Employer Law Report

Annie get your gun: Expanded rights for Ohio gun owners

Governor Kasich has signed Senate Bill 199, which prohibits employers from creating or enforcing any policy that would limit an employee with a concealed carry license from storing a firearm in the employee’s locked vehicle while on the employer’s premises. The new law, found at O.R.C. 2923.1210 states:

A business entity, property owner, or public or private employer may not establish, maintain, or enforce a policy or rule that prohibits or has the effect of prohibiting a person who has been issued a valid concealed handgun license from transporting or storing a firearm or ammunition when both of the following conditions are met:

(1) Each firearm and all of the ammunition remains inside the person’s privately owned motor vehicle while the person is physically present inside the motor vehicle, or each firearm and all of the ammunition is locked within the trunk, glove box, or other enclosed compartment or container within or on the person’s privately owned motor vehicle;

(2) The vehicle is in a location where it is otherwise permitted to be.

Thus, so long as an employee keeps his or her firearm and ammunition in a locked compartment of the vehicle while the employee is away from the vehicle, employers may not take any action against the employee for bringing the firearm or ammunition on the employer’s property. The law takes effect on March 19, 2017.

An earlier version of the bill would have added the right to have a firearm in a car in an employer’s parking lot to the list of protected classes against which employers cannot discriminate. In other words, the right to conceal a firearm in the parking lot would have joined race, sex, age, ancestry, religion, national origin, military status and disability as a basis for which employers could not take adverse action against an employee. That language was deleted from the final version. Instead of being added to the employment discrimination law the protection for concealed firearms in parking lots became a stand-alone provision in the statute concerning concealed carry rights.

Takeaways

Employers should review their workplace violence and firearm policies. If those policies currently prohibit firearms in the employee’s locked personal vehicle they will have to be modified consistent with the new law before March 19, 2017. Employers are still free to prohibit employees who do not possess valid concealed carry licenses (or who are otherwise excluded from the licensing requirement) from keeping firearms in their vehicles, even if otherwise in compliance with the law. In addition, employers may still prohibit employees from carrying firearms inside company premises or bringing them out of their privately owned vehicles while on company premises.

Many business interest groups opposed this legislation because it makes access and proximity to firearms at the workplace easier.

Now that it is law in Ohio, employers are well-advised to revisit their workplace violence policies to be sure that they state clearly the prohibitions against violence or threats of violence.

Employer alert: Revised I-9 Form required beginning Jan. 22, 2017

USCIS recently released a revised 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 all new employees. Employers may continue using the I-9 form dated March 8, 2013 until Jan. 22, 2017, when the use of the revised form becomes mandatory. It remains a 3 page form, but there are minor revisions, including a separate supplemental page for a preparer/translator and an “additional information” box on page 2, but there is also a new user-friendly online PDF “smart” version of the form available at http://www.uscis.gov/files/form/i-9.pdf.

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Eleventh Circuit rejects EEOC position regarding reassignment as a reasonable accommodation

Rejecting the EEOC’s position that an employer must reassign a qualified individual with a disability to a vacant position as a reasonable accommodation so long as the individual was minimally qualified for the position, the 11th Circuit on Dec. 7, 2016 held that even disabled workers in need of a reasonable accommodation must compete with other qualified employees for the vacancy. In EEOC v. St. Joseph’s Hosp., Inc., the plaintiff was a nurse who needed a cane for mobility. Because the cane posed a safety hazard in the psychiatric ward where she worked, she was given the opportunity to apply for other jobs, but was not given any preference due to her disability. When she did not obtain any other position at the hospital, she was terminated and the EEOC brought suit on her behalf.

After a jury trial resulted in a defense verdict, the trial court entered an injunction order requiring the hospital to mediate, which failed to result in reinstatement. On appeal, the 11th Circuit expressly addressed the question, “Does the ADA mandate noncompetitive reassignment?” The court concluded that the ADA does not require such preferential treatment of the disabled. In reaching this conclusion, the court relied on the statutory language that includes “reassignment to a vacant position” as part of a non-exhaustive list of items that the term reasonable accommodation “may include.” According to the court, the use of the word “may” implies that reassignment will be reasonable in some circumstances but not others.

The court also noted its well-settled ADA precedent that employers are only required to provide alternative employment opportunities that are reasonably available under the employer’s existing policies. As examples, the court cited prior cases holding that the ADA does not require employers to reassign disabled employees in violation of its governing civil service rules or seniority rights found in a collective bargaining agreement. Similarly, the court did not believe that the hospital had to violate its policy of filling vacancies based on merit. In fact, the court stated:

Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel. Undermining a hospital’s best-qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients.

Finally, the court held that the intent of the ADA is to provide meaningful but equal employment opportunities for the disabled and was never meant to require discrimination against the non-disabled.

Takeaways:

 The St. Joseph’s Hospital decision adds to split in the circuit courts of appeals on this issue. As the court notes in a footnote, it is consistent with decisions from the 5th and 8th Circuits, but is contrary to the decisions of the 7th, 10th and D.C. Circuits, which agree with the EEOC that the reasonable accommodation obligation requires employers to violate their own policies, including those that require the hiring of the best qualified candidates. The 6th Circuit in Hedrick v. Western Reserve Care System and Forum Health has also held that an employee needing reasonable accommodation is not entitled to “preferential treatment” in reassignment.

New CDL rule offers smoother transition to civilian careers for veterans and opportunity to address driver shortage in transportation industry

The American Trucking Association (ATA) estimates that the for-hire trucking industry faced a driver shortage of nearly 48,000 drivers at the close of 2015. The effects of this shortage can be felt across nearly every sector of the U.S. economy with roughly 70 percent of all freight moving by truck. Industry advocates have noted that even a modest improvement in the economy could increase freight volumes and further exacerbate the shortage. Continue Reading

The door may be open for county or municipal government “right-to-work” laws in Ohio

Right-to-work laws limit the “union security” a union can achieve in a collective bargaining agreement with an employer. In states with no right-to-work law, unions can bargain for contract provisions requiring that, as a condition of continued employment, employees must either join the union or at least pay monthly fees to the union for its collective bargaining efforts. In states that have right-to-work laws, that sort of union security provision is illegal. There are 26 states with right-to-work laws currently. Ohio does not have a right-to-work law. Continue Reading

OSHA retaliation rules are going forward

On Monday, a federal judge in Texas refused to issue an injunction stopping OSHA from enforcing certain aspects of controversial “non-retaliation” rules. We reported on the proposed OSHA rules on Oct. 27, 2016. Briefly, the most controversial aspects of the rule are on two points:

  1. The rule would effectively prohibit incentive programs under which bonuses or other rewards are conditioned, at least in part, on the frequency of reported injuries. OSHA says that programs like that are a disincentive to reporting injuries.
  2. OSHA takes the position that drug testing programs that call for drug or alcohol testing automatically after an accident are improper. Instead, OSHA says that to be proper post-accident drug testing must be limited to circumstances where the facts at least suggest the possibility that alcohol or drug abuse played a part.

These two provisions had employers scrambling to review incentive and drug testing programs, and evaluating whether to make changes. Then a number of business interest groups filed a lawsuit in federal court in Texas seeking an injunction to stop these aspects of the rule form being enforced.

As we noted in our October 27 article, OSHA agreed to delay enforcement until Dec. 1, 2016 to allow the Court time to make a ruling on the request for an injunction. In his decision Monday, the Judge concluded that there has been no showing that enforcement of the rules would cause irreparable harm to business interests if they become enforceable now. The fact that the judge refused to issue an injunction at this time does not mean the case is over. If the case is not settled or dropped, the Court will hold a trial and consider the arguments on all of the merits. That could result in the rule being approved by the Court or disapproved at some later date.

The short-term effect of the Judge’s decision is that, as of Dec. 1, 2016, OSHA is free to enforce all aspects of the new rule. That means that in OSHA inspections, companies likely will be asked to produce any drug testing programs and incentive programs they have in place. If those programs run afoul of the rule, OSHA will likely issue citations and insist on policy modifications. Companies should review incentive programs and consider eliminating any aspect which conditions rewards on the rate of reported injuries. Companies should also review drug testing programs and consider revisions so that drug and alcohol testing does not occur automatically in every post-accident circumstance, but only in those where the facts suggest the possibility that drugs or alcohol were involved.

We will continue to watch this issue and report on future developments.

EEOC issues new guidance on national origin discrimination

On Nov. 21, 2016, the Equal Employment Opportunity Commission (EEOC) issued its new and updated Enforcement Guidance on National Origin Discrimination, replacing its 2002 guidance on the subject.

In the guidance, the EEOC defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.” This includes discrimination because of an individual’s “place of origin” such as a country, a former country (e.g., Yugoslavia) or a geographic region closely associated with a particular national origin group (e.g., Kurdistan). Further, a “national origin” or “ethnic” group is a “group of people sharing a common language, culture, ancestry, race and or other social characteristics,” such as “Hispanics, Arabs or Roma.”

Under the guidance, discrimination includes treating persons less favorably because they do not belong to a particular ethnic group, as well as because they do. Employees are also protected from discrimination because they associate with someone of a particular national origin (e.g., by marriage). The EEOC also takes the position that national origin discrimination can be based on an individual’s “perceived” status as a member of an ethnic group. However, as we explained in a recent blog based on the Longoria decision in the Northern District of Ohio federal court, few courts (including none in Ohio) have recognized such a theory of liability. Continue Reading

Texas court enjoins new salary basis rule set to go into effect December 1st

As of yesterday, employers who have not yet fully implemented changes in preparation for the new salary basis increase should put those plans on hold because a Texas federal court issued a nationwide preliminary injunction against the rule while it evaluates the legality of the rule. The salary required for exempt status for executive, administrative, and professional employees  (EAP or white collar employees) will remain at $23,660 or $455 per week. (Employees, of course, must meet the respective duties tests.) Any employers who had planned to raise exempt employees’ salaries to $47,476 or convert them to non-exempt status can place those plans on indefinite hold. We recognize, however, that it may be difficult and bad for employee relations to roll back already announced or implemented salary increases. Each employer should evaluate the financial and good will costs of rolling back salary increases made to comply with the new rule or keeping them in place. Continue Reading

November election results likely will significantly impact labor and employment law in coming years

Now that it is clear that Donald Trump will be the 45th President of the United States, questions are continuously being asked about how the regime change when he takes office in January of 2017 will impact labor and employment law. Acknowledging that any discussion of Trump’s policies before he takes office on Jan. 20, 2017 is purely speculation, it is important for employers to consider the potential implications on labor and employment law. Continue Reading

Decision on whether to block DOL salary basis increase to $47,476 per year expected by Nov. 22

After a hearing in the Eastern District of Texas on a lawsuit by 21 states to enjoin the Department of Labor’s scheduled increase of the minimum salary level for exempt status under the Fair Labor Standards Act (FLSA), the federal judge hearing the case indicated that he will rule by Nov. 22, 2016. As you know, the rule is set to go into effect on Dec. 1, 2016. For those exempt employees with salaries below $47,476, many employers are weighing whether to implement salary increases up to the new threshold or convert the employees to non-exempt status. Non-exempt status would require hours tracking and make the employees eligible for overtime for hours worked over 40 hours per week.

Any employers who have not already implemented or communicated these changes may want to wait until after Nov. 22 when this court decision is expected. We will update you if these efforts to halt the change in the minimum salary basis are successful.

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