As with many other states, Ohio now permits its citizens to consume marijuana legally if it is validly prescribed by a physician for a medical condition. The question arises as to whether this has any implications for employment. Are employees who use medically prescribed marijuana protected from discharge for their marijuana usage? Are employers still permitted to have and enforce a “drug-free workplace” policy if it prohibits the consumption of legal, medically prescribed marijuana?

The legislation establishing Ohio’s medical marijuana law expressly protects employers in several ways. Employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana. They may refuse to hire an individual due to his or her use, possession, or distribution of medical marijuana, and may discharge or otherwise discipline an existing employee for such use, possession, or distribution.

Employers may also establish or maintain a formal drug-free workplace program. And an employer may still discharge an employee for “just cause” if the employee uses medical marijuana in violation of the employer’s drug-free workplace policy. Moreover, the employee will be ineligible for unemployment compensation if the termination resulted from a violation of the employer’s drug-free workplace policy.

The administrator of workers’ compensation may still grant rebates and discounts on premium rates to employers that participate in a drug-free workplace program, and an employer maintains the right to defend against workers’ compensation claims where use of medical marijuana contributes to or results in injury.

Employers and employees should be aware, however, that the usage of medically prescribed marijuana can intersect with federal and state laws that prohibit disability discrimination, and that require employers to reasonably accommodate employee disabilities. If an employee uses medically prescribed marijuana as a result of having a disability, an employer considering an adverse employment action against such an employee must make it clear that the action is based on the employee’s marijuana usage, and not on the underlying disability that led to that usage.

This can be a very tricky area for employers and employees to navigate. If you have questions about a particular situation, or need help in crafting an appropriate employment policy, it is important to seek the guidance of a qualified employment attorney. And be careful out there!

In general, unemployment compensation is intended to provide relief for employees who involuntarily lose their jobs through no fault of their own. Ordinarily, therefore, employees who leave their jobs of their own accord do not receive unemployment benefits. But is there ever a circumstance when an employee can get unemployment after quitting or resigning?

The answer is yes. The law provides that if an employee quits “with just cause,” he or she can qualify for unemployment compensation benefits. What constitutes “just cause” for quitting one’s job? There are several ways in which this can occur.

First, there is the situation where an employee resigns because he or she is about to be discharged. The law provides that an employee who submits a resignation in lieu of being discharged is not disqualified from receiving benefits simply by virtue of the fact that he or she technically “resigned” his or her employment. An employee who is essentially told, “Resign or you will be fired,” can still get unemployment after resigning.

Secondly, if an employee’s terms or conditions of employment are made intolerable, that can constitute “just cause” for quitting. A good example of this is if an employee is forced to work in an atmosphere of pervasive sexual harassment that the employer refuses or fails to correct. In order to get unemployment in these circumstances, the employee will normally have to show that he or she first reported the intolerable working conditions, and gave the employer a fair opportunity to correct them.

Thirdly, if the employer makes significant changes to the employee’s compensation, or to key aspects of the employee’s job, and if those changes are disadvantageous to the employee, this can give the employee “just cause” to resign, and thus qualify him or her to receive unemployment after doing so. Some examples of this would be if an employee receives a demotion, or experiences a significant cut in pay, or if the employer imposes a significant travel requirement in the job that the employee previously did not have.

Like so much else in the law, the question of whether or not an employee can receive unemployment compensation when they resign is not always clear, cut and dried. Both employers and employees can benefit from having good legal counsel when confronted by these issues.

Social media sites such as Facebook and LinkedIn are commonly used by employees to provide updates about their professional careers and business activities. When posting about such things, most people probably don’t think about whether they might be breaching a contract they made with a previous employer. They should.

There have recently been several cases filed by former employers against ex-employees, alleging that the employees have violated a non-competition agreement or non-solicitation agreement through their social media posts. In one such case, filed in Minnesota, an employee who had left her employer to work for a competitor filed a post on LinkedIn about her new job, inviting people in her social network to contact her for a “quote,” telling them that her new company was the “best,” and inviting them to “connect” with her. The court held that this “post” was really a sales pitch on the employee’s part, and that it violated the terms of a non-solicitation agreement she had with her previous employer.

In another case, an employee was sued by his former employer for sending a LinkedIn invite to his former co-workers to join his network. Anyone who accepted the invite would see a job posting for the employee’s new employer. His former employer considered this to be a “solicitation” by the former employee of its current employees, in violation of a clause in  the employee’s non-solicitation agreement. Here, the court found that the employee had not violated his agreement, ruling that the post was simply a “status update” rather than a “solicitation,” despite the link to the job posting.

These cases illustrate that merely accepting or sending a friend request on Facebook, or updating a LinkedIn profile, will not violate a non-compete or non-solicitation agreement. However. social media posts aimed at a specific population, or focused on former colleagues or customers, may be actionable. Former employees bound by non-compete or non-solicitation agreements should be very careful when using social media platforms, especially if they intend to engage in promotional activity. Anything more than a mere status update or generic invitation to join a social media group may get the employee in serious legal trouble.

Therefore, employees who have signed non-compete or non-solicitation agreements should understand the scope and reach of those agreements before engaging their social media network. And employers seeking to enforce their contractual rights should be mindful of activity their ex-employees may be engaged in on social media.

Stephen E. Imm, Labor and Employment Attorney

The Fair Labor Standards Act (“FLSA”) is the Federal law that requires most employers to pay at least the “minimum wage” to their employees, and to pay employees 1 1/2 times their “regular” rate of pay (called “overtime pay”) when they work more than 40 hours a week.

However, there is a long list of “exemptions” to the overtime requirements contained in the FLSA. In other words, various types of employees – such as outside salespeople, executives, and professionals, just to name a few – are exempt from the requirement that workers be paid overtime for working in excess of 40 hours in a week.

Since 1945, it had been the law that these “exemptions” to the overtime requirement were to be “narrowly construed.” This generally meant that workers were considered to be covered by the Federal overtime law unless it was very clear that they fell within one of the listed exemptions. Doubts about whether or not a particular type of worker fell within an “exemption” would be resolved in favor of the worker, rather than the employer – i.e. such workers would not be considered “exempt,” and would be entitled to overtime.

That 70-year old rule was abruptly changed earlier this month by the US Supreme Court, in a case called Encino Motorcars, LLC v. Navarro. There, in a 5 to 4 decision, the Court threw out the “narrow construction” rule that had limited the applicability of exemptions to the overtime requirement. Courts are now instructed to interpret exemptions “fairly” instead of “narrowly.”

This decision will have literally enormous implications on overtime lawsuits. As a general matter, the ruling will make it more difficult for employees to prove that they fall into one of the exemptions provided by the FLSA, and thus more difficult to prove that they are owed overtime pay. In the final analysis, fewer workers than before are likely to be considered “exempt” from the overtime requirement, which could prove to be a major boon to employers.

If you have any questions about your rights or obligations under the FLSA, either as an employer or as an employee, it is critically important that you consult with a competent employment law attorney. This is an area in which it is extremely easy to make a costly mistake if you are not careful!

For more information, contact Stephen E. Imm at (513) 943-5678.

Attorney Stephen E. Imm

Finney Law Firm attorney Stephen E. Imm will present to Cincinnati’s Empower U on April 10, 2018 on the topic:  “What Employers Can Learn From Hollywood’s Sexual Harassment Problem.”

The seminar will be presented at the EmpowerU studios at 225 Northland Blvd., Cincinnati, OH 45246 at 7 PM.

Empower U was founded by our firm client and friend Daniel Reginald of Frame USA to provide a full annual program of free education programs to empower citizens to understand and impact their communities.

They have invited experienced employment law attorney Stephen Imm to speak on April 10 on the hottest topic in America today: Sexual harassment in the workplace.  Steve Imm has more than 30 years of experience working on employment law issues and so the #MeToo movement is old hat to him.

We will send sign-up information as it becomes available.  Please plan on joining us for this free seminar.

The term “sexual harassment” is in constant use these days. Hardly a day goes by without a new story about a politician, celebrity, athlete, businessman, or even judge being accused of it. But what exactly does the term “sexual harassment” mean?

The term means something different in the law than it does in ordinary conversation. If we hear an employee made a sexually inappropriate comment in front of coworkers, or hear that he told a sexually explicit joke in the workplace, we are likely to say or think, “That’s sexual harassment.” And most people would understand what we mean, and would agree with our description.

But that’s not what the law means when analyzing a court case of “sexual harassment.”

Why the difference? And what is the legal definition of “sexual harassment?”

Basically, there are two types of sexual harassment under the law. One is called “quid pro quo.” This is a Latin phrase meaning “this for that.” In a quid pro quo case of harassment, the receipt of employment benefits (such as keeping one’s job, getting a promotion, etc.) is made to hinge on granting sexual favors. A classic case of quid pro quo sexual harassment would be an employee being fired because she wouldn’t go out with her boss. The conditioning of benefits in a quid pro quo case doesn’t have to be explicit. In fact, it rarely is. More often the “quid pro quo” is implied, rather than stated openly. Either way, it is completely illegal.

The other type of sexual harassment is called a “hostile work environment.” In this case, the employee is not pressured to give in to sexual advances in order to keep her job or obtain benefits, but rather is subject to a pattern of inappropriate behavior in the workplace. The behavior is usually sexual in nature, and has the effect of causing employees of a certain gender – usually women – to feel threatened, humiliated, or harassed at work. Examples include physical acts like unwanted touching, and non-physical behavior like lewd comments or “jokes,” and the display of sexuality explicit material.

A legal case for a “hostile work environment” requires that the offensive behavior be “severe or pervasive.” The occasional inappropriate joke or comment usually will not – by itself – be enough to create what the law considers a hostile work environment. But if it is happening every other day it can be a different story. And if the behavior crosses over into the physical – unwelcome touching or assault, for instance – or if the language used is physically threatening, a “hostile work environment” can be created by even a single act.

These lines – such as between what is “severe or pervasive” and what isn’t – can sometimes be difficult to see. Both employees and employers should reach out to qualified employment counsel to understand these issues and protect their rights. Now more than ever.

Let’s say a retail store is experiencing a high volume of theft. It suspects that some of its inventory loss may be due to employee theft. So it decides to start searching its employees when they leave the store. This is being done randomly, and is not necessarily based on individualized suspicion of particular employees. Can the employer do this? Is it legal? If so, exactly how far can an employer go in searching its employees?
 
There is a huge difference in this area of the law between government employers and private employers. Government employers are subject to the fourth amendment of the United States Constitution, which prohibits unreasonable searches and seizures. This means that a government employer normally may not search an employee, or his/her personal effects, without “probable cause” to believe the employee has done something wrong.
 
Private employers, however, are not bound by the fourth amendment. They therefore have a much freer hand when it comes to employee searches. Since the worksite is the property of the employer, it ordinarily has the right to inspect any part of that property – desks, lockers, computers, etc. – when it sees fit to do so. This is not an unlimited right, however. The employer cannot, of course, go into areas where its employees have a justifiable expectation of privacy, such as bathrooms.
 
But what about searching employees’ purses or bags or briefcases while the employees are on the employer’s property? This is a little trickier. If an employer has clearly informed its employees, in advance of any searches, that their personal belongings may be subject to search while they are on the employer’s premises, then it is likely that the employees do not have a “reasonable expectation of privacy” with respect to those articles when they are at work. Accordingly, under those circumstances the search of an employee’s personal effects typically will not violate the employee’s rights. Employers must clearly communicate, however, that they reserve the right to conduct these searches. This can be done in an employee handbook, or by clearly posted signs in the workplace, such as in a break room or other common areas.
 
If employees are not informed in advance that their personal effects may be searched while on the employer’s property, an employer’s search of such items as purses or briefcases might be considered illegal by a court.
 
Employers should keep in mind, however, that just because it can conduct a particular search doesn’t mean that it should. As a matter of good employee relations, employers should always be respectful of their employees, and should think carefully before subjecting them to searches that a reasonable person would consider unduly intrusive.
 
If you have questions or concerns about your rights in this area, whether as an employer or employee, be sure to consult competent legal counsel before taking any action or making any decisions.

 

A previously good employee is starting to behave erratically or strangely. It is starting to disrupt the workplace. The change is such that it appears it may be tied to mental health problems. How should a smart employer handle this?

The Americans with Disabilities Act (“ADA”) bars employers with 15 workers or more from discriminating against workers when an impairment “substantially limits” their ability to engage in “one or more major life activities.” Many state laws include similar prohibitions. A disability or impairment covered by these laws can be either physical or mental. So the employer in this scenario may be dealing with a “disabled” employee. And the law applies whether an employer
knows a worker has a mental impairment, or merely perceives one.

Many employers’ first instinct when they think behavior may be tied to a mental impairment — a worker starts being confrontational or is “acting out” in ways he never did before, for example — is to ask what it can do to help. This is not the best approach. The employer should simply document and discipline the inappropriate behavior without speculating as to its causes. Focus on the
behavior– not where it might be coming from.

The ADA does allow employers to request that workers submit to a “fitness-for-duty” exam under certain circumstances. If it has a reasonable belief, based on objective evidence, that a worker has a condition that impairs his ability to perform essential job functions, or that causes him to pose a “direct threat” to health or safety, it can require such an exam. This exam cannot be aimed at learning whether the worker is disabled, but a doctor
can ask disability-related questions if they are “job-related and consistent with business necessity.”

Documentation is critical. If a company has solid, documented evidence that an employee poses a threat, or can’t perform essential parts of the job, it can require him to submit to an examination as a condition of continued employment.


In addition to the ADA’s bar on discrimination, the law allows protected workers to request a “reasonable accommodation” needed to perform their job, so long as it doesn’t pose an “undue hardship” on the employer. What is “reasonable,” and what constitutes “undue,” will vary from case to case, so employers should approach the situation practically, and should get legal advice. An employer doesn’t have to give whatever accommodation a worker requests, but it does have to try in good faith to find something that works for both it and the employee.


Litigation is a risk employers can’t totally eliminate when the ADA is involved. But by documenting performance and disciplinary issues
without assuming that mental or physical illness is the cause, and by offering reasonable accommodations where appropriate, an employer can put itself in a strong position to successfully defend itself.

 

When most people will hear the words “employment discrimination,” they immediately think of the alleged victims as being members of minority groups, women, or older workers. Although most discrimination claims are filed by these groups of people, it might surprise you to know that many of the major laws prohibiting discrimination in employment decisions can also apply to men, and to members of a “majority” race or ethnicity.
 
The most important federal law prohibiting employment discrimination is Title VII of the Civil Rights Act of 1964. All or nearly all of the 50 states have comparable laws that are patterned after Title VII.
 
Although the 1964 Civil Rights Act was passed primarily to address discrimination against African-Americans, the prohibitions against employment discrimination contained in Title VII of the Act are much broader than that. The law makes  illegal any employment discrimination that is based on “race, color, sex, religion, or national origin.” By the plain language of the statute, this prohibits employment discrimination against men as well as women, and against Caucasians as well as members of minority groups. And courts have interpreted the statute to permit claims of “reverse” discrimination brought by employees who are not members of historically disadvantaged groups.
 
While courts have said that claims of reverse discrimination ARE subject to somewhat closer scrutiny – and a somewhat higher standard of proof – than the more common forms of discrimination claims, such claims have been permitted to move forward (and have been successful) where the evidence points to a finding that a male employee or job applicant, for instance, was treated less favorably than a female because of his gender.
 
This principle even extends to the area of sexual harassment. Obviously, it has been vastly more common for women to be victimized by harassment in the workplace due to their gender. But under the law, a man sexually harassed by a female manager or supervisor has just as much right to pursue a claim as a woman harassed by a male superior or coworker.
 
There are exceptions to the rule that “reverse discrimination” is just as illegal as the more “traditional” types of discrimination. The age discrimination laws, for instance, cannot be used to protect a younger worker from discrimination practiced in favor of older workers. And the disability discrimination laws, such as the ADA, do not protect non-disabled employees from discrimination in favor of disabled employees.
 
Nevertheless, “reverse” discrimination is a very real and legally recognized occurrence. Both employers and employees should be cognizant of this fact in their businesses and employment relationships. Failure to do so can be a costly mistake!

 

Some of you may have seen the “viral” image of a woman named Julie Briskman, who was recently photographed raising her middle finger to a presidential motorcade that passed her while she was bicycling in Virginia. Ms. Briskman was subsequently fired from her job with Akima, LLC, a private contractor that does business with the federal government.
 
Ms. Briskman had made the photograph in question her “profile picture” on her Facebook page. Her employer saw the photograph, and fired her for allegedly violating the company’s social media policy. That policy apparently prohibited employees from posting “lewd or obscene” content on social media sites.
 
So, you might say, what about the First Amendment? What about freedom of speech? Didn’t Ms. Briskman have the right to express her opinion of the President? How can she be fired for that?
 
The civil liberties that are guaranteed to us by the Bill of Rights protect us from adverse action by the government, but not by private employers. Since Akima is a private company, Ms. Briskman was not protected from termination for expressing her political opinions. If she had worked for a government agency, the answer might well have been different.
 
Another interesting wrinkle about the story, though, is that another employee of Akima who posted an obscene message on a social media site was not fired by the Company. If Ms. Briskman was treated differently than the other employee because of her gender, race, or age, she might still have grounds for legal action.
 
This story presents a timely reminder to employers to review and update their employee handbooks, and to make sure that they have appropriate social media policies in place. Among other things, a good social media policy will prohibit employees from causing harm to their employer in places like Facebook, Instagram, and Twitter, while also respecting the rights of employees to their privacy and opinions. Employees must also be permitted to discuss the terms and conditions of their employment with one another, without reprisal from their employers.
 
By the way, if you are feeling sorry for Ms. Briskman, you should know that she apparently received thousands of job offers from all across the country after the public found out what happened to her. So she apparently is going to be okay.
 
If you are an employer or employee who might need assistance navigating these issues, it would be wise to reach out to competent employment counsel. These matters present many potential traps for the unwary!