Employer Law Report

Tag Archives: workforce strategies

‘Tis the Season for Holiday Workplace Issues. Day 4 – Holiday Pay and How Not to Get Scrooged by the FLSA

Many employees believe they are entitled to holiday pay, even if they do not work on the holiday. This is not the case. In fact, neither the Fair Labor Standards Act (“FLSA”) nor most state laws, including Ohio, require a private employer to pay hourly employees for not working on holidays (federal or otherwise).

Holiday pay is typically considered a fringe benefit and is a matter of agreement between an employer and an employee (or the employee’s union representative). However, please note that this does not apply to salaried, exempt employees who get paid for holidays, even ones they do …

‘Tis the Season for Holiday Workplace Issues. Day 3 – “Holiday Attire” Does Not Include “Beer Goggles”

Often the question on everyone’s mind when it comes to holiday parties is “Will alcohol be served?” For employers this is a big decision and, depending on where the holiday party is held and how it is contained, one that may expose an employer to liability. For the most part, whether an employer can be held responsible for alcohol-related incidents at or after company-sponsored events depends on the state in which the party is held and the circumstances surrounding the party.

First things first: If the event involves a business purpose that can be considered to have a direct effect …

‘Tis the Season for Holiday Workplace Issues. Day 2 – Being Inclusive Without Being A Grinch

Religion is also a hot-button workplace issue in December because so many different religious groups celebrate different holidays in December. For example: Christians commemorate the birth of Jesus at Christmas; Buddhists celebrate Buddha’s Enlightenment with Bodhi Day; Jewish people celebrate Hanukkah, the Festival of Lights; African-Americans celebrate Kwanzaa, Muslims celebrate Eid al-Adha, or the Feast of Sacrifice; Seinfeld enthusiasts celebrate Festivus, and there are many others.

Federal and state laws prohibit discrimination and/or harassment on the basis of religion. This means that an employer cannot treat persons of different religions differently or appear to favor one religion over another. …

‘Tis the Season for Holiday Workplace Issues. Day 1 – Avoiding Holiday Party Liability When the Office Santa Tries to Teach His Employees a Few “Reindeer Games”

As much as everyone loves them, the holidays create increased risk of employer liability and can result in a long list of legal problems for an unprepared employer. As our holiday gift to you, we’ve put together our top five holiday headaches for employers, which will be provided to you in a week-long series starting today.

Numero uno on our list: Sexual harassment at the office holiday party. Who doesn’t have at least one inappropriate office holiday party story? If you don’t, you’ve at least heard a couple doozies. The mix of sparkly outfits, tasty snacks, free-flowing libations and people …

United States Supreme Court: A Challenge To The Enforceability Of A Non-Competition Agreement Must Be Presented To The Arbitrator, And Not A Court, If The Contract Contains An Arbitration Provision

In Nitro-Lift Technologies, L.L.C. v. Howard, the U.S. Supreme Court this week held that if a contract contains an arbitration provision and there is a challenge to the validity of the contract, it is for the arbitrator and not a court to hear that challenge. The case is important for employers because the challenge was to the validity of a non-competition agreement. More specifically, the Supreme Court held that if a contract contains an arbitration provision, it is up to an arbitrator, and not a court, to determine whether the non-competition provision of the contract runs afoul of a …

Ohio Federal District Court Rejects Public Policy Wrongful Termination Claim Against Private Employer Based On First Amendment

The summary judgment decision issued on October 31st by Ohio federal district court judge David Dowd in Barnett v. Aultman Hospital contains important reminders for both private employers and their employees. For employers, there is the reminder that they are not bound by the First Amendment’s protections for free speech. And for employees: Always remember to confirm that your supervisor actually has been fired before going to Facebook to celebrate.

In January 2011, after receiving the erroneous information that her supervisor had been fired, the plaintiff, Wendy Barnett, a registered nurse at Aultman Hospital sent an email through Facebook to …

Ohio Supreme Court Holds that Employee Not Wearing PPE Did Not Amount to a Deliberate Removal of an Equipment Safety Guard and Could Not Establish an Intentional Tort Claim

In Hewitt v. L.E. Myers Co., 2012-Ohio-5317, the Ohio Supreme Court held last week that protective gloves and sleeves are “personal protective items” that an employee controls and not equipment safety guards for purposes of stating a cause of action under Ohio’s intentional tort statute, which provides an exception to an employer’s workers’ compensation immunity. The Court also clarified that an employee claiming that his employer removed a safety guard—which creates a rebuttable presumption of intent to injure under the statute—must establish that the employer made a deliberate decision to lift, push aside, take off, or otherwise eliminate the …

Not So Fast … CFPB Issues Revised Forms for FCRA Compliance by January 1, 2013, First Ones Contained Typos and Other Errors

As we reminded you last month here, the Consumer Financial Protection Bureau ("CFPB"), the agency that has enforcement responsibility over the Fair Credit Report Act ("Act"), revised the forms which employers must use to comply with the FCRA, effective January 1, 2013. There was only one little problem with the forms the CFPB provided for use: They contained various typos and technical errors that the CFPB now has recognized in its Supplementary Information in the November 14, Federal Register Notice.

The forms at issue:

  • The Summary of Consumer Identity Theft Rights;
  • Summary of Your Rights Under the

Complying with the FCRA Amendments Before January 1, 2013 – a Step-By-Step Guide

By now, you should know that the Equal Employment Opportunity Commission ("EEOC") has issued “Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions”, which is designed to restrict criminal background checks by employers, but you may not know that enforcement responsibility for the Fair Credit Reporting Act ("FCRA") has been transferred from the Federal Trade Commission to the recently created Consumer Financial Protection Bureau ("CFPB").

The FCRA, of course, is the federal law that imposes requirements on employers who use third party Consumer Reporting Agencies ("CRA’s") to obtain “consumer reports" (i.e., background check, reference check, …

Senate Bill 383 is an Ohio Employer’s Wish List

Senate Bill 383 is an extremely employer-friendly piece of legislation that was introduced earlier this week in the Ohio state Senate. The bill seeks to overhaul the Ohio’s employee-friendly employment discrimination laws, statutory and common law, and proposes the following non-exhaustive list of significant amendments:

1. Limits Definition of Employer and Excludes Managers and Supervisors

Currently, the definition of "employer" in Ohio means "any person acting directly or indirectly in the interest of an employer." Thus, unlike under Title VII, Ohio law, as interpreted by the Ohio Supreme Court, subjects managers and supervisors to personal liability. This interpretation not only …

What Ohio Employers Need to Know About Employees Taking Time Off to Vote

Election Day will soon be upon us, and with that comes some common questions from employers about what they must do regarding employees who take off work or arrive late to work to vote.

What is an Employer Prohibited from Doing? Ohio Revised Code §3599.06 prohibits employers from discharging or threatening to discharge an employee for taking a “reasonable amount of time to vote.” The law further prohibits employers from inflicting or threatening to inflict any injury, harm, or loss against an employee to induce an employee to vote or refrain from voting for or against any person, issue or …

Does the Use of Subjective Criteria in a RIF Show Discrimination? The Sixth Circuit Says Not Necessarily

Charlotte Beck had been employed with Buckeye Pipeline Services Company ("Buckeye") for over 16 years as a 12-hour operator. In 2009, however, Buckeye underwent a company-wide reduction in force. Buckeye created a "design team" to reform the organizational structure of the Company and implement a team-based leadership model that would be used going forward. The design team created a new performance evaluation system, which required at least two people with first-hand knowledge of the employee to rate the employee and cite specific examples of behaviors that supported the grade. Any employee who did not receive a rating of 60 points or higher …

Video Interview: Discussing the 6th Circuit’s Ruling on Medical Marijuana Firing with LXBN

Following up on my post on the subject, I had the chance to speak with Colin O’Keefe of LXBN regarding Casias v. Wal-Mart Stores, in which the Sixth Circuit Court of Appeals ruled that Wal-Mart’s firing of an employee for medicinal marijuana use is lawful. In the brief interview I explain the background of the case, why the court arrived at the ruling it did and what lessons it holds for employers. 

One Day You’re In, the Next You’re Out: A Policy-by-Policy Analysis of the Fallout for Employer Policies in the Wake of the NLRB’s Decisions in Costco and EchoStar

Following closely after the NLRB’s first social media decision in Costco Wholesale Corporation (NLRB Case No. 34-CA-012421) just weeks ago, an ALJ for the Board has issued a mammoth 43 page decision in EchoStar Technologies (NLRB Case No. 27-CA-066726) striking down numerous employer policies that in his opinion unlawfully chilled employees’ rights to engage in protected concerted activity.

This post takes a look at the policies challenged in the EchoStar decision and summarizes where employers stand now.

To understand the NLRB’s recent decision in EchoStar, it is important to first understand where the NLRB is coming from. When reviewing …

Slap Happy Celebration of Work Accomplishment Not Severe or Pervasive Enough for Sexual Harassment or Retaliation Claim

Sandra Williams was a sales associate for a timeshare company in Virginia Beach. After the completion of a difficult sale, Williams’s supervisor slapped her on the buttocks. Williams reported the slap to management and complained that it offended her and embarrassed her. Upper management directed human resources to investigate. After the investigation, the Company concluded that the supervisor’s conduct was inappropriate but not a violation of the Company’s harassment policy. It was the only such incident involving the supervisor, and even Williams acknowledged that it was not sexual in nature. As a result, the supervisor was admonished about the behavior.…

It’s High Times for Employers: The Sixth Circuit Holds Michigan Employers Can Say Nope to Dope

The United States Court of Appeals for the Sixth Circuit ruled in Casias v. Wal-Mart Stores, that the Michigan Medical Marijuana Act ("MMMA") does not regulate private employment and, therefore, did not protect Joseph Casias, a Wal-Mart worker authorized to use marijuana for medical reasons, from being fired after he failed a drug test.

Employers and the courts continue to wrestle with issues involving whether employers must accommodate medical marijuana use by their employees. On one hand, marijuana use is illegal under the federal Controlled Substances Act ("CSA") and, therefore, does not need to be accommodated under the federal …

State Tort and CFAA Claims Survive Motion to Dismiss In Ohio Employee Cyberhacking Case.

In a case that vividly demonstrates how employers are vulnerable to insider cyber attacks, a recent federal court decision out of the Southern District of Ohio addressed the scope of federal statutes designed to address such activity. In Freedom Banc Mortgage Services, Inc. v. O’Harra, the plaintiff’s complaint alleged that an employee began remotely downloading software programs on 27 of the employer’s computers and five servers. Through these programs, O’Harra, with the assistance of others, allegedly was able to access the employer’s employees’ email accounts, deleted hundreds of email from these accounts, uninstalled the employer’s security camera, deleted pictures …

First NLRB Decision on Employer Social Media Policies

Employers adopting social media policies have to consider whether they would be struck down by the National Labor Relations Board (NLRB) if challenged as invalid under Section 7 of the National Labor Relations Act. Section 7 protects the rights of union, as well as non-union, employees to communicate at or away from work about terms and conditions of employment. Citing a desire to provide guidance to employers regarding workplace regulation of employee use of social media, the chief lawyer for the NLRB (its “General Counsel”) issued guidance reports in August 2011, January 2012 and May 2012 to show what …

Employer Refusal to Provide a “Fragrance-Free” Workplace May Violate ADA

Presume for a moment an employee complains to Human Resources that a co-worker’s perfume makes her want to choke. The workplace sometimes brings us "closer" together and one worker’s scent can be another worker’s source of distraction or even discomfort. If the complaining employee’s problem is just a matter of personal preference, then the employer has no legal duty to take action, but may want to explore a diplomatic way to resolve the dispute. On the other hand, a recent decision by the United States District Court for the Southern District of Ohio shows that, in some circumstances, this issue …

New Ohio Law Should Make It Easier for Criminal Convicts to Obtain Employment

A lengthy and complicated new law enacted by the Ohio legislature and signed by Governor Kasich includes provisions that will make it easier for individuals with conviction histories to obtain employment and occupational licenses. Senate Bill 337 amends several Ohio statutes relating to collateral sanctions for criminal offenses by creating certificates of qualification for employment, reducing licensing restrictions for certain fields such as cosmetology, construction and security, and expanding courts’ authority to seal criminal records. A collateral sanction is a penalty, disability, or disadvantage that is related to employment or occupational licensing as a result of the individual’s conviction of, …

Health Care Reform Survives Supreme Court Scrutiny – But Not Entirely Intact

Health care reform just got a clean bill of health from the United States Supreme Court. The Court today ruled on the constitutionality of the Patient Protection and Affordable Care Act ("PPACA"), and generally upheld the legislation in a 5-4 decision written by Chief Justice John G. Roberts. Roberts was joined in his opinion by the four justices who had been appointed to the Court by Democratic presidents. In an expected development, certain individual justices wrote and/or joined concurring and dissenting opinions as well. The Court upheld the individual mandate to purchase health coverage, concluding that the mandate is permissible …

Drug Rules for Commercial Motor Vehicle Drivers Updated

The Federal Motor Carrier Safety Administration ("FMCSA") has published another final rule which takes effect today, February 29, 2012. This rule addresses the drug use of commercial motor vehicles drivers, and the FMCSA aims to eliminate inconsistencies in at least three areas.

First, the final rule amends the physical qualifications for commercial motor vehicle ("CMV") drivers to clarify that drivers may not, under any circumstances, use Schedule I drugs and be qualified to drive a CMV. This change aligns the language with that used by the Drug Enforcement Agency ("DEA") in its regulations. The final rule now cites to 21 …

Sixth Circuit Takes the Middle of the Road Approach and Clarifies that the “Totality-of-the-Circumstances” Test in Hostile Work Environment Cases is Based on What the Employee is Aware of, Not Necessarily What the Employee Actually Experiences

The Sixth Circuit’s decision in Berryman v. SuperValu Holdings, Inc., clarifies that the "totality-of-the-circumstances" test used in hostile work environment cases does not have to be based on what the individually employee actually experiences, but rather what the individual employee is aware of.

In the case, eleven current and former SuperValu warehouse employees alleged that over a twenty-five year period, they were exposed to a racially hostile work environment that included vulgar graffiti, overtly racist comments by coworkers, and racially motivated pranks. The district court tossed out the employee’s claims out finding that while the acts were reprehensible, they …

The IRS Voluntary Compliance Settlement Program (VCSP): Does it Offer Employers Amnesty or Put a Target on Their Backs? The Answer … Probably a Little Bit of Both

We first introduced you to the Voluntary Compliance Settlement Program (VCSP), a program launched on the on the heels of the IRS announcing its three-year plan to increase audits of independent contractors (Announcement 2011-64), last September. In that post, we discussed the potential advantages and pitfalls of the VCSP. This post takes another look into the VCSP in light of the IRS’s FAQs, which answers a lot of taxpayers’ concerns but not all of them.

By way of background, the VCSP was designed to provide eligible employers partial relief from the federal employment taxes and penalties that …

LexBlog