The social media movement represented by #MeToo began about ten years ago.  Recently, however, in response to revelations about sexual assault and harassment by movie producer Harvey Weinstein, its use has skyrocketed. Literally millions of women (and some men) all over the world – and in every industry – have used the hashtag in recent weeks to come forward about their experiences of being sexually victimized. For many, many women, this social media movement has provided an outlet that didn’t previously exist to express their anger and outrage over being targeted for abuse or harassment because of their gender.

The #MeToo movement is likely to have far-reaching consequences in the workplace, where many of us spend close to half our waking hours. Sexual harassment and abuse have been historically under-reported, as women have often been reluctant or afraid to come forward. #MeToo is changing that, at least on social media. It is likely that more victims will now also feel emboldened to tell their stories of abuse to their HR departments – and to lawyers, judges, and juries.

Sexual harassment in the workplace is illegal, as it is a form of sex discrimination. While not every inappropriate comment to an employee will – by itself – create a hostile work environment, when the comments or other behaviors become “severe or pervasive,” the conduct is illegal, and the employee can recover various forms of damages for the harm it causes – both economically and emotionally.

Employers also need to be mindful of the #MeToo movement. They will see more reports of sexual harassment made to their HR personnel, and they must be ready to respond appropriately. That means having the right employment policies and procedures in place, and doing thorough and fair investigations of any harassment complaints. It also means training their employees in how to recognize, prevent, and stop sexual harassment.

Sexual harassment is about power. And high ranking executives are very powerful people in their companies. One of the reasons people like Harvey Weinstein have gotten away with so much for so long is because they hold so much power, and victims have been afraid to challenge that power. Thanks in part to #MeToo, that appears to be changing.

In recent decades, a great many employers – especially larger companies – have moved to require their employees to sign arbitration agreements as a condition of employment. The agreements are typically included in a big stack of papers employees are given – and never read – on their first day. They usually sign the agreements without thinking.

Courts have historically favored these agreements as a way to limit the cost and duration of litigation. (Arbitration is normally a more limited process than litigation.) Employers like them because they believe arbitrators are more likely to be sympathetic to them than juries are. Employee advocates don’t like them for the same reason.

Some employers have recently taken to using these agreements as a way to accomplish another goal – eliminating class action suits brought by large groups of employees. Employers strongly dislike class action suits, and some have put clauses in their arbitration agreements that say the employee will not bring or join in any class actions. The employee thus agrees that any claims he or she has against the employer will be brought individually – rather than as part of a class – and that they will be brought in arbitration rather than in court.

The question has arisen, however, as to whether such “no class action” clauses are legal and enforceable. The reason this is an issue is that federal labor law guarantees employees the right to engage in “concerted activity” with one another about the terms and conditions of their employment. A class action brought by multiple employees is by definition a form of “concerted activity.” So a clause prohibiting class action participation by employees arguably violates federal law, and should not be enforced.

Different courts and agencies have reached different conclusions about this, and the U.S. Supreme Court has now taken up three cases raising the issue. We should know in the coming months whether employers will be permitted to avoid class action suits through the use of these arbitration clauses. Advocates for both employers and employees are watching very closely.

Suppose someone is falsely charged with a crime. They’re innocent until proven guilty, right? They have the right to a trial, to a lawyer, and to confront their accusers, right? They have a right to defend themselves and be judged by a jury of their peers, right? And if they are innocent, they may be exonerated and vindicated, right?
 
All true. And these rights are a cherished part of our democracy. It’s all part of what we Americans call “Justice.” And most of us would see the heavens fall before we would allow a citizen to be punished for committing a crime without having  these rights honored.
 
But suppose someone is falsely accused of doing something wrong AT WORK. Say they were accused of committing sexual harassment when they did no such thing. Or suppose they were falsely accused of doctoring time records, or some other act of dishonesty. And suppose they get fired on the basis of this false accusation. Surely they would have some protection from such false accusations, right? After all, getting fired is serious business. It can harm someone as much or more than getting charged with a crime.
 
The reality, though, is that for most employees there is little or no protection from being fired on the basis of a false accusation. Unless the employee is in a union or in the classified civil service of the government, the employee is considered “at will.” This means that they serve “at the will” of their employer, and thus that they can be fired for any reason that is not “contrary to law.” This can include entirely false and even “made up” reasons. So unless the employer’s ultimate motivation for firing the employee is an illegal consideration (like discrimination) there is often no legal remedy for the “at will” employee who is fired on the basis of a false accusation. They can be punished without a trial, without a fair chance to defend themselves, and without any due process.
 
This is hard for many people to understand or believe. We are a nation that believes in justice, fairness, and rights. When I tell clients that an at will employee may not have any legal recourse after being fired on the basis of a false accusation, I am often met with blank stares. People have trouble believing that can be true in America. But the truth is that few people have less rights than an at will employee fired on the basis of a false allegation.
 
If the employer repeats the false accusation to third parties – such as to prospective employers who call for a reference on the fired employee – then in that instance the employer may be liable for defamation of the employee’s character.
 
But otherwise the falsely accused employee often can get no “justice” for what may be an extremely unjust act.

 

There has been a firestorm of controversy recently over Google’s decision to fire James Damore. Damore is the software engineer who wrote an internal memo – subsequently leaked – that criticized the company’s policies on diversity and inclusion.

Specifically, Damore claimed that biological differences between men and women may account for the fact that women are under-represented in tech positions at Google and elsewhere. Google fired Damore for his statements, and his termination has been widely debated – earning praise from liberal groups and scorn from conservatives.

But was Damore’s firing LEGAL? Does he have a legal case against Google for wrongful discharge?

For a lot of people, this is a First Amendment issue. They say, “Doesn’t he have the right to express himself? Aren’t his Constitutional rights being violated if he is fired for speaking his mind, whether we agree with him or not?”

The answer to THAT question is “no.” The First Amendment applies to actions taken by the government, not by private employers. It would protect Damore from any action taken by the government, but not from action taken by Google.

But Damore still might have a case. He has already filed an unfair labor practice charge with the National Labor Relations Board. The law says that employees are protected when they engage in “concerted activity” with one another regarding the terms and conditions of their employment. Damore’s claim with the NLRB alleges that his memo – sent to other Google employees – was “concerted activity” about a company policy that affected the employment conditions of he and his fellow employees.

Additionally, Damore claimed in his memo that the company’s diversity program discriminated against men, because – he claimed – it gave female applicants and employees unfair advantages in hiring and promotion decisions. He can claim – and probably will claim – that he was terminated in retaliation for opposing what HE saw as discrimination in the workplace. Firing an employee for expressing opposition to what they REASONABLY BELIEVE is unlawful discrimination is illegal.

Note that the employee doesn’t have to be RIGHT that illegal discrimination is occurring. He or she just has to “reasonably believe,” in good faith, that it is. If they have that reasonable belief, the employee is often protected from retaliation for expressing their opposition to the practice.

This case raises some very interesting issues about employment law and discrimination, and will be very closely watched by many different advocacy groups – and practicing lawyers like us – in the coming months and years.

Labor and employment attorney Stephen E. Imm

Something that didn’t even exist 15 years ago is now all the rage. I’m talking about “Social Media Policies” in the workplace.

What does this mean? Why do many employers have these policies? Are they important? Are there legal rules relating to these policies?

I don’t need to tell you about the explosion and popularity of social media sites like Facebook, Twitter, Instagram, etc. You know, those things that those of us over a certain age have been introduced to by our kids.

Well, it’s not surprising that many people post on these sites about their experiences at work. Usually the posts are benign and inoffensive. But sometimes they can be serious or controversial. And sometimes they can be downright nasty. They may criticize co-workers or supervisors. They may badmouth the employer. They may complain about working conditions or pay. They may argue in favor of organizing a union at work. They may be threatening or abusive.

Can employers limit or restrict what their employees say in social media content related to work? Can it discipline or discharge an employee based on what he or she says on Facebook and the like? Do employees have any rights in this area?

For “at will” employees – that is employees who are not in a union, do not have a contract, and do not work for the government in a civil service position – employers have a fairly free hand to discipline employees for social media posts that the employer doesn’t like. If the employee makes statements that injure the employer’s reputation, that violate its anti-discrimination or harassment policies, that threaten co-workers, or that exhibit a poor attitude toward work – to give just a few examples – the employer is generally permitted to act on that, and to discipline or discharge the employee. This does not infringe on the employee’s right to “free speech” since the employer is a private entity and is not acting as the government.

Even employees of private, non-union employers, however, do have certain rights with regard to social media postings. All employees, for instance, have the right to engage in “concerted activity” to improve the terms and conditions of their employment, or to discuss possible organization for their mutual benefit. So if employees are talking together on-line about their pay, or safety in the workplace, or the way they are being treated by management, employers may not take adverse action against the employees for doing those kinds of things.

It sometimes can be hard to distinguish what is and is not permitted in these cases. For instance, if an employee goes on a profanity-filled rant about his working conditions, and is disrespectful or even hateful toward his managers, can the employer discipline him for being disrespectful and hateful, or would the employee’s rant be considered “concerted activity” if it is directed to his co-workers and discusses their mutual working conditions?

If you have questions about your rights as an employer or employee, or if you want some guidance in implementing an appropriate and legal social media policy, be sure to contact competent legal counsel familiar with the latest developments in this quickly-developing area.

Labor and employment attorney Stephen E. Imm
In an age where almost everyone carries a smartphone almost all the time, it is possible for each of us to make a video or audio recording of events and conversations at the touch of a button. YouTube, as we all know, is filled with impromptu video recordings people have made with their cell phones.
What implications does this have for the modern workplace? Are employees permitted to record conversations they have at work with their co-workers or supervisors? What if an employee wants to gather “evidence” of sexual harassment that they believe is taking place? What if a worker wants to record a conversation with his or her boss when the worker is being reviewed or disciplined? Do they have the right to do that? Do they have to tell the other people who are being recorded?
Federal and Ohio law permit an individual to make such recordings, as long as at least one party party to the conversation being recorded – such as the party recording it – has given permission. Importantly, the individual making the recording does NOT have to have the permission of the OTHER parties being recorded – as long as the person recording is himself a party to the conversation.
(This contrasts with hiding a microphone or cell phone in a location in which the people being recorded are not a part of a conversation with the ower of the device.  That likely would be illegal.)
Employers, however, may want to prohibit such recordings in their workplaces. And many employers have instituted policies against it. They feel that their workers should be able to express themselves at work without worrying about whether they are being recorded. They believe a policy against recording encourages candor in meetings and other interactions. If people are concerned that they may be recorded, they are likely to be more guarded in what they say. This may discourage open and honest communication.
Can an employer bar its employees from making any recordings in the workplace, at least if they are made without the permission of the company or the person being recorded?
It may surprise you to know that such policies have been ruled to be illegal. The National Labor Relations Board has held the a blanket prohibition against recordings in the workplace can inhibit the rights workers have to engage in “concerted activity.” This right – which exists in both union and non-union workplaces – guarantees that employees can talk and work together regarding their working conditions, and regarding other terms and conditions of their employment.
In a case involving the retailer Whole Foods, the NLRB ruled that the company’s policy prohibiting all workplace recordings was impermissible, because it could have a chilling effect on the employees’ right to engage in “concerted activity.” That ruling was recently upheld by a federal appeals court. Other courts, and maybe the Supreme Court, may weigh in on the issue in the future.
For now, employers should have any policies regarding workplace recordings reviewed by legal counsel, to make sure they are in line with the NLRB’s decision. And employees should know that, in most instances, they have the right to make such recordings.
Give us a call if you have any questions about this important and evolving area of the law.
_____________________
Stephen E. Imm is an experienced labor and employment attorney who can help with your workplace issues.  He can be reached at 513-943-5678.
Attorney Stephen E. Imm

Our firm has long enjoyed a fruitful relationship with Tom Cooney and Crystal Faulkner at Mountjoy Chilton Medley, accountants in Cincinnati.  Tom and Crystal are husband and wife and  also hosts of a weekly radio program on 91.7 radio, WVXU aimed at helping business owners smartly and safely grow their business — Businesswise.

Finney Law Firm attorney Stephen E. Imm is to be featured on the program next week, and we encourage you to listen in.  He will be discussing Ohio labor and employment law issues, from the perspective of an employer.  The show times are Monday the 5th and Tuesday the 6th at 7:30 AM.

Also, plan on making Businesswise a part of your weekly listening to sharpen your business knowledge.  Thanks to Tom and Crystal for continuing to make us a part of their business lives!

 

 

Unless you’ve been living under a rock for the last 30 years (in which case you probably aren’t reading my blog posts anyway), you know that “sexual harassment” is illegal in the workplace. What that means to most people is that employers have to make sure their employees do not commit sexual harassment against one another, and have to stop it when they find out it is occurring or has occurred.
 
What many employers and employees don’t know is that employers can be held liable for the harassment of their employees by people who are not employees of the company at all. This includes people like vendors, customers, and contractors who may visit the workplace, or who otherwise might have contact with employees.
 
Employees may be “harassed” by these categories of people just as easily as by fellow employees. The harassment may take place in person, by phone, or over email or text messages. It may occur on the employer’s premises or off. And employers are just as much at risk for liability in these situations as they are in the (more common) situation of a co-worker or supervisor harassing an employee.
 
The way to look at this is that the employer’s obligation is to protect its employees from illegal harassment whenever and wherever they are working – not just when they are on the employer’s property, and not just when they are around their co-workers.
 
Smart employers will have clear and effective sexual harassment policies that inform employees how to report any harassment they experience, regardless of where it occurs or from whom. All the same principles apply to non-employee harassment that apply to co-worker harassment. The employer has the same duty to provide a clear reporting procedure, to investigate reports of harassment promptly, and to take effective remedial action where warranted. In the case of harassment by an outside party, this may mean terminating your relationship with that party, or barring certain representatives of a vendor or customer from having contact with the harassed employee, or from visiting your place of employment.
 
If you believe you have experienced sexual harassment in your employment from someone who is not a co-worker, or if you are an employer wanting to make sure you and your employees are appropriately protected, be sure to contact competent legal counsel right away.

 

In the last 20 years or so, it has become more and more common for employers to require employees to enter into arbitration agreements. These are documents or policies that are designed to protect employers from having to defend lawsuits in court. They provide that if any legal disputes arise between the employer and the employee, before or after the employment relationship ends, they will be submitted to an arbitrator for decision, instead of to a judge or jury.

Employers have tended to favor these agreements for several reasons. First, the idea is that arbitration takes less time and is more streamlined than a court case, and therefore costs much less in attorney fees. Secondly, it is generally believed that arbitrators are likely to me more “employer friendly” than juries. Thirdly, there is believed to be less chance of a really “eye popping” damage award from an arbitrator than from a jury.

There is some validity to each of these considerations. And employee advocates have resisted arbitration agreements where they can, primarily because they prefer that their employee clients receive jury trials, and they view juries as more sympathetic to employee rights. There is some truth to this.

Employers should be aware that, In order for an arbitration agreement to be enforceable, it has to meet certain requirements:

1.  It has to really be an “agreement.” In other words, it should be a written document signed by the employee. Merely having an arbitration “policy” that the employee does not formally agree to may be unenforceable.

2.  It must allow the employee to recover the same remedies available at law. An agreement that limits the employee’s recovery, such as by prohibiting certain types of damages, may not be enforced.

3.  It can’t make it too expensive for the employee to pursue arbitration. If the costs of arbitrating are far more expensive to the employee than the filing fees charged by a court, a court is less likely to enforce the agreement.

This last point has caused some employers to re-think the wisdom of requiring employees to sign arbitration agreements. The cost of paying an arbitrator for his or her service can be a five-figure expense. If the employer has to bear that expense alone – as it may have to do in order for its arbitration agreement to be enforceable – suddenly arbitration may not seem like a much less expensive alternative to a court proceeding.

Additionally, many sets of arbitration rules that apply in employment cases – such as those of the American Arbitration Association – have expanded the “discovery” (depositions, interrogations, etc.) permitted before an arbitration hearing. This is designed to make sure the employee has a fair opportunity to develop evidence to support his or her case, but it also makes the process longer and more expensive – again, more like a court proceeding.

Whether you are an employer or an employee, if you have questions about whether arbitration agreements are a good idea, or about whether a particular agreement is enforceable, please give us a call.

A common question I get is whether an employer must pay an employee for their accrued but unused vacation when they leave employment. If an employee has left under difficult circumstances, such as an involuntary discharge, there can easily be a dispute about post-employment issues like this.

Under Ohio law, accrued vacation is considered an earned benefit that the employee has a legal entitlement to. Therefore, an employee’s right to pay for vacation that was not used during employment will normally survive the employee’s termination or resignation, and payment will be owed.

I say “normally” because an employer can change this through a written policy that is clearly communicated to employees, in an employee handbook or otherwise. If the employer promulgates a policy stating that any unused vacation pay is forfeited when employment ends, that policy is legally enforceable, notwithstanding the general rule.

Employers should carefully consider whether to have a blanket policy like that, however, as it can lead to some harsh results. And some employees who are planning to quit, being aware that their vacation pay will be lost when they leave, will simply take their vacation right before they resign – and quit without notice as soon as they return.

For some employers, a sensible middle ground may be to have a policy stating that vacation pay is forfeited only under certain circumstances – such as if an employee is discharged “for cause,” or if she or he leaves without giving two weeks notice.

Please contact us to discuss what makes the most sense for your business, or if you have questions about you right to vacation pay.