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.

Attorney Stephen E. Imm

Title VII of the federal Civil Rights Act of 1964, and all individual state laws, say that employment discrimination on the basis of “sex” is unlawful. But what if an employer fires (or refuses to hire) someone because of their sexual orientation? And what about discrimination on the basis of someone’s gender identity? Are these considered forms of “sex discrimination”? Are they covered by the laws that prohibit the making of employment decisions based on gender?

Federal decisions

Different courts and different states have reached different conclusions on these questions. The United States Supreme Court heard oral arguments last October of 2019 in three different cases that addressed these issues. It is expected that the Supreme Court’s decisions, expected before the end of their term in June of 2020,  will provide clarity regarding the scope of the federal law – Title VII of the Civil Rights Act. Many observers believe that the Court, as currently constituted, is likely to conclude that Title VII does not prohibit discrimination on the basis of sexual orientation or gender identity, but the Court has surprised people before in its rulings on employment matters.

State decisions and statutes

Whatever the Supreme Court rulings may turn out to be, however, they will only govern lawsuits that are brought under the federal employment discrimination law. Individual states are permitted to have their own statutes concerning employment law, and are permitted to offer protections that the federal law does not provide. Several states have, in fact, passed laws specifically stating that employment discrimination based on sexual orientation or gender identity is illegal in their states.

US Supreme Court weighs in on same-sex harassment

One interesting anomaly about this is that Title VII (the federal employment discrimination law) has already been determined by the US Supreme Court to prohibit same-sex harassment. In a harassment case, unlike a typical discrimination case, the employee is not complaining about being denied or deprived of employment opportunities, but rather about the treatment he or she is receiving while on the job. The Supreme Court has also held that “gender stereotyping” is an illegal form of sex discrimination. This ruling was issued in a case where a woman was denied partnership in a firm because she was not considered “feminine enough” by the (mostly male) partners.

Conclusion

So while the upcoming Supreme Court decisions may provide some clarity regarding the issues of sexual orientation and gender identity discrimination, many complicated issues will remain. Employers and employees facing these issues simply must have competent legal counsel to guide them.

Whether as an employee or an employer, for assistance with your employment law issues, please contact Stephen E. Imm at 513.943.5678 or Matthew S. Okiishi at 513.943.6659.

The Fair Labor Standards Act (“FLSA”) is the federal law requiring employers to pay time and a half to most employees who work more than 40 hours in a work week. On September 23, 2019, the Department of Labor issued some new rules that significantly changed the overtime requirements of the FLSA. These new rules took effect on January 1, 2020.

By far the most important of these changes has to do with which employees are considered “exempt“ from the overtime laws. To be considered exempt, an employee must meet two conditions: (1) they must be performing a category of work recognized as exempt, and (2) they must be receiving a regular salary that normally does not vary based on the amount of hours they spend working. Furthermore, in order for the exemption to apply, the salary the employee receives has to be above a certain threshold. That threshold is where the new rules come into play.

Under the old rule, an otherwise exempt employee who was paid a salary of as little as $23,660 a year ($455 a week) was not eligible to be paid overtime when they worked more than 40 hours. On January 1, however, that amount was increased to $35,568 a year, or $684 per week.

As a result of this change, it is estimated that approximately 1.3 million salaried workers who were previously exempt, and were not entitled to overtime pay, will now be eligible to get time and a half their regular rate of pay whenever they work more than 40 hours in a work week.

For employers who employ workers like these, this does not just mean having to pay overtime when they did not have to pay it before. It also means they now have to keep close track of the hours such employees work. There is no obligation to keep track of the hours of “exempt“ employees, but now a great number of previously exempt employees will be considered non-exempt, and their hours will have to be tracked.

If you are an employer or employee who may be impacted by these important new rules, and need guidance on your rights and responsibilities, be sure to seek competent legal counsel as promptly as possible. Mistakes in this area can be very costly.

If you have  questions about the FLSA, consider speaking to one of the labor and employment attorneys at the Finney Law Firm: Stephen E. Imm (513-943-5678) or Matt Okiishi (513-943-6659).

 

Most salespeople are compensated at least in part on commission. Some earn a salary in addition to sales commissions, and some are paid solely by commission. Either way, sales commissions are the “lifeblood” of a salesperson. If someone messes with the commissions of a salesperson, they are going to hear about it. It’s how they earn their living and feed their families.

But what happens if the employment relationship ends? Does a salesperson have any right to commissions after they leave or are terminated?

What does the contract say?

This can be a very complicated question. There are a variety of factors that courts will look at in determining whether or not post-termination commissions may be owed to a salesperson who has resigned or been terminated. First and foremost, courts will look at whether or not the parties had a contract that dictated how post-termination commissions were to be handled. Such a contract can exist in an explicit, written form, but it can also arise from the course of dealings between the parties, or by way of commission plans that are clearly communicated to salespeople during their employment.

What if there is no contract?

In the absence of a contract, courts will sometimes look at what is the custom in the industry in order to determine whether, and if so to what extent, post-termination commissions may be owed to a former salesperson.

Was the commission “earned” prior to separation?

Another important factor is the extent to which the commission was “earned” by the salesperson before termination. If the salesperson, prior to separation from employment, had already done everything required of him/her in order to receive the commission, but the payment of the commission just didn’t happen to come due until sometime after separation, courts are more likely to find that the employee is legally  entitled to the commission. There is a saying that “the law abhors a forfeiture.” This means that the law does not like it when, through no fault of their own, someone is forced to “forfeit” money or property that they possess or have earned.

On the other hand, if a salesperson separated from employment when there was still work to be done for an account – for instance, if certain services were still needed from the salesperson after the sale had been made, and such services were not performed because the salesperson’s employment ended in the meantime – courts are less likely to find that the salesperson is legally entitled to the commission, since the commission arguably had not been fully “earned” at the time of separation.

Different treatment of employees versus independent contractors

It is also important to note that the treatment of sales commission issues are handled differently when the salesperson is an independent contractor, rather than an employee. Ohio, for instance, has a specific statute that addresses sales commissions earned by independent contractors. The statute is very favorable to the salesperson, in that it allows him or her to recover significant additional amounts beyond the unpaid commissions themselves. This statute does not apply, however, to employees.

Conclusion

Obviously, this is a very tricky and complex area of the law. Both companies and salespeople need to have knowledgeable legal counsel in their corner when facing issues involving disputed sales commissions.

Contact Stephen Imm (513-943-5678) or Matt Okiishi (513-943-6659) from the Finney Law Firm employment group for answers to any questions you may have on this topic.

It is common practice for employers who are considering a new hire to conduct reference checks on prospective candidates for the position. Obtaining information from a candidate’s former employer obviously can be a useful tool in making a good hiring decision. So why is it often so hard to get references from previous employers?

Many former employers are very reluctant to provide anything but the most basic and minimal information about their former employees. Most will take the “name, rank, and serial number” approach to reference requests. They will state only (1) whether the personal actually worked there or not, (2) if so, what the person’s job was, and (3) their dates of employment.

Unnecessary exposure to a “chatty” employer

Employers often take this approach because they are concerned about legal liability. They worry that if they give a bad reference about a former employee, they will be sued for defamation of character by that employee. They also worry that if they give a good reference about a former employee, and the employee gets hired into a new position because of it, but turns out to be a terrible worker, they will be blamed by the new employer for causing the hire of a terrible employee.

Does this really makes sense? Are employers right to be concerned about giving references? Should they really be reluctant to provide honest references about their former employees? I’ve heard from many people that they actually think it is illegal for an employer to give any information about a former employee other than “name, rank, and serial number” type of information. Is this correct?

Specific statutory protection for employers

Actually no. At least not in Ohio. In fact, the opposite is true. Ohio law explicitly protects employers from liability for giving out references on former employees – good or bad. The theory behind the law is that the flow of accurate information about employee performance should not be inhibited. That information allows employers to make good hiring decisions, and the dissemination of that information should therefore be encouraged – not discouraged.

There are two exceptions to Ohio’s law that provides for employer immunity in the giving of references. First, an employer is not immune from liability if it gives out information that it knows to be false, or that it gives out with a malicious purpose, in bad faith, or with an intent to mislead. Second, it may not engage in unlawful discrimination – on the basis of race, sex, age, etc. – in the giving of references.

Conclusion

But as long as the employer is not being unlawfully discriminatory, and does not knowingly or maliciously give out false information, it cannot be subject to any legal liability in the giving of references.

If you have any questions – as an employer or an employee – about how reference requests should be made or handled, be sure to contact a competent employment attorney.

Every legal claim that a person can file in civil court is subject to a “statute of limitations.” This is the period of time that the victim of a civil wrong has, after the claim arises, to bring legal action over the wrongdoing. If the claim is not filed within that specified statute of limitations, normally the claim is forever barred and cannot be raised thereafter.

In the field of employment law, some of these time periods are very short. In particular, the most important federal laws that prohibit employment discrimination and harassment – Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) – require fast action by the employee to preserve his or her rights. An employee who believes he or she has one of these federal claims must file a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) within just 300 days of the date on which the discriminatory action occurred. If the employee does not file within this fairly short time frame, then his or her federal claim is extinguished.

For instance, if an employee is fired from a job, and believes that his or her discharge was the result of race, age, or sex discrimination, he or she must file a charge with the EEOC no later than 300 days after the date on which notice of the discharge was received.

Sometimes it can be unclear, however, as to exactly when a discriminatory act “occurred,” and thus when the 300 day period begins to run. And in some cases – like sexual harassment – the discriminatory action or conduct is ongoing, and it doesn’t necessarily occur at a single time and place. These cases can require close examination and detailed analysis to determine whether or not they are time-barred.

Furthermore, many states – like Ohio – have their own laws against employment discrimination and harassment, and these laws carry their own statutes of limitation that can be longer (or shorter) than the 300 day period governing many Federal claims. Thus, in some circumstances, even if a person’s federal claim is time-barred they may still be able to pursue a claim under state law.

Needless to say, the issue of timeliness is critically important in the field of employment law, and it can be a dangerous minefield for the unwary. Both employers and employees should always promptly consult with a qualified employment attorney as soon as they have notice of a potential claim.

These days, just about everyone is walking around with a device that can take pictures, videos, and audio recordings of anything at any time. In the workplace, this means employees can record conversations and events that take place at work. In most states, employees can record conversations they are having – including conversations with supervisors and co-workers – without disclosing that they are doing so. It can be done in secret, without breaking the law.
Many employers aren’t comfortable with the idea of employees making recordings or taking videos and pictures inside their facilities. They may have concerns about privacy or confidentiality. Or they may just not like the idea of this going on at work. Some employers have responded by instituting policies that prohibit such activities, and that provide for disciplinary action to be taken against employees who engage in them.
Are such policies legal? You may be tempted to respond, “Why wouldn’t they be? Doesn’t any property owner have the right to dictate what activities are allowed on his or her property?”
It’s not that simple when it comes to places of employment. This is because of a federal law called the National Labor Relations Act, or “NLRA”. This act guarantees the right of employees to engage in “concerted activity” for their mutual welfare or benefit. The National Labor Relations Board, which enforces the NLRA, has ruled that a blanket policy prohibiting ALL recording of workplace activities is illegal, because at least SOME such recordings might be part of a “concerted activity” that is protected by the NLRA.
For instance, if an employee wanted to take a picture of a message posted by the employer on a bulletin board, to share with her co-workers for the purpose of convincing them they needed to unionize, that could be considered protected activity under the NLRA. A broad policy that prohibited ANY picture taking on the employer’s property could therefore break the law, because it would prevent this kind of “concerted activity” by employees.
Prohibition of SOME kinds of recordings at work is fine. But employers need to be careful not to go too far. Be sure to consult with qualified employment counsel if you have questions about this area.