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Employer Law Report

U.S. Supreme Court grants certiorari in a case challenging the constitutionality of fair share fees for public-sector unions

Posted in Labor Relations

In what looks to be an ominous development for public-sector unions, the United States Supreme Court, on June 30, 2015, granted a petition for certiorari by the plaintiffs in Friedrichs v. California Teachers Association, a case out of the Ninth Circuit challenging the constitutionality of requiring public-sector workers who opt out of union membership to still pay union dues as part of “fair share fee” arrangements in collective bargaining agreements. It is ominous because a little over one year ago in the Supreme Court’s 2014 decision in Harris v. Quinn, Justice Alito wrote a majority opinion that blasted Abood v. Detroit Board of Education, the 1977 Supreme Court decision that was the seminal case upholding the constitutionality of fair share fees in the public sector. In Harris, Justice Alito noted that Abood rested on “questionable foundations”, but since Abood was not directly at issue in Harris (rather, the defendants in Harris were arguing for an extension of the holding in Abood), the majority did not address whether Abood should be overruled. In contrast, in Friedrichs, the validity of Abood has been directly challenged and it appears the Supreme Court is now willing to revisit Abood and decide whether forced fair share fees for public-sector unions should now be deemed unconstitutional. Continue Reading

Proposed FLSA regulations greatly expand overtime coverage

Posted in Wage & Hour

Today, the Department of Labor announced a proposed rule that would extend overtime pay to an additional 5 million Americans.  Currently, those executive, administrative, professional, outsides sales, and computer employees who make above $23,660 annually are exempt from the minimum wage and overtime requirements under the Fair Labor Standards Act (FLSA). Under the proposed regulation, the salary threshold for white collar exempt employees’ pay would more than double to $50,440, or 40th percentile of weekly earnings for full-time salaried employees in 2016. The regulations also seek to increase the total annual compensation requirement needed to exempt highly compensated employees to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers, or $122,148. Finally, the rules propose to establish a mechanism for automatically updating the salary and compensation levels going forward. The department is also requesting comments on the proposed duties tests and the possibility of including nondiscretionary bonuses to satisfy a portion of the standard salary requirement, but has not yet proposed language on this issue. The proposed rules are the result of a Presidential Memorandum sign on March 13, 2014 by President Obama directing the Department of Labor to update the regulations defining which white collar workers are protected by the FLSA’s minimum wage and overtime standards. 79 FR 18737 (Apr. 3, 2014). For a complete copy of the proposed rules, visit http://www.dol.gov/whd/overtime/NPRM2015/OT-NPRM.pdf.

Transgender status may not be a protected class, but lawsuits involving transgender employees are permitted to proceed

Posted in Other Articles

Caitlyn Jenner has dominated the national public interest stories and social media of late. However sensational the news has made this particular story, the issues surrounding transgender individuals are increasingly impacting employers.

Recently, the Eastern District of Michigan permitted one of the first sex-discrimination cases over a transgender employee’s firing to proceed. The Court refused to dismiss the case despite the fact that transgender persons are not a protected class under Title VII, finding instead that transgender employees are like other employees who are permitted to sue their employers over sex stereotypes. The Eastern District of Michigan is part of the Sixth Circuit and should this case proceed to the Sixth Circuit upon appeal, its decision would be binding upon Ohio employers as well as Michigan employers.

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc, the U.S. District Court Eastern District of Michigan Southern Division, Amiee Stephens, a transgender woman, had been employed with R.G. & G.R. Harris Funeral Homes, Inc. in Michigan since October 2007 as a Funeral Director. She was hired and proceeded to work identifying as a male employee. On July 31, 2013, Stephens informed her employer and co-workers in a letter that she was undergoing a gender transition from male to female and would begin dressing in appropriate female business attire at the workplace.  According to the Complaint, on August 15, 2013, her employer fired her, telling her that what she was “proposing to do” was unacceptable.

On behalf of Stephens, the EEOC brought an employment discrimination lawsuit against the Funeral Home, asserting the that the Funeral Home’s decision to fire Stephens was motivated by sex-based considerations and violated Title VII. Specifically, the Complaint alleged that the Funeral Home fired Stephens because of Stephens’ transition from male to female and/or because Stephens did not conform to the Funeral Home’s sex or gender based preferences, expectations or stereotypes. The key allegation was that the termination was based on gender stereotypes. The EEOC also alleged that the Funeral Home engaged in an unlawful employment practice in violation of Title VII by providing a clothing allowance to male employees and failing to provide a similar allowance to female employees because of their sex. Continue Reading

Check out the Summer forecast for your workplace at Porter Wright’s Employer Law Forecast

Posted in Traps for the Unwary, Workforce Strategies

Almanac - summer
Summer is here! That means it’s time for Summer picnics, Summer jobs and the Summer heat. Is your workplace prepared? To be sure, check out our tips for employers on these and other Summer issues you may be facing:

Hiring Minors Workers' comp and summer outings
summer holiday paymanaging the heat

Check out the Forecast and sign up for seasonal updates!

OFCCP posts sample affirmative action plans for individuals with disabilities and veterans

Posted in EEO

The Office of Federal Contract Compliance Programs (OFCCP) recently posted sample affirmative action plans (AAPs) for individuals with disabilities and veterans to its website, available here.

The forms should be helpful guidance for companies who are federal contractors and subcontractors who are looking to comply with new regulations that took effect on March 24, 2014 but are only now being integrated into AAPs that were already in existence on the regulations’ effective date. Many contractors and subcontractors are incorporating or incorporated these regulatory changes into their annual AAPs in 2015 for the first time.

The samples are designed to be used by contractors with less than 150 employees because the sample AAPs utilize EEO-1 categories for job groups. In reviewing the samples, it is easy to see how OFCCP expects that affirmative action plans should look for larger contractors under the new regulations. Obviously, there is no one right way to prepare an affirmative action plan—which OFCCP recognizes. And both OFCCP and we agree that AAPs should be customized to reflect organizational structure, policies, practices, programs, and data. The AAP process should not be a fill-in-the-blank exercise.

The samples posted are “transition year” AAPs. Because the new regulations require analysis of hiring and applicant data on individuals with disabilities and veterans for the past 3 years, the first 3 years of AAPs implementing the new regulations will involve incomplete data because contractors were under no obligation to have collected this data prior to March 24, 2014. The samples reflect that reality. OFCCP promises updated samples will be posted showing how contractors should utilize and analyze a full four years of hiring and applicant data.

On the same webpage, OFCCP also maintains a sample AAP for Executive Order 11246 that was first posted in 2004.

DOL has issued new FMLA forms

Posted in Leave Administration

If you are one of the many employers that uses the FMLA forms issued by the Department of Labor, be aware that the Department has issued new forms. You should begin using the new forms effective immediately. Here are links to all of the new forms:

Substantively, the new forms are very similar to the old forms. The main change is that the new forms contain language regarding genetic information in order to comply with the Genetic Information Nondiscrimination Act (“GINA”).

Employee’s testimony about hours worked is enough evidence to get to trial

Posted in Wage & Hour

In another example of how easy it is for an employee to get to trial on a claim for unpaid overtime, in Moran v. Al Basit LLC, 14-2335 (6th Cir. 2015), the Sixth Circuit Court of Appeals this week reversed a district court decision granting summary judgment for the employer on a former employee’s Fair Labor Standards Act claim. Most notable about the decision is that the only evidence presented by the employee in support of his claim was his own uncorroborated testimony.

Jeffrey Moran was employed as a mechanic at an auto repair shop from summer 2011 to spring 2013. He was paid $300 a week plus “a little extra” as a bonus on a few occasions, but he was never paid any overtime pay. Moran claimed that he worked 65 to 68 hours a week.  His testimony was not based on any written records of his hours worked. Rather, it was based on his imprecise recollections of the number of hours he generally worked each week. His former employer defended against Moran’s claim by pointing to timesheets that were created by one of the owners, who watched security camera footage each day to determine his employees’ arrival and departure times. Although Moran had a different schedule each week, these timesheets almost always reflected exactly 30 hours of work. Additionally, the manager who worked with Moran testified that Moran never worked over 30 hours a week.

The Court posed the issue in the case very succinctly: Where a former employee has presented no other evidence, is his testimony alone sufficient to defeat his former employer’s motion for summary judgment?  Its answer was also very succinct: Yes. The Court found that Moran’s testimony by itself was sufficient to create a genuine issue of material fact that has to be resolved at trial by a jury. He did not need to recall his hours worked with specificity, and his testimony was sufficient to contradict evidence offered by his former employer.

This case is troublesome for employers because it suggests that any non-exempt employee who claims to have worked more hours than were recorded merely has to testify that the employer’s records are incorrect to avoid summary judgment and make it to trial. If that suggestion is true, then there is little employers can do to protect themselves. However, the employer in Moran was certainly at a disadvantage in the litigation because of the odd, and arguably self-serving, manner in which its employees’ time was recorded.  Employers should require that employees complete their own timesheets and certify that the timesheets accurately reflect the hours they worked.  While meticulous, certified time records may not protect an employer from all claims for unpaid wages, they will allow the employer to make the best defense possible.

H-4 dependent spouses eligible for U.S. work authorization

Posted in Immigration

Effective May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin processing applications to grant employment authorization for certain H-4 dependent spouses of H-1B nonimmigrant workers.  The application for employment authorization (Form I-765) must be submitted to USCIS, in paper form only, with the filing fee of $380 and supporting documents showing eligibility for work authorization.

Eligibility for this benefit is limited to spouses of H-1B workers who have started the employment-based lawful permanent resident (“green card”) process. To obtain an H-4 employment authorization document (EAD), the H-1B spouse must either: 1) be the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140), or 2) have been granted H-1B status beyond the six-years based on Sections 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act (AC21) (i.e. have a PERM labor certification filed more than 365 days before the expiration of the initial six-year H-1B period or have an I-140 petition pending for 365 days).

There are several factors to consider before an H-4 spouse should apply for the EAD. One, an applicant must include evidence showing that he or she is currently in H-4 status and that the H-1B worker also is maintaining their H-1B status. Two, employment authorization is limited to spouses, not H-4 dependent children. Three, the EAD will be valid only for the current period of authorized H-4 status. Four, the H-4 spouse is not authorized to work until they receive the approved EAD. Five, once granted employment authorization, it is unrestricted and the H-4 spouse can work for any employer.

Additionally, premium processing of the I-765 application is not available, and current processing times for EADs are approximately three to four months. However, USCIS announced that it is suspending premium processing of H-1B petitions requesting an extension of status for current H-1B workers in order to focus on processing H-4 EADs. This may help reduce current processing times. Further information regarding the H-4 EAD process has been issued by USCIS and is available here.

There also are uncertainties regarding continued eligibility for the EAD after it has already been issued. Bear in mind that an approved EAD may become invalid if the H-1B worker fails to maintain status. By operation of law, the spouse also fails to maintain H -4 status, and USCIS may seek to revoke the EAD. Further, if the H-4 spouse is eligible for the EAD based on an approved I-140 petition, but that petition is subsequently withdrawn by the employer, the H-4 spouse may still qualify for this benefit provided the H-1B worker has been approved for an extension of status beyond six years.

Finally, there is a lawsuit currently pending in the District of Columbia federal district court (Save Jobs USA v. DHS) challenging the H-4 EAD rule. As of today, no decision has been issued by the court, but if it grants the injunction requested by the plaintiffs this would stop, at least temporarily, the filing of H-4 EAD applications.

FMLA Leave: sometimes, it is about putting the pieces together

Posted in Leave Administration

Finding that the circumstances surrounding the plaintiff’s initial absence from work and his doctor’s note were enough for a reasonable jury to find that his employer was on notice of a request for FMLA protections, the Sixth Circuit Court of Appeals reversed the district court’s decision granting summary judgment to the employer in Festerman v. County of Wayne, 14-1950 (6th Cir. 2015). The court also found that there was sufficient evidence to permit a reasonable jury to find that the plaintiff was constructively discharged in retaliation for seeking FMLA leave. As a result, the case was remanded back to the district court for trial.

Robert Festerman was employed with Wayne County as a deputy in the Wayne County jail, which was managed by the Wayne County Sheriff’s Office, for about five years. The deputies were regularly scheduled for mandatory overtime, which they were not permitted to refuse. Any deputy who failed to report for overtime assignments would receive a Conduct Incident Report (“CIR”). On March 3, 2012, Festerman began having chest pains and shortness of breath during his shift. He was transported to the hospital by ambulance and his sergeant filed an incident report regarding Festerman’s medical issue the same day.

Festerman returned to work several days later with an injury report and a doctor’s note which stated he was to limit working hours to 8 hours per day. Festerman’s doctor also prescribed medicine for his anxiety disorder. Wayne County accommodated Festerman’s medical request of no overtime for several weeks; however, on March 29, 2012, the Sheriff’s office began denying all medical requests for no overtime work, and began issuing CIRs to all deputies who refused to work overtime shifts.

The next week, Festerman received three CIRs for refusing overtime work. Commander Gatti recommended Festerman be referred for administrative review for failing to follow a direct order. Wayne County also modified Festerman’s job description—increasing the minimum number of hours in a workweek from 40 hours to 40.5 hours and making mandatory overtime an essential function of the position.

In mid-April, Festerman spoke with two human resources employees regarding the CIRs. Festerman alleges he was advised to complete all necessary paperwork for FMLA intermittent leave. Festerman inquired about whether the medical note submitted in March was sufficient, and alleges he was told it was. Festerman received the leave of absence packet, and submitted the completed forms to Wayne County within a couple of weeks. Several days after submitting the FMLA paperwork, the HR representative sought clarification from Festerman’s doctor regarding his work schedule and workday shifts.

Alleging that he and other deputies with medical issues were being harassed, Festerman resigned his employment on June 20, 2012, before the HR representative received a response from his doctor.

The Suit

Festerman filed suit in the District Court on April 25, 2013, alleging FMLA interference and retaliation. Wayne County filed a motion for summary judgment, asking the court to dismiss the case, which the court granted in June of 2014.

The Appeal

Festerman appealed to the Sixth Circuit Court of Appeals. Focusing on the FMLA interference claim, the court examined whether the district court erred when it granted the motion regarding the FMLA interference claim. The court examined whether the medical note from Festerman’s doctor was sufficient notice to trigger FMLA protections, and found that a reasonable jury could conclude that it was.

Although the court found Festerman’s doctor’s note did not reveal the condition that gave rise to the overtime limitation or any additional prescribed treatment, it disclosed a requirement of limiting the number of hours Festerman could work in a day. The note coupled with the circumstances surrounding the initial qualifying leave—the serious health-related incident at work which required he be transported to the hospital, were enough to provide the employer with notice that a potential FMLA-qualifying condition might exist.

The court found Festerman had raised genuine issues of material fact as to whether he satisfied the FMLA notice requirements on March 12, 2012.


Even when employees have not explicitly asked for FMLA leave, employers should err on the side of providing FMLA benefits when the circumstances suggest that the employee might be eligible. Employers should also train human resources representatives and supervisors how to recognize and respond to issues that might suggest that FMLA leave is being sought.

Renovating Your Workplace: Employment Relations Best Practices for HR Professionals

Posted in Events




Join us May 21, 2015

Tricks of the Trade: How the Pros Deal with an FMLA Abuser
Attendees will hear key strategies for managing the primary situations in which FMLA abuse by employees occurs, learn how to counteract that abuse within the confines of the law, and how to avoid pitfalls when doing so. Of particular focus will be how to use the provisions of the FMLA to the employer’s advantage to legally and permissibly root out abuse and fraud by employees.

Danger Zone: Avoiding the 10 Most Common Mistakes Under the FLSA
Employer compliance with the Fair Labor Standards Act continues to be one of the most litigated areas in employment law. This session will address the 10 most common mistakes made under the FLSA and key takeaways to keep your workplace out of the danger zone.

What’s in Your Toolbox?
Defining a Blueprint for Your HR Decision-Making Process to Reduce Risk: As a busy HR Professional, you need to make sure you have the right tools in your toolbox and a solid blueprint for success. One wrong move can put your business at risk. In this session, we will train your HR reflexes to help you navigate the decision making process effectively. We will help you manage each important step, focusing on workplace investigations and other fact-gathering efforts, best practices for making fair and defendable decisions, and the importance of documentation along with the way.

Please RSVP by May 18th to Andrea Wise at awise@ohiochamber.com or 614.228.4201

Thursday, May 21, 2015
Registration: 8:15am – 9:00am
Seminar: 9:00am – 12:00pm

The Dayton Marriott
1414 South Patterson Blvd.
Dayton, OH 45409

Dave Croall and Rachel Burke