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 byBostock. 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).
Today, Finney Law Firm attorney Matt Okiishiparticipated in a panel discussion for the public sponsored by the Cincinnati Bar Associationon 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.
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.
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.
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.
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.
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!
On April 6, 2020, the Department of Labor published its temporary rules for the Families First Coronavirus Response Act (“FFCRA”). Our firm has written prior entries regarding the FFCRA and Covid-19’s impact on the workplace, and I previously noted that a significant portion of the FFCRA would require additional federal guidance to understand. The rules define qualifying reasons for leave, employer and employee notice obligations, and the small business exemption.
Under the new rules, a “Child Care Provider” is a provider who receives compensation for providing child care services on a regular basis and is licensed under state law. However, a Child Care Provider does not need to be compensated or licensed if they are a family member or friend who “regularly cares for the employee’s child.”
“Place of Care” means the physical location where care is provided for the Employee’s child while the employee works for the employer.
“Son or Daughter” includes biological, adopted, and foster children. It also includes stepchildren, legal wards, or the child of a person standing in loco parentis. Son or Daughter can also include persons over the age of 18 when that person is incapable of self-care because of a mental or physical disability.
“Subject to a quarantine or isolation order” includes the “shelter in place” or other general orders issued by states and municipalities in response to the Covid-19 epidemic, and includes when a governmental authority has advised certain categories of citizens to shelter in place.
Application to Emergency FMLA Leave
The qualifying reason for Emergency FMLA leave is narrow, applying only to employees who are unable to work or telework due to the need to care for a Son or Daughter if the child’s school or Place of Care is closed or the Child Care Provider is unavailable due to the Covid-19 pandemic. But as stated previously, the definition of a “Child Care Provider” is quite broad, including family members and other persons who regularly care for a child out of a neighborly or familial bond. Similarly, a “Son or Daughter” includes the full spectrum of children and persons who are regularly under the care of a parent. As such, it would be improper for an employer to deny EFMLA leave to an employee because the child is not necessarily a biological relative or the Child Care Provider is not a licensed day care.
Paid Sick Leave Implications
The six reasons for paid sick leave have also been impacted by the new regulations:
1. Subject to a federal, state or local quarantine or isolation order related to COVID-19.
Employees are only considered to be “subject to a quarantine or isolation order” when, but for being subject to the order, they would be able to perform work that is otherwise allowed by their employer. When the order shuts down the employer’s operations, an employee is not entitled to paid sick leave.
2. Advised by a health care provider to self-quarantine due to COVID-19 concerns.
A health care provider has advised self-quarantine only when the advice is based on a belief that the employee (1) has Covid-19; may have Covid-19, or the employee is particularly vulnerable to Covid-19 and (2) this advice prevents the employee from being able to work at the employer’s workplace or through telework.
3. Experiencing COVID-19 symptoms and seeking medical diagnosis.
The employee must be experiencing a fever, dry cough, shortness of breath, or any other recognized Covid-19 symptom from the CDC, and must be seeking a medical diagnosis. Paid sick leave under this reason is limited to the time the employee is unable to work because of their affirmative steps to obtain the diagnosis.
4. Caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns.
“Individual” is an immediate family member, person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for them. Employees may only take leave under this reason if, but for a need to care for the individual, the Employee would be able to perform work for their employer at the workplace or through telework.
5. Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
Subject to the same EFMLA definitions, an employee may only utilize this reason if no other suitable person is available to care for the Son or Daughter during the period of such leave.
6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (“HHS”) in consultation with the Secretary of the Treasury and the Secretary of Labor.
At the time of this posting, it does not appear that HHS has provided other “substantially similar conditions.”
Intermittent leave and Notice
Employees may only take intermittent leave under the FFRCA’s Emergency FMLA or paid sick leave provisions when the employer agrees. However, an employer may be required to grant “intermittent” leave when an employee is actively seeking a medical diagnosis, as doctor’s visits typically require employees to leave their worksite or telework desk.
Because of the rapid development of Covid-19 symptoms and an employee’s need for leave, the Department of Labor is not requiring employees to notify employers about their need for emergency FMLA or paid sick leave as soon as practicable. Instead, the Department generally advises employers to be proactive in notifying employees of the failure to give notice and an opportunity to provide documentation prior to denying the request for leave. Notice may only be required after the first workday where the employee takes EFMLA or paid sick leave.
From a content perspective, it is reasonable for an employer to require enough information to determine whether the requested leave is covered. This documentation is generally limited to: (1) the employee’s name; (2) dates for which leave is requested; (3) qualifying reason; and (4) a statement (oral or written) that the employee is unable to work because of the qualified reason for leave. For specific reasons, such as quarantine, doctor’s orders, or care for a child, additional documentation may be required. Employers are also permitted to seek information that is needed to support tax credits pursuant to the FFCRA.
Small Business Exemption
Employers with less than 50 employees may be exempt from providing paid sick leave or emergency FMLA leave when the imposition of such requirements would “jeopardize the viability of the business as a going concern.” An employer is entitled to this exemption when an authorized officer has determined that:
The leave requested would result in the business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services by the employee or employees requesting leave and these labor or services are needed for the small business to operate at a minimal capacity.
Small businesses must document an exemption determination internally and maintain the records in its files.
The FFRCA has changed the way business is done in this country, albeit on a temporary basis (The FFRCA sunsets on December 31, 2020). In approaching requests for leave, the law and regulations contemplate that employers will engage in a thoughtful and well-documented manner and avoid knee-jerk reactions or blanket assertions of “business viability.” Employers of all sizes would be well-served to engage competent legal counsel to assist in navigating the FFRCA’s new requirements.
The Finney Law Firm’s labor and employment attorneys are well-versed in the rights and obligations of both employers and employees, including the rapidly evolving COVID-19 changes. For assistance with these matters, consult Matthew S. Okiishi (513.943.6659) and Stephen E. Imm (513.943.5678).
The recently enacted Families First Coronavirus Response Act requires employers to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. We recently blogged about the Act here.
These provisions will apply from April 1, 2020 through December 31, 2020. The US Department of Labor has issued a poster that employers are required to post in a conspicuous place, or make available to their employees on line. Here is a link to the poster:
The rapidity with which these laws have been passed and gone into effect is unprecedented in the field of employment law. If you have any questions or concerns about your rights and responsibilities under the Act, or regarding the posting of the required Notice, please feel free to reach out to us.
With the advent of the COVID-19 Crisis, Finney Law Firm and Ivy Pointe Title have quickly stepped to the plate, with technology that allows for the practice of law with appropriate social distancing, with attorneys who focus on practice areas to help their clients, and with cutting edge information on emerging programs to help businesses and individuals in need.
Technology allowing for electronic interaction
Finney Law Firm and Ivy Pointe Title have carefully developed the tools to be prepared for a day such as this:
DocuSign allows for execution of documents from your computer. By federal and state law, e-signed documents are fully enforceable as with “inked” documents. Our team is licensed and trained in DocuSign technology for all documents in which clients will allow an electronic signature.
Electronic notary. Finney Law Firm and Ivy Pointe Title contracted with one of only a handful of licensed e-notaries in Ohio for exclusive provision of e-notary services. Using the platform DocVerify, we have the strongest technology to allow real estate closings and other transactions to proceed. By Ohio law, it is permissible to have documents signed and acknowledged (notarized) without person-to-person interaction via electronic signature and electronic notary.
Electronic payments. We use e-billing and credit card payments (and wire transfers and EFTs) for clients who prefer this method of billing and payment.
Electronic discovery and electronic depositions. Your litigation does not need to stop because of the COVID-19 crisis. Most of the work pre-trial can still move forward using e-mail, Zoom.US or Microsoft Teams for depositions, and motion work that can be electronically filed with almost all Courts.
Work-from-Home. If you do need to visit our offices, you will find that most of our professionals are not at their desks. Rather, they are safely (for you and them) working from home with the latest technology including Microsoft Surface laptops, Microsoft Teams Video Conferencing, Microsoft Office 365 data in the cloud, so we can access your data from anywhere in the planet, but with tremendous Microsoft security technology and backups.
Practice areas to help your business
Our business lawyers are up to date and prepared to help you through the thicket of issues that arise or are heightened with the COVID-19 crisis:
Attorney Isaac T. Heintzis proficient in contract interpretation, including how to enforce or avoid obligations under a lease or other agreement. He has already written purchase agreements with COVID-19 contingencies to extend due diligence periods to the declared end of the crisis. As you might expect, Isaac has also had many clients initiate their estate planning, or finish long-delayed estate planning work.
Attorney Stephen E. Imm heads our employment law group, and is advising clients on a myriad of new COVID-19 legislation and addressing employment law claims under previously existing law and the new enactments.
Attorney Bradley M. Gibson heads our litigation group which is dealing with a multitude of business-to-business disputes, including those arising because of the COVID-19 crisis.
Attorney Richard P. Turner runs Ivy Pointe Title and in that capacity has been using every tool at our disposal to continue to close your transactions “accurately and on time, every time.” These include closings respecting social distancing, and we stand prepared to be one of the first agencies in Ohio to implement fully electronic closings. We also can do drive-by closings where you come to our office and sign documents from your car, or we come to you and you can sign them on our car hood.
Attorney Christopher P. Finney heads our public interest practice, and the host of issues addressing government-to-business and government-to-individual interaction arising from the COVID-19 crisis.
We are working furiously to meet the needs of our clients in this fast-emerging crisis. Let us know how we can help you or your small business navigate these turbulent waters to come to the other side safely and profitably.
And our hope is that each of you remain healthy throughout this pandemic.
Last week, I wrote a comprehensive overview of the new federal requirements for paid sick leave and family medical leave under the Families First Coronavirus Response Act (the “Act”). Since then, the Department of Labor has published its first guidance on the application and enforcement of those provisions.
The Effective Date of the Act Has Changed:
The Act states that its provisions shall go into effect within 15 days of enactment. As the Act was signed by President Trump on March 18, 2020, I took a conservative approach and wrote that the new paid sick leave and family medical leave provisions would be effective on April 2, 2020. Per the new Department of Labor guidelines, the Act will be effective on April 1, 2020, one day ahead of schedule.
Under-the-radar sick time provision:
Nestled in to the Act’s paid sick leave provision is a prohibition against employers requiring the use of other paid sick leave (this includes ALL accrued time off, whether vacation time, bereavement, sick time and other time off. In many companies this is known in their personnel policy as “PTO” or “Paid Time Off”). This is an easy provision to run afoul of, and employers should consider consulting with competent legal counsel to ensure compliance with the Act.
Small Business Exemption Still Vague, Non-Enforcement Grace Period:
The Act exempts employers with less than 50 employees from its requirements if compliance would jeopardize the viability of the business. Department of Labor regulations on the topic are forthcoming and should be released in April 2020.
In an effort to help employers navigate this uncertainty, the Department of Labor’s Field Assistance Bulletin has instructed its officers to not enforce the Act’s provisions until April 17, 2020. The Department of Labor will not bring about any enforcement actions provided that an employer makes “reasonable, good faith efforts to comply with the Act.” Employers will only be found to behave reasonably and in good faith when all of the following are satisfied:
The employer remedies any violations, including by making all affected employees whole as soon as practicable;
The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”); and
The Department receives a written commitment from the employer to comply with the Act in the future.
Employers who may require use of the small business exemption should consult with competent legal to prepare for the upcoming regulations and ending of the grace period. Employers should also be aware that the Field Assistance Bulletin does not limit the right or ability of an employee to bring a private action for violations of the Act.
Our labor and employment attorneys are well-versed in the rights and obligations of both employers and employees, including the rapidly-evolving COVID-19 changes. For assistance with these matters, consult Stephen E. Imm (513.943.5678) and Matthew S. Okiishi (513.943.6659).
In the wake of the Covid-19 pandemic, Congress and the Trump Administration have greatly expanded the protections available to workers affected by the disease. On April 2, 2020, both the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and Emergency Paid Sick Leave Act (“EPSLA”) will go into effect, and both will remain in effect until December 31, 2020.
Emergency Family and Medical Leave Expansion Act
The EFMLEA applies to all employers with fewer than 500 employees. Employees who worked for the employer for at least 30 days prior to the designated leave are entitled to up to 12 weeks of job-protected leave. However, the reason for the emergency leave is especially narrow, and only applies to an employee who is unable to work or telework due to the need to care for the employee’s child if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. Due to the proactive measures taken by Governor Mike DeWine, many employees in Ohio may find themselves covered under the EFMLEA.
Employees who qualify for leave under the EFMLEA are entitled to partially paid leave. For the first 10 days of the leave, employees are not entitled to pay. However, employees can substitute accrued paid leave or EPSLA (explained below) to bridge this gap. After the 10-day period, a full-time employee is entitled to pay at a rate two-thirds their regular rate, capped at $200 per day and $10,000 aggregate. Hours for part-time employees are to be calculated as the average of the hours worked in the preceding six months.
At the conclusion of the leave, employers with 25 or more employees must return the employee to the same or equivalent position. Employers with fewer than 25 employees are excluded from the requirement if the employee’s position no longer exists following leave due to an economic downturn. However, the employer must still make a reasonable attempt to return the employee to an equivalent position.
The EFMLEA further permits the Secretary of Labor to exclude emergency responders and healthcare providers from eligibility, and to exempt small businesses (defined as employing less than 50 employees) if the leave would jeopardize the viability of their business.
Emergency Paid Sick Leave Act
The EPSLA applies to employers with fewer than 500 employees, but healthcare providers and emergency responders may elect to be exempt. Employees qualify for paid sick leave under the EPSLA if the employee is:
subject to a federal, state or local quarantine or isolation order related to COVID-19;
advised by a health care provider to self-quarantine due to COVID-19 concerns;
experiencing COVID-19 symptoms and seeking medical diagnosis;
caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Qualifying employees are generally entitled to 80 hours of paid sick leave at their regular rate under the EPSLA (employees who are taking sick leave for the fourth, fifth, or sixth listed reason above are entitled to a two-thirds pay rate). The paid sick leave is capped at $511 per day for the employee’s own use, and $200 to care for others.
A Word of Caution
Because the EFMLEA amends the Family Medical Leave Act, the anti-retaliation and discrimination provisions of the same apply. It is illegal for employers to interfere with employees exercise of their rights under the FMLA or to otherwise discriminate against them.
Similarly, the EPSLA prohibits employers from requiring employees to use other paid leave provided by the employer to the employee before the employee uses EPSLA sick time. Further, the EPSLA prohibits employers from retaliating or discriminating against employees who elect to utilize the EPSLA.
Our labor attorneys are well-versed in the rights and obligations of both employers and employees, including the rapidly-evolving COVID-19 changes. For assistance with these matters, consult Stephen E. Imm (513.943-5678) and Matthew S. Okiishi (513.943-6659).