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Employers should review their parental leave policies in wake of parental leave class action settlement

With multiple avenues for expanding a family and a plethora of different family models, employers would be wise to re-consider their parental leave policies to suit the needs of the modern family.

In May, a large multi-national corporation settled a class action lawsuit regarding its parental leave policy for $5 million. As written, the employer’s policy gave its employees who were primary care-givers 16 weeks of paid leave, and gave its employees who were non-primary care-givers only 2 weeks of paid leave. According to the lawsuit, the employer had an unwritten policy that made it almost impossible for men to …

#MeToo: Looking to best teaching practices for effective training

When did canned web-based presentations become the norm for harassment, discrimination and other inappropriate workplace conduct training? Companies who rely on pre-prepared, generic materials often find those trainings for HR, management, supervisors and employees to be ineffective, particularly now that #MeToo is a part of our vocabulary. For the employer who has the goal of efficient and effective HR trainings, it is helpful to look to best teaching practices. Educators know that teaching a lesson in a memorable and engaging way will help student retention…algebra or workplace harassment alike. Simply put, face-to-face, interactive training is the most effective way to …

Ohio statutory amendments impacting joint employment claims against franchisors will go into effect on March 20, 2019

Nationwide, many states are amending their employment laws to address the uncertainty of the joint employment doctrine under federal law, as evidenced by the apparent conflict between the recent D.C. Circuit decision in Browning-Ferris Industries of California Inc. v. National Labor Relations Board and the Board’s proposed rules on the subject. In an effort to address this uncertainty, Gov. Kasich, before leaving office in December, signed H.B. 494 into law. Effective March 20, 2019, H.B. 494 amends the definition of “employer” in several Ohio employment statutes to provide that franchisors are not the employers of their franchisees or the employees …

Does your workplace foster a culture of safety? New OSHA memo relaxes rule on drug testing policies and incentive programs

In 2016 we reported on OSHA’s anti-retaliation rule related to the reporting of illnesses and injuries. The rule prohibited employer retaliation against employees reporting workplace injuries and illnesses, and implementation of policies that discourage accurate reporting. At the time the rule was finalized, OSHA clearly indicated it would be interpreted strictly and would affect employer incentive programs and post-accident drug testing policies.

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. OSHA states that it “does not prohibit workplace safety incentive programs or post-incident drug testing.

Sixth Circuit upholds agreement to arbitrate FLSA claims on individual basis

On Aug. 15, 2018, the Sixth Circuit in Gaffers v. Kelly Services, Inc. held that the Fair Labor Standards Act (FLSA) does not render an arbitration agreement that requires claims to be brought individually illegal and unenforceable. Following the Supreme Court’s recent decision in Epic Systems Corp. v. Lewis, which held that a federal statute does not displace the Arbitration Act unless it includes a “clear and manifest” congressional intent to make individual arbitration agreements unenforceable, the court rejected the plaintiff’s arguments that FLSA displaced the Federal Arbitration Act simply by providing for a right to “collective action.” Instead, the …

Sixth Circuit upholds termination of human resources employee for employment application misrepresentations and performance deficiencies

Agreeing with the district court’s assessment that “résumé misrepresentations by a senior human resources professional represent an infraction so egregious as to defy correction by mere counseling or other lesser discipline,” the 6th Circuit on April 23, 2018, rejected an appeal from a summary judgment order on claims of pregnancy, race, and age discrimination and retaliation in Bailey v. Oakwood Healthcare, Inc..

Michelle Bailey, a 40 year old African-American woman, was fired from her position as a senior staffing professional at Oakwood Healthcare, Inc. (Oakwood) on the day she returned from a three-month maternity leave. During her maternity …

Wage and Hour Division announces pilot limited “amnesty” program

The U.S. Department of Labor’s Wage and Hour Division (WHD) has announced a new nationwide pilot program, called the Payroll Audit Independent Determination (PAID) program, which is designed to facilitate resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to the WHD’s website describing the program, the program’s primary objectives are to resolve wage and hour claims expeditiously and without litigation, to improve employers’ compliance with overtime and minimum wage obligations and to ensure that more employees promptly receive any owed back wages.

WHD states that it will implement this pilot program …

DOT amends drug testing rules effective Jan. 1, 2018

In response to the nation’s opioid epidemic, the Department of Transportation (DOT) amended its testing program requirements to require inclusion of four semi-synthetic opioids, hydrocodone, oxycodone, hydromorphone and oxymorphone, to the required drug testing panel. DOT also added methylenedioxyamphetamine (MDA) to the panel and removed methylenedioxyethylamphetaime (MDEA) as a confirmatory test analyte as redundant since MDA is a metabolite for MDEA. Because the added opioids can be legally taken pursuant to a doctor’s prescription, this may result in more initial positives that trigger MRO review and require the MRO to evaluate whether the employee is taking the opioid pursuant to …

Porter Wright offers tailored HR Audits

Porter Wright is pleased to announce that it is now offering customized audits of the specific HR policies and practices you select at custom, fixed-cost or other fee arrangements that will give you certainty about the expense before the audit even begins. Simply choose from the menu of HR audit services we offer and work with one of our labor and employment attorneys to determine a price for those services. Our tailored HR audit allows you to focus on those areas of concern specific to your business, while giving you the certainty and predictability regarding cost that your business requires.…

How employers can help employees after a natural disaster

In recent months we have seen a significant number of natural disasters – from Hurricanes Irma to Harvey to Maria and the massive wild fires crossing Northern California. Our colleague, Abby Brothers, shares the tax-free options employers can use to support their employees and communities. Check out her full post on Employee Benefits Law Report, Federal disaster relief available to employees in aftermath of natural disasters.”…

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. …

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 …

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 …

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 …

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 …

OSHA delays electronic reporting requirement start date

The Occupational Safety and Health Administration (OSHA) announced recently that it intends to delay the initial deadline for compliance with its rule requiring employers to report accident and illness records to OSHA electronically. Under the original deadline, employers with over 250 workers and smaller employers in high hazard industries would have been required to begin electronic filing of certain OSHA-required forms on July 1, 2017. For a more detailed discussion of the electronic recordkeeping rule, go here. That deadline is now off and OSHA has promised a formal notification in the future with more information about revised deadlines.…

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

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.…

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

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 …

Hidden anti-retaliation provisions in OSHA’s electronic reporting rule: How are incentive programs and drug testing policies affected?

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. Jourdan Day explains what this means here. 

In May 2016, we told you about OSHA’s final rule requiring electronic reporting of illnesses and injuries. This rule requires electronic submission of your OSHA logs, and the information provided will be posted on OSHA’s website. However, in the comments about the new reporting rules OSHA addresses anti-retaliation as it relates to the reporting of illnesses and injuries. The anti-retaliation regulations were originally scheduled to take effect Aug. 10, 2016 and …

Ohio’s new law legalizing medical marijuana includes key exceptions for employers

A special thanks to one of our summer clerks, Abigail Chin, for her assistance with this article.

In the wake of Ohio’s new medical marijuana law, you may be thinking, what does it mean for your drug-free workplace policy? Ohio’s new medical marijuana law, H.B. 523, provides targeted exceptions for employers.

Ohio’s law goes into effect in approximately 90 days; however, it is expected that full implementation could take up to two years before the Ohio Department of Commerce, State Medical Board and Board of Pharmacy can establish licensing requirements for growers, processors, testing laboratories, dispensaries and physicians. H.B. 523 …

Managing the heat for employees

Temperatures across the United States are starting to heat up. Employers must be cognizant of the impact these rising temps have on employees who work outside.

First things first. The National Oceanic and Atmospheric Administration (NOAA) put together the following list of symptoms of heat illness and first aid solutions:

  • Sunburn: Redness and pain. In severe cases, swelling of skin, blisters, fever and headaches. Response: Ointments for mild cases if blisters appear and do not break. If breaking occurs, apply dry sterile dressing.
  • Heat cramps: Painful spasms usually in the muscles of legs and abdomen with heavy sweating.

Employers wanting to take full advantage of the Defending Trade Secrets Act should consider including immunity notice in all new and updated confidentiality agreements

As our sister blog, Technology Law Source has reported, on May 11, 2016, President Obama signed into law the Defending Trade Secrets Act (DTSA), which creates a federal trade secret misappropriation cause of action. As noted, businesses have a lot to consider in deciding whether to pursue this new cause of action in federal court when the security of their trade secrets are threatened. Because the DTSA does not pre-empt state laws protecting trade secrets, however, if a federal forum is otherwise appealing, there really is no reason not to pursue a DTSA cause of action.

Employers will be …

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