Employer Law Report

EEOC issues fact sheet in response to state bathroom laws

Likely in response to laws recently passed in North Carolina and Mississippi (and being considered in other states, including Ohio), the EEOC has issued a fact sheet regarding bathroom access for transgender employees under federal anti-discrimination law. In the fact sheet, the EEOC takes the position that transgender status is protected under Title VII and, accordingly, employers may not:

  • Deny an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination
  • Condition this right on the employee undergoing or providing proof of surgery or any other medical procedure
  • Avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it)

In addition, the EEOC takes the position that complying with contrary state law is not a defense. So, for example, an employer who imposes bathroom access as permitted by North Carolina law may find itself in the EEOC’s crosshairs for sex discrimination under federal law.

The word “or” might render your non-compete worthless

The Northern District of Ohio recently refused to grant a Temporary Restraining Order (TRO) or Preliminary Injunction against an employee for allegedly violating a non-compete because the court said the agreement was written in the disjunctive. Alloy Bellows & Precision Welding Inc., v. Cole, Case no. 1:15CV494 (N.D. Ohio, April 22, 2016).

The claim was brought by Ohio corporation Alloy Bellows that manufactures “bellows assemblies,” which are highly specialized components of machines used in aerospace, heavy equipment, medical, nuclear, petrochemical, power generation (gas turbine) and semiconductors. Its former business development manager, Defendant Jason Cole, took a job with one of Alloy Bellows’ top competitor, Senior Flexonics. It was undisputed that his position with Senior Flexonics was “virtually identical” to the one he had with Alloy Bellows. Continue Reading

8th Circuit upholds unfair labor practice findings in Jimmy John’s “Sick Sandwich” case

In a 2-1 decision, the 8th Circuit on March 25th in MikLin Enterprises, Inc., v. National Labor Relations Board enforced an NLRB Order finding that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for participating in a poster campaign designed to focus public attention on what they felt was the franchisee’s inadequate sick leave policy. As part of the campaign, the workers hung posters at their shops and then later elsewhere suggesting that customers would not be able to visually tell the difference between sandwiches made by sick and healthy Jimmy John workers.

Noting that its employees were not told they needed to come in to work when they were sick, the franchisee protested that the workers lost their protection under the NLRA because the posters did not accurately describe the franchisee’s sick leave policy. To the contrary, employees were required to wait 24 hours before symptoms disappeared before returning to work. The 8th Circuit majority disagreed, however, stating that the posters “accurately characterized the practical impact” of the policy.

Under established Board law – that phrase is probably an oxymoron at this point, isn’t it? – otherwise protected statements lose that protection if they are made with “reckless disregard of its truth or falsity.” As it relates to the posters, the Jimmy John’s franchisee argued that the posters’ statements that workers “can’t even call in sick” was knowingly false because they knew that they were required to wait for symptoms to subside before returning to work. On the other hand, the 8th Circuit noted that the record created at the ALJ hearing included evidence that employees worked 80% of the time they were sick because they could not obtain a replacement to work for them, could not afford to miss the day of work or both. Alternatively, the court also rejected the Jimmy John’s franchisee argument that the workers’ statements were unprotected because they were disloyal and publicly disparaged its product.

Take Aways:

This dispute arose in the context of a labor dispute arising out of the workers’ efforts to organize at least in part to obtain better sick leave benefits. As a result, the court (and the Board before it) gave the workers wider latitude that they might otherwise have gotten in maintaining the protected nature of their statements. Nevertheless, employers need to be careful before resorting to self-help in these types of situations. Clearly, the Board is taking a much more lenient view of what constitutes protected statements and activity under the NLRA and this decision is an example showing that the courts are according considerable deference to the Board’s conclusions regarding such statements. Because of the deference that Board decisions are due in the courts, employers should not expect the courts to overturn Board findings on protected activity unless those findings are clearly egregious.


Website accessibility case shows big risks to companies

We have reported previously on the emerging trends in litigation over website accessibility. Briefly, Title III of the Americans with Disabilities Act (ADA) requires accessibility for disabled persons to places of public accommodation. Increasingly, disabled persons are pursuing litigation or threats of litigation, arguing that a company’s website which provides access to goods and services must be accessible under the ADA. The law remains somewhat unsettled. Federal courts have reached varying conclusions on the question of whether websites are places of public accommodation and, if they are, what steps are required to make them accessible under the ADA. The U.S. Department of Justice (DOJ) takes the position that websites are places of public accommodation. DOJ has promised to issue guidance on specific steps needed to comply. Although DOJ’s ADA compliance guidelines were initially expected in April 2016, DOJ has pushed the expected ADA compliance guideline timeframe to 2018. Continue Reading

DOL’s final “Persuader Rule” delivers another coup to unions

Thinking about having an employment relations consultant or attorney meet with your managers and supervisors for a union avoidance session? If so, you may want to have it scheduled to take place prior to July 1, 2016. According to a new rule issued by the Department of Labor (DOL), any union avoidance seminars conducted for supervisors or other employer representatives after July 1, 2016 must be reported to the DOL on government-issued forms. Continue Reading

Director of human resources may be personally liable for FMLA violations

What an interesting and challenging time to be a human resources professional. There are the day-to-day challenges such as dealing with management needs, trying to support employee morale, keeping an eye on policy enforcement, legal compliance and workplace investigations. The list goes on. The U.S. Court of Appeals for the 2nd Circuit recently added one more challenge. The Court held that a human resources professional can be held personally liable for her company’s FMLA violations.

The Culinary Institute of America questioned the validity of an employee’s medical support for FMLA time off. In the ensuing communication between company and employee, the company’s director of human resources maintained that the employee’s documentation was not sufficient. The company eventually established a deadline for submitting proper documentation and when the employee did not respond, terminated her for job abandonment.  The employee sued the company and the Director of Human Resources for alleged FMLA and Americans with Disabilities Act (ADA) violations. Continue Reading

Minimum wage exemptions upheld in Ohio Supreme Court case

A divided Ohio Supreme Court held that Ohio’s minimum wage law exempts employees engaged in an executive, administrative or professional capacity, or as outside salespersons, summer camp employees, fishing employees, small publication employees and family farm employees. In Haight v. Minchak, No. 2016-Ohio-1053, two sales representatives challenged the constitutionality of Ohio’s minimum wage statute (R.C. 4111.14)—arguing that the definition of employee in R.C. 4111.14(B)(1) conflicts with the definition in the Ohio Constitution. The Court held that the definitions did not conflict.

John Haight and Christopher Pence were sales representatives for Cheap Escape Company. They were paid by commissions plus a draw. The Company stopped paying or reduced the draw when its sales representatives underperformed. The compensation the underperforming sales representatives received fell below Ohio’s minimum wage. Haight and Pence filed a class action lawsuit alleging that R.C. 4111.14 was unconstitutional and seeking unpaid wages. Continue Reading

Lawyers’ FLSA advice may be discoverable

To avoid an award of liquidated damages in an Fair Labor Standards Act (FLSA) action asserting that a defendant willfully violated the FLSA’s overtime provisions, the defendant must prove that it “acted in subjective ‘good faith’ and had objectively ‘reasonable grounds’ for believing that the acts or omissions giving rise to the failure did not violate the [statute].” FLSA defendants frequently therefore assert that they sought and followed the advice of counsel in assessing whether overtime payments were required under the FLSA, which results in an implied waiver of the attorney-client and attorney work product privileges. The scope of that waiver was subject of a recent United States District Court of the Southern District of New York decision in Foster v. City of New York, 14 Civ. 4142 (SDNY Feb. 5, 2016) and a related case De la Cruz v. City of New York, 14 Civ. 9220 (SDNY Feb. 5, 2016). Continue Reading

Assistant managers’ wage hour battle with Bob Evans Farms settled for $16.5 million

It is not news that class action lawsuits for unpaid overtime are on the rise. A settlement agreement approved recently by the United States District Court for the Southern District of Ohio shows just how costly those claims can be.

In Thorn v. Bob Evans Farms, Inc. the U.S. District Court in Columbus, Ohio approved a settlement between Bob Evans Farms, Inc. (BEF) and a class of 1,566 current and former assistant restaurant managers. The assistant managers had been treated by BEF as exempt from overtime requirements under federal and state law. In the class action lawsuit, the assistant managers argued that they had performed non-exempt duties, including operating cash registers, food preparation and clean-up to such an extent that they were not genuinely exempt from overtime pay requirements. Continue Reading

Update: the EEOC enters the digital age with electronic notice of charges

Earlier this week we reported on the EEOC’s new “digital charge” system. The EEOC has issued a press release announcing it will now, on a nationwide basis, share position statements with charging parties. In the past, many EEOC offices would provide a verbal summary of the employer’s position statement to the charging party but would not share the document with him/her. That has now changed. Apparently the EEOC “may” redact confidential information before providing it to the charging party, so employers should clearly indicate information they consider confidential, including any attachments submitted with the position statement. The policy is effective as of January 1 of this year, so any position statements submitted since then could be shared with charging parties.