The $137 million judgment against car maker Tesla this week was one of the largest awards in a racial harassment case in U.S. history.   No doubt it has gained the attention of employers and employees alike.

A California federal jury ordered Tesla to pay Owen Diaz nearly $137 million dollars in damages for racial harassment, including $4.5 million for past emotional distress, $2.4 million for future emotional distress, and $130 million in punitive damages.

Diaz complained that he was subjected to persistent racial harassment including racial slurs. And he claimed that the harassing behavior continued even after he reported and complained about the conduct.

Tesla denies the harassing behavior and denies their responsibility for it, as Diaz was a contractor, not an employee.  The jury, however, found that Diaz was subjected to harassment, and that Tesla failed to sufficiently address it.  It is not clear if Tesla will appeal, or if they do if they will prevail.  Even if Tesla were to appeal and prevail, they would have spent years in very costly litigation.

What can employers do to protect their employees from harassment and themselves from lawsuits.

After seeing the headlines and reading about the Tesla case, employers may be asking themselves how they can insure their employees are safe from harassment and their company is protected from such a lawsuit.   Employers with the best of intentions can be vulnerable, and their employees can be vulnerable as well, if the right kind of policies, procedures, and training are not put in place.

Employers should:

  1. Have the right policies in place to prevent and address harassing behavior

Employers should have written policies that outline the types of behavior that will not be tolerated, a procedure for reporting any such behavior, how such behavior is to be investigated, and clear rules on the consequences of such behavior.

  1. Provide effective training for supervisors and employees on the policies

Even if an employer has solid policies in place, those policies cannot be effective if supervisors and employees are not aware of or do not understand the policies.   Periodic and clear training needs to be provided, so the policies can be followed and enforced.

  1. Enforce the policies

Employers need to be diligent in consistently enforcing their policies to make them effective.  If supervisors and employees see that policies are not being enforced, they may feel they don’t need to be followed and choose to ignore them.  And, if policies are enforced sometimes and not others, that in itself could create feelings and claims of unequal treatment and potentially harassment.

What should employees take from the Tesla Judgment?

The Tesla judgment sends a message to employees that:

  1. Juries may be taking a harder line against harassment

With its $130 million punitive damages award, the California jury sent the message that harassment will not be tolerated in the workplace and must stop or there will be dire consequences.  Punitive damages are on top of any actual damages and are meant to punish and send a message.   This message from the California jury is in line with our society’s increased focus over the last few years and months on issues of discrimination and harassment.  While the Tesla case was decided by a California jury, this could signal a shift toward harsher consequences from juries in harassment cases in other geographical areas as well.

  1. Employees should not be afraid to report harassment

Some employees may be afraid to report harassment because they do not want to seem like they are not a team player or because they are concerned the issue will not be addressed and they may be retaliated against.  The Tesla decision sends a message that employees should not tolerate harassment in the workplace, and that employers must take harassment seriously and have policies and procedures in place to investigate and stop the harassing behavior.  And, it send the message to employees that if the harassment is not dealt with effectively in the workplace, they can seek a remedy in the courtroom.

Effective policies, training and enforcement can help protect both employees and employers, and aid in maintaining a productive and harassment free workplace and avoiding lawsuits.

For legal assistance with workplace issues, contact our capable labor and employment law attorneys, including Steve Imm (513.943-5678) Matt Okiishi (513.943.6659) and Rebecca Heimlich (513.797-2856).

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).

 

In order to best serve our clients, the Finney Law Firm’s Employment Law team closely tracks proposed Ohio, Kentucky, and federal employment legislation. The Ohio General Assembly and Kentucky Legislature are currently debating small, yet significant, changes to their employment laws.

Ohio

In Ohio, Senate Bill 47 would amend Ohio’s wage and hour statute, O.R.C. 4111.01, et seq., to incorporate the federal “Portal to Portal Act” into Ohio law. Should the bill pass, the proposed O.R.C. 4111.031 Ohio would explicitly eliminate employees from being compensated for time travelling to and from the place of performance, activities that are preliminary to or postliminary to the principal activities, and activities requiring insignificant or de minimis time. The rule would not apply where the activities are preformed either during the regular work day or during prescribed hours, or at the direction of the employer.

As S.B. 47 merely harmonizes Ohio law with the federal Fair Labor Standards Act, most Ohio employers should be unaffected by the changes. However, all employers should have a knowledgeable employment attorney review their policies and procedures for the handling of out of office work, especially in regards to emails. While a simple review of an email outside of work hours is likely de minimis time, an email requiring a substantive response or directing to an immediate task would likely not be exempt time under the proposed O.R.C 4111.031.

Kentucky

Kentucky is currently one of 26 states with laws that prohibit discriminating against smokers who otherwise comply with workplace rules. Senate Bill 258 would eliminate protections for smokers from K.R.S. 344.040, allowing employers to, among other things, require an employee or job applicant to abstain from smoking or using tobacco during or outside of the course of employment. Should the bill pass, Kentucky employers would be permitted to modify their handbook and hiring policies to exclude smokers and create a generally healthier work environment.

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Please contact Stephen E. Imm (513.943.5678) of Matthew Okiishi (‭513.943.6659) for help with an employment law issue.

After years of lobbying from employers and defense counsel seeking to overhaul Ohio’s workplace discrimination laws, Governor DeWine signed House Bill 352 into law on January 12, 2021. The new law tips the scales in favor of employers in workplace discrimination cases. The changes will impact the way employment law attorneys practice and their clients pursue, or defend, workplace discrimination claims. Let’s take a look at some of the most significant changes to the law:

Limits Liability for Individual Supervisors

The new law excludes persons acting directly or indirectly in an employer’s interest from the definition of an “employer” under the Ohio Civil Rights Law. This change means that individual supervisors cannot be held personally liable for workplace discrimination claims if they were acting in the interest of an employer except in limited circumstances. Individual supervisors can be held personally liable if it is determined they acted outside of the scope of their employment, retaliated against the complainant, or obstructed the complainant from pursuing a claim with the Ohio Civil Rights Commission (OCRC).

Establishes a Specific Procedure for Employment Discrimination Claims

Under the current law, plaintiffs can file workplace discrimination claims with the OCRC or in a county court. The new law removes this choice and requires that an individual first file a charge with the OCRC before she may file a civil lawsuit. Once a charge is opened with the OCRC, the agency will begin an investigation. After sixty days, the complainant may request a notice of right to sue from the OCRC. After the complainant receives a notice of right to sue from the OCRC (or more than 45 days have passed without a response to the request) the complainant may file a civil lawsuit. An individual may also file a lawsuit if she obtains a notice of right to sue from the Equal Employment Opportunity Commission (the agency that enforces federal employment discrimination laws).

If the OCRC finds it probable that workplace discrimination has occurred, the complainant will have the choice of allowing the OCRC to prosecute the claim (including attempting to resolve the claim through alternative dispute resolution) or to withdraw from the administrative process and file a civil lawsuit in the county courts.

Statute of Limitations for Workplace Discrimination Claims

For most claims, the current law allows a person to bring a lawsuit alleging violation of the Ohio Civil Rights Law within six years after the alleged discriminatory act occurred. The new law requires a plaintiff to file suit based on workplace discrimination within two years. The statute of limitations is tolled while a charge based on the same allegations is pending with the OCRC.

Affirmative Defenses for Employers in Sexual Harassment Cases

The new law affords employers an affirmative defense to a claim for vicarious liability in which an employee alleges that a supervisor created a hostile work environment through sexually harassing behavior. In the typical sexual harassment case, an employee alleges that a specific boss or supervisor subjected the employee to a hostile work environment, and the employee seeks to hold both the supervisor and the company/employer liable. Under the new law, the employer can raise an affirmative defense to these claims if it can prove: (1) that it had an effective harassment policy; (2) that it properly educated employees about the policy and complaint procedures; (3) that it exercised reasonable care to prevent or promptly correct the harassing behavior; and (4) that the complainant failed to take advantage of any preventative or corrective opportunities. This is basically a re-statement of current federal law governing sexual harassment claims.

Age Discrimination Claims

Plaintiffs have previously pursued employment-based age discrimination claims through a variety of statutory mechanisms. The new law clarifies that age discrimination claims must be pursued through the same avenues in which all other workplace discrimination claims are pursued – i.e. – the process discussed above.

Takeaways

In order to pursue a workplace discrimination claim at the federal or state level, a plaintiff must have an understanding of the administrative procedures required by the EEOC and the OCRC. An individual subjected to workplace discrimination risks losing her claim if she fails to timely pursue an action or fails to adhere to the administrative procedures required to lodge a claim. The Finney Law Firm has experienced employment attorneys dedicated to protecting the rights of employers and employees in the workplace. We can help you navigate these claims at both the federal and state level.

 

 

For more information on this new statute, contact Brad Gibson (513.643.6661).  Read more about our Employment Law practice here.

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!

On June 15, 2020, the Supreme Court of the United States, in Bostock v. Clayton County, Georgia, held that gay and transgender employees may not be fired merely for being gay or transgender. In a 6-3 decision, the Court held that termination on the basis of gender identity or sexual orientation violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of sex, race, color national origin, or religion.

The Court only addressed the issue of whether termination on the basis of gender identity or sexual orientation is prohibited under Title VII. However, employees and small businesses should be aware that it is a near certainty that all forms of discrimination on the basis of sexual orientation or gender identity, including harassment, pay disparity, and discrimination in hiring and promotion decisions, are now prohibited under Title VII.

Title VII only applies to employers with more than 15 employees, and current Ohio and Kentucky jurisprudence has held that their respective antidiscrimination laws (Revised Code 4112.02, et seq. and Kentucky Revised Statutes 344, et seq.) do not prohibit discrimination on the basis of sexual orientation or gender identity. As a result, it is possible that businesses with less than 15 employees will not be affected by Bostock. However, Ohio and Kentucky courts normally interpret their states’ antidiscrimination laws in a manner consistent with the interpretation of Title VII. Therefore, there is a very good chance that the protections now afforded to gay and transgender persons by Title VII will also be applied to smaller employers in Ohio and Kentucky.

The employment attorneys at the Finney Law Firm take pride in staying up-to-date with recent developments in employment law, including the recent Covid-19 leave requirements and expansion of Title VII protection. Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. For assistance with these matters, consult  Matthew S. Okiishi (513.943.6659) and Stephen E. Imm (513.943.5678).

Attorney Matthew S. Okiishi

Today, Finney Law Firm attorney Matt Okiishi participated in a panel discussion for the public sponsored by the Cincinnati Bar Association on employment law issues presented by the COVID-19 crisis.

That discussion is now on line. You may watch it here.

Matt Okiishi devotes his practice to the employment law arena, representing both employers and employees in disputes, which include wage and hour issues, Family and Medical Leave Act issues, and illegal discrimination based upon age, race, gender, handicap, national origin, and other protected classifications. He has written extensively on COVID-19-related employment legislation on this blog.

Please contact Matt (513.943-6659) for help with your employment law issues.

 

 

Finney Law Firm attorney Matt Okiishi

Today at 3 PM Finney Law Firm attorney Matt Okiishi co-presents to the public (not just CBA members) at the Cincinnati Bar Association with attorney Kelly Mulloy Myers on “legal issues in the wake of COVID-19.”

It is simply a 30-minute program of pre-selected questions submitted by the public on the noted topic.

A link to the Facebook announcement about the program is here and you can sign up for the program thru that link.

According to Lieutenant Governor John Husted, Ohio is working to process a massive increase in applications for Ohio unemployment benefits.  More people have applied for Ohio unemployment benefits over the last month than had applied for such benefits in the last two years.

Expanded unemployment benefits

Additionally, the CARES Act expanded unemployment benefits to cover self-employed and independent contractors and promised an additional $600 per week on top of what the state pays.  This has all resulted in slow processing times and numerous questions.

Answers to FAQs

The State is working to answer those questions and decrease processing times. Here are some updates:

  • Claim number: If you are filing a claim due to COVID 19, use the mass layoff number 2000108 on applications.
  • Self-employed and independent contractors: The State will start taking your information but anticipates it will not be able to process or pay benefits until May 15 of this year.  Once processed and approved, however, benefits will be retroactive.
  • Additional $600 per week: These additional payments should be starting now.
  • Efforts to alleviate slow processing time: Ohio Department of Job and Family services is adding 337 new employees, text-to-speech capabilities, and adding a virtual call center.
  • Funding challenges: According to Husted, without federal assistance Ohio’s unemployment system is on track to run out of funds in June, but, he says, that doesn’t mean Ohioans will lose their benefits.  State legislators are working to resolve this issue.
  • Where to apply:

Conclusion

If you have questions on this or other relief available for small businesses, self-employed, and independent contractors during the COVID 19 crisis, please contact Rebecca Simpson Heimlich at 513.797.2856.

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