Mandatory arbitration of employment claims has become almost commonplace in recent decades. The courts have repeatedly upheld the enforceability of arbitration “agreements“ between employees and employers, even though employees typically don’t have any choice in signing them. They are normally given to employees at the time of hire, and employees must sign them in order to get the job and start work.

Lawyers who represent employees in discrimination, harassment, and other employment claims historically have disliked these agreements. They believe that employees often can expect better outcomes from a jury than from an arbitrator. Nevertheless, efforts to fight the enforceability of arbitration agreements have largely been unsuccessful.

With respect to sexual harassment claims, however, that changed this year when a new law went into effect, called the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” This law gives employees who have sexual harassment or sexual assault claims the right to “opt out” of any mandatory arbitration agreements they may have signed during their employment with the employer they are suing.

This is important not only because it means employees can get their sexual harassment claims heard by a jury, but also because lawsuits are public proceedings, whereas arbitration proceedings are confidential and private. The public nature of litigation can provide employers with an added incentive to settle cases that could cause them embarrassment. It also means that data about lawsuits filed against individual employers, and how employers have handled such lawsuits, are available to the general public.

Employees who have potential sexual harassment claims, and employers facing such claims, should definitely be aware that mandatory arbitration agreements are no longer enforceable with regard to such claims. This will dramatically change the landscape of litigation when it comes to these types of lawsuits.

The Americans with Disabilities Act and state law both require employers to provide reasonable accommodations to their employees, if they are necessary to allow the employees to perform the essential functions of their jobs. These accommodations can take many forms. They can involve supplying equipment, removing barriers, restructuring an employee’s job, modifying his or her schedule, etc.

What if an employee needs a leave of absence because of a disability? For instance, what if they need time off due to a flare up of their condition, or to recover from a disability-related surgery or treatment? This obviously requires the employee to be away from work entirely during the leave of absence. Does an employer have to provide this kind of accommodation, essentially allowing the employee to not work for a while, and then return him or her to the job they held previously?

The answer is “yes,“ as long as certain conditions are met. First, the amount of the leave requested be reasonable, and it cannot be indefinite. The employer is entitled to know approximately when the employee will be able to return. Second, if the leave of absence requested would impose an undue hardship on the employer, the employer does not have to provide it. So if the employer can show that doing without the employee for the period of time requested would do harm to the employer’s business, it may not be necessary in that circumstance for the employer to accommodate employee’s request for leave.

It is important to note that the employer does not have to provide paid leave in these situations, and can require the employee to pay for the cost of keeping their insurance in place while they are off.

Obviously, questions about whether a particular leave of absence is a “reasonable accommodation” can be tricky. Both employers and employees should get qualified legal representation when addressing these kinds of issues. Making mistakes in this arena can be very costly, and can result in significant damages if the wrong choice is made.

The term “hostile work environment“ is thrown around a lot these days. It is not just a phrase used by employment lawyers and judges. It has become a part of the lexicon of the general public. In the same context, one often hears references to a “toxic work environment,“ or to “bullying“ in the workplace.

A lot of folks are under the assumption – not an unreasonable one – that it is illegal for employers to create a “hostile work environment“ for one or more employees, or to allow such an environment to exist in the workplace, or to not eliminate such an environment once an employee complains about it.

It surprises a lot of people to find out that a hostile or toxic work environment is not always illegal, or something with which the law concerns itself. In fact, a work environment can be very “hostile“ or “toxic“ without being against the law. Furthermore, whether or not a hostile work environment is illegal does not depend on exactly how hostile the work environment is. It is not that “mildly“ hostile environments are not illegal, but “severely“ hostile environments are.

As far as the law is concerned, the determination of whether or not a hostile or toxic work environment is illegal depends upon the motivation for the hostility or toxicity. If the employer or supervisor creating the unpleasant environment is motivated by factors like an employee’s race, sex, sexual orientation, age, religion, or disability, it may very well be unlawful, and grounds for a lawsuit.

If, however, the hostility comes from another source – such as a personality conflict or personal disagreement – the resulting work environment, no matter how toxic or unfair it may be, it’s not legally significant.

This can seem very unfair, but the law sometimes tells an employee who is being subjected to a hostile or toxic work environment, “Hey, you don’t have to keep working there. You can always go find another job.“

A smart employer, of course, is always going to want to create a good working environment for its employees, for a wide variety of reasons. So regardless of the legalities, addressing issues of hostility or toxicity in the workplace is always a good idea.

If you are an employer or employee confronted with issues relating to a hostile or toxic work environment, it would be wise to get advice from a qualified employment lawyer.

If you see a headline about a jury verdict in an employment case, it’s likely to be about a case where an employee was fired. Those are the cases where the impact of discrimination can be the most harmful. A wrongful firing can often cause enormous financial and emotional distress to a family, and the jury verdicts in such cases can sometimes be eye-popping.

But people often forget that federal and state employment laws prohibit discrimination at ALL phases of the employment relationship. They apply at the hiring stage as much as at the termination stage. And they also apply at various stages DURING the employment relationship. When employers make decisions about promotions, for instance, they are required to give opportunities without regard to race, sex, age, disability, etc. The same is true for decisions about pay. Employees cannot be denied raises or other benefits based on these characteristics.

Another example is training. And this can be key. If an employee is denied training opportunities, that in turn can lead to being denied opportunities for advancement later on. The Civil Rights Act of 1964, and comparable state laws, provide that employers must not discriminate when making decisions about which employees will be given the chance to learn new skills.

Employers are often mindful of anti-discrimination laws when preparing to terminate employees. They tend to be most fearful of lawsuits when making those kinds of momentous decisions. They sometimes are less careful, however, when making other kinds of employment decisions, and that lack of care can come back to haunt them. Their hiring, promotion, and pay practices and processes are very important as well, and can expose them to significant legal liabilities if they are not even-handed in their application.

Employers are well-advised to have good legal counsel review these process and procedures And employees should be mindful that they have the right to be free from illegal discrimination not just at termination, but at all phases of the employment relationship.

In the law, people aren’t always held to the promises they make. “I promise I’ll marry you,” or “I promise I’ll buy you a car,” are examples of promises the law usually will not enforce.

We are taught to live up to our promises, but in the law a promise is not normally enforceable unless the person making the promise receives something in exchange. If there is an exchange of promises the law usually considers that a contract. In the absence of a contract, however, a promise usually can’t be enforced at law.

But there is an exception. This is called “promissory estoppel.” This phrase means that sometimes a person will be stopped (“estopped”) from breaking a promise they made, even if there was not a contract.

This doctrine can have an interesting application in the field of employment law. If an employer promises an employee something, and the employee takes some action to his or her detriment in reliance on that promise, the employer may be held to the promise it made.

For instance, say an employer is trying to hire someone away from another employer. To get her to come on board the employer promises that the employees will be hired for at least two years. If the employee leaves her former employer in reliance on the promise of at least a two-year employment, and if that reliance is reasonable, the employer can be held legally liable if it breaks the promise, even though there was never a contract made.

Another example is when an employer promises an employee a raise and promotion if he transfers to a different city. If the employee uproots his family and moves across country in reliance on that promise, the employer risks a lawsuit for promissory estoppel if it doesn’t live up to what it told the employee about the raise and promotion.

We are often told to “get it in writing” when it comes to promises of future benefits. That’s good advice. But sometimes promises can be enforceable even if they are not made in written form, and even if they do no come in the form of a contract.

On June 25, 2021, a panel of the United States Court of Appeals for the Sixth Circuit held unanimously for Jonathan Barger, represented by Steve Imm and Matt Okiishi of our Employment Law division, that his protest against his union allegedly overbilling for the work of its members was “protected speech” under the Labor-Management Reporting and Disclosure Act (“LMRDA”). The LMRDA guarantees, among other things, a union member’s freedom to “express any views, arguments, or opinions,” that touch on a matter of union concern. A copy of the decision in the case styled Jonathan Barger, et al v. United Brotherhood, et al is linked here.

In his Complaint, Mr. Barger alleged that he was subjected to union discipline when he reported time theft allegedly directed by the president of his local to his union brothers, as well as to a private employer. The union, within three days, allegedly retaliated by having Mr. Barger brought up on charges for causing “dissention” within the union. The District Court dismissed Barger’s case, stating that he was beyond the protections of the LMRDA because his motives in reporting the alleged theft were not purely disinterested. The District Court was also critical of Mr. Barger’s failure to publicize his allegations to the rest of his union brothers within the three-day gap following his allegations and preceding the union discipline. Finney Law Firm appealed on behalf of Mr. Barger

The federal Sixth Circuit Court of Appeals reversed the District Court decision, and found that Mr. Barger’s speech was protected under the LMRDA since it upheld the fundamental purpose of the LMRDA: to correct abuses of power and instances of corruption by union officials. The Court further declined to hold his failure to publicize the allegations against him, noting that doing so would create “perverse incentives” for unscrupulous unions to stamp out whistleblowing quickly before publication is possible. Lastly, the Court held that a union member’s motive does not determine whether his or her speech is “protected” or not.

Unlike many appeals court decisions, this victory was recommended by the Court for full publication, signifying that the Court views the case as one of great importance and significance.

Mr. Barger now looks forward to getting his much-deserved and hard-fought day in court.

As employers begin recalling their workers, the topic of mandatory vaccinations has seemingly taken center stage. Of course, employers have a duty to provide a safe working environment to their employees. However, employers also have a countervailing duty to engage in a good-faith interactive process to accommodate the disabilities or sincerely held religious beliefs of their employees.

There are certain persons who suffer from disabilities that do not permit them to be vaccinated. While the ADA permits employers to have a “qualification standard” that employees do not pose a direct threat to the health or safety of individuals in the workplace, if this standard tends to screen out disabled employees, the employer must show that there is a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” In order to make this showing, the employer must first engage in a good-faith interactive process with the employee to accommodate the disability.  Because the use of teleworking became more prevalent during the pandemic, continued telework is likely to be considered a reasonable accommodation for office workers. On the factory floor, the continued use of masks may also serve as a reasonable accommodation under the ADA for these disabled workers.

Because Title VII protects workers from religious discrimination in the workplace, employers should also take care to properly address requests for religious accommodation made by employees who wish to decline the vaccine on the basis of a sincerely held religious belief. The accommodation process here is similar to the process followed under the ADA.

To better assess the risk that unvaccinated members of the workforce may pose in the workplace, an employer is permitted to ask its employees whether they have received the vaccine, as such a question is not considered a “disability-related inquiry.” However, employers should be wary of adopting this route, as the information gleaned must be stored in a file separate from the employee’s regular personnel file, and further inquiries into the reason for receiving or not receiving the vaccine may not be permitted.

The topic of employers requiring vaccines as a condition of employment presents numerous pitfalls. And as with most aspects of the law, navigating it will not be subject to a one-size-fits-all approach. Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. If you need assistance with these matters, feel free to consult Stephen E. Imm (513.943.5678) or Matthew S. Okiishi (513.943.6659).

 

Those of us old enough to remember the Watergate scandal from the early 1970s will remember that what brought down Richard Nixon’s presidency was not the burglary of the Democratic National Headquarters in the Watergate Hotel, but rather the cover-up that followed the burglary. A similar principle can be seen in employment law. Often, it is not original act of alleged discrimination or harassment that brings down an employer, but rather a subsequent act of retaliation the employer engages in against the employee who accuses it of discrimination or harassment.

Let’s say you are an employer, and one of your employees claims that they are being paid less than their co-workers because of their sex or race. You, as the employer, happen to know that is not true. You have legitimate, non-discriminatory reasons for paying this particular worker less. Perhaps he is less productive than his co-workers, or perhaps he has less experience. Nevertheless, you find yourself being falsely accused of race or sex discrimination.

You understandably are angry, right? You have been falsely accused of a really bad act. Essentially, you have been accused of being a racist or sexist. Can’t you fire the employee who has made this false accusation against you?

No, you can’t. At least not legally.

Retaliation is a normal human response. That is why it happens so often. When any of us is attacked, regardless of whether the attack is physical or verbal or otherwise, our immediate impulse is to retaliate. It is almost a reflex. We instinctively act to defend ourselves from the attacker. That is why retaliation claims are so common, and why they get so many employers into trouble. When we retaliate, we are just doing what comes naturally.

Despite retaliation being a normal and natural human response, in this context the law says the employer CANNOT legally do it. As long as the employee has a reasonable belief that his allegation is true – even if he turns out to be completely wrong – the employer is prohibited from retaliating against him in any form for making the accusation. This principle not only applies when the accusation is made as part of a formal legal action, such as filing a charge with a government agency, but also when an accusation is made informally, such as in a conversation with a supervisor or human resources employee.

The prohibition against retaliation is very broad. Prohibited retaliation includes not just obvious actions like firing the employee, but also more subtle actions, such as harassment, excluding the employee from opportunities for overtime, or denying the employee a promotion.

If you have questions about your rights as an employer or an employee when it comes to retaliation, it is wise to seek the advice of an experienced employment attorney before you act. Just remember what happened to Richard Nixon!

Attorney Stephen E. Imm

As a result of the current pandemic, millions more Americans are working from home than there were just a month ago. This significant change in circumstances presents a good opportunity for employers to review their policies when it comes to recording the hours worked by their employees, and the payment of overtime.

Remember that employees who earn at least $684 a week, and who are otherwise “exempt” from the overtime requirements of federal and state law, do not have to be paid additional wages or salary when they work more than 40 hours in a week. Keeping track of the hours these exempt employees work when they are working at home, therefore, is not important from a legal point of view.

Exempt or non-exempt?

This is a good time, however, for employers to make sure that they are correctly classifying their employees as exempt or non-exempt. If an employee is misclassified as “exempt” when he or she is not truly exempt from the overtime laws, the employer can be exposed to significant liabilities for unpaid overtime compensation and additional amounts.

For non-exempt employees, working from home creates some definite challenges when it comes to keeping track of hours worked, and making sure they are paid appropriately. All employers are required to keep accurate records of the hours worked by their non-exempt employees. Note that it is the employer’s responsibility – not the employee’s responsibility – to make sure that these accurate records are kept and maintained. For obvious reasons, it can be harder to keep track of an employee’s hours worked when he or she is working remotely, as opposed to when he or she is working on the employer’s premises.

Time-tracking policies

To make sure that employers comply with their duty to keep accurate time records, they should either have a software solution in place that keeps track of when an employee clocks in and out, or require employees to submit daily timesheets. Employees should also be reminded to clock in and out for lunch, and should be refreshed on the employer’s policies regarding authorization for overtime work.

It is also a good idea to tell employees, when working from home, that they are expected to maintain the same work schedule that they had when working at the employer’s physical location.

Conclusion

Whether you are an employer or an employee, if you have questions or need clarification about this complicated area of the law, please feel free to reach out to one of our employment attorneys. And stay safe!

 

 

 

 

 

 

Attorney Stephen E. Imm

 

The COVID-19 pandemic has dramatically affected every aspect of the Nation’s political, social, and economic life. It should not be surprising, then, that it has implications for employers in terms of their legal obligations to their employees.

Americans with Disabilities Act (“ADA”)

One major consideration is the obligations employers have to their employees under the Americans with Disabilities Act (“ADA”). The ADA limits the inquiries an employer can normally make about an employee’s medical status. So employers must be careful about asking any questions of employees related to the virus. Ordinarily, questions about medical conditions are permitted only when they are job-related, or when the employer has a reasonable belief that the employee poses a direct threat to the health and safety of themselves or others.

In practical terms, this means that you can require your employees to stay home when they are sick, and not to return until they have been symptom-free for a period of time. You may also be permitted to require proof that an employee does not have a fever. Broad, unrestricted questionnaires about medical history or status, however, can violate the ADA.

Employers can require that employees work from home during the pandemic. Note, however, that if an employee has an accommodation at the employer’s facility as a result of a disability, the same accommodation may be required for the employee to work from home.

Layoffs and reduced schedules

Additionally, many employers are being forced to consider layoffs or reduced schedules during this time, due to decreased economic activity. This raises wage and hour issues. In particular, questions arise as to whether certain employees may have to be paid their full rate of pay during periods of reduced activity.

The answers to these types of questions often depend on whether or not an employee is “exempt” or “non-exempt” under the Fair Labor Standards Act, which governs minimum wage and overtime issues. Generally, an exempt employee has to be paid his or her full salary for any week in which he or she performs any work for an employer. By contrast, non-exempt employees only have to be paid when they actually work.

Also, employers are required to keep track of the hours worked by non-exempt employees. If such employees are working from home, however, the normal ways of keeping track of those hours may not work, and alternatives may have to be considered and implemented.

Conclusion

These are very challenging times for everyone, employers included. Companies should reach out to qualified employment law counsel to make sure that they are not inadvertently running afoul of any of the Nation’s employment laws during this most difficult time.

Whether as an employee or an employer, for assistance with your employment law issues, please contact Stephen E. Imm at 513.943.5678.

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