Employer Law Report

Workers’ compensation law aiming to reduce appeal time is constitutional

The Ohio Supreme Court has definitively decided that an employee cannot unilaterally dismiss an employer-initiated appeal in a workers’ compensation case; rather, the employer must consent to the dismissal.

After a workers’ compensation claim proceeds administratively before the Industrial Commission, any party may appeal the Commission’s decision to permit the employee to participate in the workers’ compensation system to the Court of Common Pleas. After an appeal is filed, the employee must file a petition/complaint within 30 days.

Regardless of which party files the appeal, the employee is the plaintiff in the workers’ compensation case. While the court case is proceeding on an employer-initiated appeal, the employee continues to receive workers’ compensation benefits. However, should the court reverse the Industrial Commission’s decision and deny the claim, the employer receives a refund of costs previously paid to the employee. Continue Reading

The OFCCP strikes, puts State Street’s pay inequity problem out on Front Street

Well known asset management company State Street Corporation will pay $5 million to settle allegations of pay inequity raised by the Office of Federal Contract Compliance Programs (OFCCP) in an audit. OFFCP alleged that the company paid female executives less than men and black executives less than whites at its Boston headquarters. The landmark settlement agreement is the largest back pay settlement collected by OFCCP since 2015.

By way of background, OFCCP audits federal contractors and subcontractors for compliance with workplace affirmative action and nondiscrimination requirements. OFCCP conducted a compensation analysis of State Street’s downtown Boston office in December 2012. According to OFFCP, that analysis revealed that, since at least December 2010, there were “statistically significant” disparities in compensation between male and female workers and black and white workers even when “legitimate factors affecting pay” such as performance, experience and education were taken into account. Continue Reading

When can an employer be found liable for ‘supervisor’ harassment?

In an opinion issued this week, the Sixth Circuit Court of Appeals (which covers Ohio, Michigan, Kentucky and Tennessee) affirmed dismissal of a case alleging same-sex sexual harassment primarily based on the prompt and effective action taken by the employer in response to the plaintiff employee’s complaint.

Plaintiff (Hylko) and the alleged harasser (Hemphill) worked closely together at U.S. Steel. Hemphill trained Hylko and assigned his duties. Both reported to an area manager.

Hylko claimed that Hemphill harassed him as soon as they started working together, that Hemphill regularly asked Hylko about his sex life and that Hemphill grabbed his buttocks and private parts.

Hylko complained to management, who offered him a transfer to a different area of the plant, which he accepted. Management then met with Hemphill, who admitted some of the harassment. They then gave him a verbal warning, one week suspension and demotion to shift manager and made him take a leadership class. No harassment occurred again after that.

The standard for employer liability for hostile work environment harassment that does not result in a tangible adverse employment action depends typically on whether or not the harasser is the victim’s supervisor. An employer is vicariously liable for a hostile work environment created by a supervisor unless it can prove that (a) the employer exercised reasonable care to prevent and correct promptly any harassment; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. By contrast, an employer is liable for hostile work environment harassment by employees who are not supervisors only if the alleged victim can prove the employer was “negligent in failing to prevent harassment from taking place.” In assessing such negligence, the court will look to such factors as the nature and degree of authority wielded by the harasser and evidence the employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints or effectively discouraged complaints from being filed. In essence, the supervisory status of the alleged results in a shifting of the burden of proof with respect to whether the employer has taken necessary steps to prevent and respond to allegations of harassment.

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Non-union employers may have to allow employees “representation” in some investigation interviews

Many thanks to Arslan Sheikh for his assistance in preparing this post.

Presume your workplace is non-union. You are interviewing an employee about facts that might lead to disciplining her. She tells you she wants a co-worker to sit in on the interview as her representative to advise her. The lawyers that advise the National Labor Relations Board (NLRB) are taking the position that you have to allow it.

Last week, the office of the general counsel to the NLRB issued an advice memorandum that has significant implications for all non-union employers. The memo concludes that an employee in a non-union workplace should be entitled to co-worker representation during an investigatory interview by the company. This is contrary to existing NLRB precedent which holds that representation rights like this do not apply where there is no union representative. As explained below, whether the general counsel’s advice becomes law remains to be seen. But in the meantime, employers are wise to be aware of this advice memo because it will likely influence the way NLRB regional offices act in enforcement proceedings at least for now. Refusing an employee’s request for representation in an interview might result in a local NLRB office issuing a complaint and forcing the employer to fight it out in a hearing. Continue Reading

Paying workers after inclement weather closes businesses

In the wake of Hurricane Irma, many employers have questioned their obligation to pay employees while their businesses have been closed. The answer will be different for employees who are exempt and non-exempt under the federal Fair Labor Standards Act (FLSA).

Under the FLSA, employees who are exempt from overtime requirements must receive their full salary for any week in which the employees perform work, regardless of the number of days or number of hours of work performed in that week. Thus, if an exempt employee only works one day during the week, he or she is still entitled to his or her full salary. When an office is closed for less than a week due to inclement weather, the exempt employee is entitled to his or her full salary, even if the employee does not have any available paid time off.

However, nonexempt employees must be paid according to the number of hours worked during any particular workweek and will receive overtime for any hours worked above 40 during a week. If an office is closed because of inclement weather, the FLSA does not require employers to compensate nonexempt employees who are not performing work during the closure. Any paid time off used by nonexempt employees is not working time and will not count toward hours worked for purposes of calculating overtime. Nonexempt employees must perform more than 40 hours in a workweek to be paid overtime.

In addition to federal law requirements, employers should review any inclement weather or other policies to see if they afford employees greater rights than provided under law. Employers should also check their policies to ensure they are consistent with or more generous than federal and/or state law. If you have employees outside of Florida who are affected by business closings due to weather, check your state law for different or additional obligations.

President Trump nominates Peter Robb to serve as general counsel to the National Labor Relations Board

Many thanks to Arslan Sheikh for his assistance in preparing this post.

Last week, President Trump nominated Peter Robb, a management-side labor attorney, to serve as general counsel to the National Labor Relations Board (NLRB). As the top lawyer for the NLRB, the general counsel has a great many responsibilities, which include giving advice to the regional offices of the NLRB concerning enforcement issues. The advice is often communicated in advice memoranda. These advice memos are critical because they advise the regional offices on how to interpret and to enforce labor law. It is the regional offices that process unfair labor practice charges and union representation petitions. As a result, the office of the general counsel can have a significant influence on what employers can expect to face in NLRB enforcement proceedings.

If Robb is confirmed by the Senate, which is likely, he will take over when current General Counsel Richard Griffin’s four-year term expires on Oct. 31, 2017. Based on his professional background and experience, there is reason to expect that Robb will take a more employer-friendly position on many labor law issues than his predecessors did during the Obama administration. For example, Robb has been critical of the NLRB’s efforts to shorten the timeframe in which an employer can react to a union election petition. Continue Reading

Workers’ compensation law changes

Recently, Gov. Kasich signed into law the workers’ compensation budget. In addition to funding the Ohio Bureau of Workers’ Compensation (BWC), the bill enacted a number of substantive changes to the law. These changes are effective Sept. 29, 2017. Below are some of the significant amendments impacting Ohio employers:

  • Decreases statute of limitations: For claims with dates of injuries on or after Sept. 29, 2017, injured workers must file a claim application within one year of the date of injury. This is a reduction from the current two year time limit.
  • Extends deadline to file court appeal if settling claim: The new law extends the time to appeal a final ICO order to the court of common pleas from 60 days to 150 days if the parties file a “notice of intent to settle” the claim within 30 days of receipt of the appealable order.
  • Prohibits payment of compensation to incarcerated dependents: Previously, dependents were eligible to receive benefits even if incarcerated. Further, this law applies to incarcerations, regardless of whether in jail or prison.
  • Permits the BWC to waive 90 day examinations: For state-funded employers, typically the BWC schedules an examination to evaluate an injured worker’s extent of disability after 90 days of being off work. Now the BWC can waive that examination unless the employer objects.
  • Increases amounts included in handicap reimbursements: Settlement amounts are treated as a reducible cost for handicap reimbursements.
  • Dismisses PPD applications: The BWC may now dismiss C-92 applications if an injured worker fails to attend a PPD examination. Previously these claims were suspended, thereby tolling the statute of limitations.
  • Raises the maximum attorney fees for a successful court appeal to $5,000.

Most of these changes impact claims with dates of injuries occurring on or after Sept. 29, 2017. Employers should double check to determine whether rules governed by these new amendments apply or whether the former rules apply.

Texas district court strikes down Obama DOL’s proposed overtime rule

Many thanks to Arslan Sheikh for his assistance in preparing this post.

Last week, a federal judge in Texas struck down a proposed Obama-era rule that would have expanded the number of workers who qualify for overtime pay under the Fair Labor Standards Act (FLSA).

The proposed rule

In 2016, the Obama administration’s Department of Labor (DOL) planned to implement a new rule that would have more than doubled the minimum salary threshold for “exempt” status under the FLSA from $23,660 to $47,476 per year. Under the DOL’s proposed rule, an employee who made an annual salary below $47,476 would have been entitled to overtime pay for all hours worked beyond 40 a week. We last reported on the proposed salary increase in November of 2016, when federal court Judge Amos Mazzant of the Eastern District of Texas issued a nationwide preliminary injunction against the DOL’s rule. Our blog post outlines the Texas court’s holding and rationale.

What happened this week?

On Aug. 31, Judge Mazzant issued another decision, striking down the Obama administration’s proposed salary threshold rule. As a result, the minimum salary for exempt status under the FLSA will remain, for the time being at least, at $23,600.

Judge Mazzant held that the DOL exceeded its authority by issuing the proposed rule because the department focused too heavily on employees’ salary-levels, rather than their job duties, to determine if they were exempt from overtime under the FLSA. Judge Mazzant struck down the rule, holding that because the DOL’s proposed rule would have doubled the annual salary threshold from $23,660 to $47,476, it would have made salary-level the predominant factor in determining who is exempt from overtime under the FLSA. It should be noted, however, that Judge Mazzant did not rule on the general lawfulness of a salary-level test; he only evaluated the salary-level test the DOL proposed in this instance. Continue Reading

Employer alert: Revised I-9 form required beginning Sept. 18, 2017

United States Citizenship and Immigration Services (USCIS) is again releasing a new and updated version of Form I-9, the Employment Eligibility Verification document. Since November 1986, all U.S. employers have been required to complete and retain the I-9 for new employees. The most recent version of the form went into effect on Jan. 22, 2017, but, for some unknown reason, USCIS is now issuing another version. This new version will be mandatory as of Sept. 18, 2017. The easiest way to identify the new form is by the date (07/17/17) noted in the bottom left corner; the prior version was dated 11/14/2016.

A couple of points to bear in mind:

  1. The new I-9 must be used for any new employees hired on or after Sept. 18, 2017. There is no need to complete the new form for any current employees, and employers should continue to follow existing storage and retention rules for all of their previously completed Forms I-9.
  2. The new form has the same expiration date as the prior version—08/31/2019—so employers should be careful to use the proper version of the form with 07/17/17 noted in the bottom left corner.

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Courts in Massachusetts and Rhode Island permit medical marijuana users to pursue disability discrimination claims

Recent decisions from the Massachusetts Supreme Judicial Court and a Rhode Island Superior Court have held that a discharged employee and a rejected applicant, both of whom tested positive for marijuana, may pursue disability discrimination claims under state law. These are among the first decisions issued that address whether employers have a state law obligation to reasonably accommodate the medical marijuana use of their disabled employees and applicants.

Because marijuana use – whether for medicinal or recreational purposes – remains unlawful under federal law, employers have no obligation under the Americans with Disabilities Act to reasonably accommodate its use by disabled employees or applicants. But what about in states, including Ohio, where medicinal marijuana use is legal under certain circumstances? Is there an obligation to reasonably accommodate marijuana use under state disability discrimination law? Is an employer that takes an adverse action against an applicant or employee who is a medical marijuana user engaging in disability discrimination in violation of state law? It appears that the answer to these questions, at least in Massachusetts and Rhode Island, is yes. For the reasons discussed below, Ohio may be different. Continue Reading

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