appellate District, which has jurisdiction over Cuyahoga County, recently rejected an employee’s claim for unemployment compensation benefits because, before quitting, the employee had not given her employer a chance to correct the problem that the employee perceived in the workplace. - Employers' Investigation - Employers’ Investigations Need Only Be Reasonable, Not Exhaustive
Frequently, employees who are discharged following an employer’s investigation will attack the quality, sufficiency or results of the investigation. - First Amendment - First Amendment Generally Does Not Protect Public Employees’ Complaints about Their Own Working Conditions and Employment Situations
In previous decisions on public employees’ First Amendment free speech rights, courts have balanced an employee’s right to speak on matters of public concern with the government’s right, as an employer, to promote efficiency by exercising a certain degree of control over the employee’s words and actions. - Discrimination/Defamation - Ohio Court Rejects Employee’s Discrimination/Defamation Claims Based on a Self-Serving Affidavit that Challenged a Well-Documented Discharge
The Ohio Court of Appeals for the Eighth Appellate District, which has jurisdiction over Cuyahoga County, recently found that a trial court had properly dismissed an employee’s discrimination and defamation claims on summary judgment. - Employee Selection - Employers Free to Identify New Selection Criteria for Equally Qualified Candidates
When making hiring decisions, employers frequently receive responses from several candidates who meet all of the posted minimum requirements for the position. Can the employer, at that point, identify new and previously un-posted (and non-discriminatory) criteria to differentiate among the candidates, and pick a winning candidate based on new criteria? - Age Discrimination - Employer Asking, “Why Don’t You Retire ...?” Is Not Direct Evidence of Age Discrimination
Occasionally, employers and employees discuss the subject of retirement in the workplace. Employers need to be very careful during these conversations because employees are frequently pointing to statements allegedly made during these conversations as “evidence” of age discrimination. - Overtime Exemption - How to Comply With the “Salary Basis” and Preserve an Employee’s Overtime Exemption
One of the requirements for employees to be exempt from overtime under the Fair Labor Standards Act (FLSA) is that they be paid on a “salary basis.” The regulations under the FLSA provide that “salary basis” means “a pre-determined amount” of money that is “not subject to reduction because of variations in the quality or quantity of the work performed.” 29 CFR § 541.118(a). - Pregnancy - Employers Not Required to Make Exceptions to Generally-Applicable Policies to “Accommodate” Pregnant Employees
Both federal and Ohio law prohibit employers from discriminating against pregnant employees. However, this does not mean that pregnant employees are entitled to special treatment, or to exceptions from generally-applicable workplace policies. - Gender - Isolated Reference to Transsexual Employee as “He/She” Did Not Establish Discrimination Based on Failure to Conform to Gender Stereotypes
The United States Court of Appeals for the Sixth Circuit, which has jurisdiction over Ohio, recently issued a reminder that employees may not be discriminated against on the basis of their failure to conform to gender stereotypes. The case is Myers v. Cuyahoga County, No. 05-3370, 2006 U.S. App. LEXIS 13693 (6th Cir. May 31, 2006). - Retaliation - US SC Establishes Standard in Retaliation Cases
The federal employment discrimination laws prohibit not only unlawful discrimination in terms or conditions of employment, they also prohibit retaliation against employees or applicants who either complain about alleged discrimination against themselves or others, or participate in discrimination proceedings. - Public Employees - First Amendment - “Careful What You Say”: Public Employees Denied First Amendment Protection for Statements Made Pursuant to Employment Duties
In previous decisions on public employees’ First Amendment free speech rights, the U.S. Supreme Court has balanced an employee’s right to speak on matters of public concern with the government’s right, as an employer, to promote efficiency by exercising a certain degree of control over the employee’s words and actions. - Disability - Courts Continue To Define “Disability” Narrowly under Federal and Ohio Employment Discrimination Laws
A “disability” is a physical or mental impairment that substantially limits one or more major life activities, a record of such impairment, or being regarded as having such an impairment. - Racial Harassment - Quick Responsive Action to Police Officer’s Complaint of Racists Comments Arrests Hostile Work Environment Claim
An employee who claims that he has been subjected to racial harassment by his co-workers must prove that his employer knew or should have known of the inappropriate conduct and failed to take action to stop the harassment. - Unemployment Benefits - Employee Can Collect Unemployment Benefits if Reason for Quitting Is a Refusal to Perform an Immoral Activity
An individual who voluntarily terminates her employment in Ohio is not entitled to unemployment compensation unless she has just cause to quit. - Wrongful Discharge - Tort of Wrongful Discharge in Violation of Public Policy Continues To Be Unavailable to Union Employees
At-will employees may recover tort damages from a former employer if her termination violates public policy. - FMLA - Employer Had No Duty to Investigate FMLA Certification from Employee’s Physician
When an employee’s physician submits a certification that contradicts information the employee provided to her employer, must the employer investigate why the contradiction exists? - Termination - Legitimate Reason to Fire Employee Found Pretextual due to Employer’s Inconsistent Treatment of Others
The Sixth U.S. Circuit Court of Appeals, whose jurisdiction includes Ohio, recently found that a corrections center’s reason for terminating an African-American female Resident Specialist Coordinator (RSC), while based in fact, was pretext for discrimination because the correction center did not terminate a white male RSC who had engaged in worse behavior. - Discrimination - Employee Established Prima Facie Case of Discrimination where another Employee Was Promoted without the Position Being Posted
The Sixth U.S. Circuit Court of Appeals, whose jurisdiction includes Ohio, recently found that an employee may establish a prima facie case even where the promotion was never posted, thereby depriving the employee of the opportunity to apply for and be considered for the position. - Adverse Employment Action - Denial of Transfer to Lateral Position Is Not an Adverse Employment Action
To prove discrimination by using indirect evidence, a plaintiff must first establish a prima facie case of discrimination. - Employer Required to Arbitrate Dispute - Employer Required to Arbitrate Dispute Because It Failed to State Clearly That It Would Not Arbitrate
When a party to a labor contract that contains binding arbitration of grievances refuses to arbitrate a grievance, the other party can file a lawsuit in court to compel arbitration of the dispute. If a private sector employer is involved, the statute of limitations for filing a lawsuit to compel arbitration is just six months. - The Dangers of Requesting Waivers - The Dangers of Requesting Waivers of the “Reasonable Period of Time” Settlement Requirement in Age Discrimination Lawsuits
The OWBPA requires that before the age discrimination claim can be settled, the employee must be given a “reasonable period of time within which to consider the settlement agreement.” - Federal Appeals Court Clarifies - Federal Appeals Court Clarifies When Employees Can Assert Protections Based on Disabilities of Others
Most employers know that the Family and Medical Leave Act (FMLA) can provide protections to certain employees based upon the health conditions of persons other than the employee. However, some employers might be unaware that the Americans with Disabilities Act (ADA) also provides similar protection. - Employment Discrimination Claims - Consistent Enforcement of “Bad” Policy Proves Key to Defeating Employment Discrimination Claims
In a recent decision from the United States Court of Appeals for the Sixth Circuit (whose jurisdiction includes Ohio), employers are once again reminded that when applying company policies, consistency in application is crucial, particularly when that policy either is unpopular or of debatable wisdom. - Accommodations for Religious Beliefs - Company Must Make Clear Its Efforts to Provide Reasonable Accommodations for Religious Beliefs
Unlike the other prohibitions contained in Title VII (i.e., race, color, gender or national origin), employers are obligated to offer a reasonable accommodation to the employee’s religious beliefs or show that it was unable reasonably to accommodate the employee’s religious needs without undue hardship. - Sex and Race Discrimination Lawsuits - Recent Sixth Circuit Decision Highlights Analysis of Pretext in Sex and Race Discrimination Lawsuits
The United States Court of Appeals for the Sixth Circuit (whose jurisdiction includes Ohio) upheld a District Court’s grant of summary judgment in favor of the employer in a case of alleged race and sex discrimination because the plaintiff failed to prove that the employer’s stated reasons for discharging her were a pretext for unlawful discrimination. - Careful Construction of Contract Language Crucial in Employment Contracts - Careful Construction of Contract Language Crucial in Employment Contracts
A recent opinion of the federal Sixth Circuit Court of Appeals (whose jurisdiction includes Ohio) highlights the importance of carefully constructing employment contracts. - Pregnancy Discrimination - Employer Not Liable for Pregnancy Discrimination for Terminating Pregnant Employee with Lifting Restriction that Could Not Be Accommodated
A recent case from the United States Court of Appeals for the Sixth Circuit (which covers Ohio, Michigan, Kentucky, and Tennessee) illustrates the boundaries of an employer’s obligation to accommodate a pregnant employee when there was no position that the employee could perform within her restrictions. - Misuse of Computer Equipment - Court Requires Employer to Investigate Suspected Pornography Use and Take Prompt Remedial Action to Stop It
Until recently, it was unclear whether the employer had a duty to investigate suspected misuse of company computers and act if those suspicions were confirmed. However, a New Jersey Court of Appeals decision, which will certainly be followed by other courts, imposes a duty on employers to investigate suspected pornography use and take prompt action to stop its use. - Settlement Agreement - Former Employee Entitled to Damages after Employer Violated Confidentiality Provision in Settlement Agreement by Discussing Issues Related to Employee’s Performance
A recent decision from the U.S. Court of Appeals for the Sixth Circuit (which covers Ohio, Michigan, Kentucky and Tennessee) illustrates the perils that can befall an employer who disregards a non-disparagement provision. - Employers Handbook and Written Procedures - Employer’s Handbook and Written Procedures Saved Employer from Liability under the Family Medical Leave Act
Under the Family Medical Leave Act (FMLA), an employee who has a “serious health condition” that prevents the employee from working is entitled to up to 12 weeks of unpaid leave each year. The regulations governing the FMLA provide procedures to help employers manage requests for FMLA leave. - DOL Releases Opinion Letters - Department of Labor Releases Opinion Letters on How to Determine if an Employee Qualifies as a “Professional” and Is Therefore Exempt from Overtime
One of the most confusing laws that employers must understand and follow is the Fair Labor Standards Act (FLSA). The FLSA divides employees into two groups: exempt and non-exempt. - Sexual Harassment - Employer’s Prompt Response to Allegations of Co-Worker Sexual Harassment Negates Employee’s Claim for Damages
Under federal and state law, an employer may be liable for sexual harassment by a co-worker. A recent decision by the Sixth Circuit Court of Appeals, whose jurisdiction includes Ohio, examined the meaning of “prompt corrective action.” - Public Policy in Favor of Workplace Safety - Public Policy in Favor of Workplace Safety Trumps Arbitrator’s Contract Interpretation
Under both federal and Ohio law, the decision of an arbitrator can be overturned by a court only under very limited circumstances. One of those reasons is that the arbitrator’s decision violates “public policy”. Although such an arbitrator’s decision can be overturned on public policy grounds, it happens very rarely. - Clear Communication - Clear Communication a Must with Employees on FMLA Leave
Employers must maintain clear communication with employees on FMLA leave. They should remain in contact with the employee, especially toward the end of their leave, to ensure the appropriate paperwork is received and that the employee knows when she is expected to return to work. - No Public Policy Exception - No Public Policy Exception for Absenteeism to At-Will Employment
Under Revised Code Section 4123.90, it is unlawful for an employer to retaliate against an employee for filing a workers’ compensation claim. In Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d. 141, 2003-Ohio-5357, the Ohio Supreme Court expanded the type of action that constitutes retaliation under R.C. Chapter 4123 to encompass termination for absenteeism while receiving temporary total disability (TTD) benefits under Ohio’s workers’ compensation laws. Since that time, employers have been greatly concerned over the full scope of that decision. - Sixth Circuit Reaffirms Honest Belief Rule - Sixth Circuit Reaffirms “Honest Belief” Rule
Employers often worry about terminating an employee when they believe there is good reason to do so because they do not want to be sued for discrimination, particularly when that belief is mistaken. The federal Sixth Circuit Court of Appeals, whose jurisdiction includes Ohio, recently issued three opinions that should relieve the conscientious employer of this worry – as long as the employer can demonstrate an honest belief in its non-discriminatory reason for the termination. Then, the courts will uphold the termination, even after the employee has proven a prima facie case of discrimination. - EEOC Issues New Guidelines - Equal Employment Opportunity Commission Issues New Guidelines
The federal Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. Title I of the ADA makes it unlawful for any employer with 15 or more employees (including state and local government employers) to discriminate against a qualified applicant or employee because of a disability in any aspect of employment. - Employer Failure - Employer’s Failure to Conduct Prompt Investigation into Sexual Harassment Claim Exposes it to Liability
Under Ohio law (Revised Code Chapter 4112), it is unlawful for an employer to expose an employee to sexual harassment in the workplace that creates a hostile working environment. Once an employer learns that an employee has been harassed, the employer must promptly investigate the alleged harassment and remedy the situation. A recent Ohio case addresses these duties and illustrates the employer’s exposure to liability if these duties are ignored. - Return to Work - Simple “Return To Work” Note from Doctor Satisfies Fitness-for-Duty Requirement of FMLA
The federal Family and Medical Leave Act (FMLA) requires certain employers to provide qualifying employees with up to 12 weeks of unpaid leave for a serious medical condition. However, this entitlement is not without restrictions. - Department of Labor - Department of Labor Issues Series of Opinion Letters to Educate Employers
The Department of Labor (DOL) periodically issues Opinion Letters which provide guidance as to how various employment laws should be interpreted. Recently, the DOL issued the following statements which employers should keep in mind when making decisions about their employees: - Notice of Intent - Employers Are Entitled to Notice of Intent to Take FMLA Leave before Leave Must be Granted
The federal Family and Medical Leave Act (FMLA) entitles qualifying employees to up to 12 weeks of unpaid leave each year if the employee has a serious health condition that makes the employee unable to perform his or her job. An employee who wants to take FMLA leave that is not foreseeable must provide adequate notice to his or her employer of the need for such leave, within two days of learning of the need for the leave, except in extraordinary circumstances where such notice is not feasible. Although the employee need not specifically mention the FMLA as the reason for requesting the leave, federal regulations require the employee to provide enough information to require the employer to inquire into whether the reason for the leave is covered by the FMLA. The Sixth Circuit (which covers Ohio) recently addressed the notice requirement of the FMLA and excused an employer’s termination of an absent employee, finding that the employee had not provided sufficient notice of his need for FMLA leave. - Reinstatement Violated Public Policy - Court Overturns Arbitrator’s Decision to Reinstate Grievant Because Reinstatement Violated Public Policy
Courts rarely vacate or modify an arbitration award. In Akron Metropolitan Housing Authority v. Local 2517, American Federation of State, County, and Municipal Employees, AFL-CIO (9th Dist. 2005), 161 Ohio App.3d 594 (Akron Metropolitan), an Ohio appellate court took this unusual step. Because the arbitrator’s decision violated public policy, the court vacated the arbitrator’s decision (as well as the trial court’s affirmation of same) for the employee and entered judgment in favor of the employer. - Unlawful Retaliation - Employer’s Decision to Fire Problem Employee after Employee Filed E.E.O.C. Complaint Suggested Employer Unlawfully Retaliated Against Its Employee
This case underscores the problems that arise when employers choose to overlook an employee’s disciplinary problems and fail to discipline or discharge the employee when the circumstances warrant such action. If such a problem employee then engages in a protected activity, such as filing an EEOC charge, the employer should proceed cautiously when deciding to discipline or terminate the employee to avoid liability for unlawful retaliation. - Claim of Discrimination and Sexual Harassment - Employee’s Resignation Letter Acknowledging Her Respect for the Company and Her Willingness to Return in the Future Undercut Her Claims of Discrimination and Sexual Harrassment
A lesson to be learned from this case is that employers should document and keep employees’ favorable comments about their jobs. Such evidence could prove essential if an employee later sues for constructive discharge. - Sarbanes-Oxley Whistleblower - Employee Must Communicate Specific Concern about Fraud Against Shareholder to Prevail in Sarbanes-Oxley Whistleblower Action
The Sarbanes-Oxley Act (SOX) contains a whistleblower provision that prohibits employers from retaliating against employees who “provide information . . . to . . . a person with supervisory authority over the employee . . . regarding any conduct which the employee reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348; any rule or regulation of the Securities and Exchange Commission; or any provision of Federal law relating to fraud against shareholders.” To prevail, an employee must show: (1) engagement in a protected activity; (2) that the employer knew of the employee’s involvement in the protected activity; (3) that the employee suffered an unfavorable personnel action; and (4) that the protected activity was a contributing factor to the unfavorable personnel action. - Terminating Employee - Terminating Employee Who Violated “Return-to-Work” Agreement Did Not Violate the Americans with Disabilities Act
A carefully drafted return-to-work agreement can set forth a recovering drug addict’s terms of employment and provide a defense to a disability discrimination claim if the employer later discharges the employee for using drugs again. - Consumer Report Information - Federal Trade Commission Issues Rule Regarding Disposing of Employees' Consumer Report Information
The Federal Fair Credit Reporting Act (FCRA) regulates an employer's ability to conduct background checks on employees prepared by third parties, such as professional screening companies, credit bureaus or licensed private investigators. FCRA regulates two particular types of background checks: consumer reports (which are prepared by someone an employer hires to obtain information about a job applicant) and investigative consumer reports (which are based upon interviews with anyone other than the applicant/employee, and about character, general reputation, personal characteristics or mode of living). In December, 2004, Congress amended FCRA by enacting the Fair and Accurate Credit Transaction Act (FACTA). - Elimination of Position - Elimination of Employee's Position During Her Medical Leave Did Not Violate the Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) prohibits employers from retaliating against employees because they have requested or taken a leave protected by the Act. If an employee would have been terminated even if she had not taken or requested any FMLA leave, then her termination will most likely not be retaliatory in violation of the FMLA. 29 C.F.R. Section 825.312(d). This was the situation in Ostermyer v. Toledo Clinic Inc., No. 3:03 CV 7736, 2005 WL 927120(N.D. Ohio, April 18, 2005). - Mass E-Mail - Mass E-Mail Announcing New Mandatory Arbitration Provision Does Not Bind Employees to Arbitration of Their Discrimination and Harassment Claims
To decrease litigation costs and avoid runaway jury verdicts, employers are increasingly looking to arbitrate employees' discrimination and harassment claims. One of the most difficult aspects of instituting an arbitration program is creating a contract which requires employees to arbitrate rather than litigate their complaints. In Campbell v. General Dynamics Government Systems Corp., 407 F.3d 546 (1st Cir. 2005), the First Circuit Court of Appeals, whose jurisdiction includes Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico, recently decided that a company's mass e-mail to its employees announcing a mandatory arbitration program did not create a contract requiring employees to arbitrate their discrimination and harassment allegations. - Unfair Labor Practice - Supervisor's Repeated, Derisive Comments About Employee's Grievances Lead to an Unfair Labor Practice
Under the National Labor Relations Act (NLRA), an employer commits an unfair labor practice when it fires an employee because that employee engaged in protected activity under the Act. The issue in United Parcel Service v. NLRB, No. 04-1049 (6th Cir. May 18, 2005), was whether UPS fired Paul Stimpson, a member of the International Brotherhood of Teamsters, because of his repeated grievances of alleged violations of the NLRA or because of his inappropriate comment to a co-worker. - Employer Decision - Employer's Decision to Fire Employee for Racist Comment Was Not Pretext for Age Discrimination Despite Employee's Later Remorse and Apology for Comment
Establishing a claim of age discrimination under the Age Discrimination in Employment Act (ADEA) usually is a three-step process. An Employee must first establish a prima facie case, which can be accomplished by showing that the employee is 40 years old or older, was qualified for the job, suffered an adverse employment action, and was either replaced by a substantially younger employee or treated less favorably than similarly situated younger employees. If the employee proves these elements, then the employer must state its legitimate business reason for the adverse action. At this point, the employee will only prevail by proving that the legitimate business reason was a pretext, or cover-up, for discrimination. To prove pretext, the employee must show that the reason is not true, did not motivate the decision, or was insufficient to motivate the decision. - Overtime Eligibility - Department of Labor Clarifies Overtime Eligibility for Employees Working for Joint Employers
On April 11, 2005, in a Wage and Hour Opinion Letter, the U.S. Department of Labor recently provided guidance to employers who need to determine the overtime eligibility of employees who work for two related companies. The opinion letter involved a licensed practical nurse who worked at a hospital during the week and at a nursing home on the weekend. The Department of Labor did not allow the employers to separate the hours she worked at each employer when determining whether she was entitled to overtime pay. Instead, it found that the two companies were joint employers.
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