Category Archives: Labor and Employment Law

Pregnancy is a momentous and life-changing event in a woman’s life. It’s a time of anticipation, excitement, and sometimes, anxiety. While many employers are supportive and accommodating during this period, there have been instances where pregnant women have faced discrimination in the workplace. Fortunately, there are legal protections in place to combat this injustice. Title VII of the Civil Rights Act of 1964, amended by the Pregnancy Discrimination Act of 1978, has made it clear that pregnancy discrimination is against the law.

Statutory protection against sex discrimination did not exist on the federal level until passage of the Civil Rights Act of 1964. Title VII of the Act prohibits discrimination on the basis of race, color, religion, sex, and national origin.  However, for many years, pregnancy was not explicitly included as a protected category under Title VII. As a result, pregnant women were often the victims of gross injustice as they were denied promotions, demoted, or even fired solely because of their pregnancy. Women were often forced to choose between their career and starting a family. Thus, in 1978, Congress enacted the Pregnancy Discrimination Act (PDA) establishing that discrimination on the basis of pregnancy was a violation of Title VII.

The PDA was a vital amendment to Title VII, and it explicitly prohibited discrimination on the basis of pregnancy, childbirth, or related medical conditions. This amendment clarified that employers could not treat pregnant employees less favorably than other employees based on their pregnancy status.

The PDA has several key provisions that ensure pregnant women are protected in the workplace:

• Hiring and Employment: Employers are prohibited from refusing to hire a woman because she is pregnant, so long as she is able to perform the essential functions of the job. Pregnant women must be treated the same as any other job applicant and must be given the same opportunity for promotion.
• Health Benefits: Pregnant employees are entitled to the same health benefits as other employees. This includes medical coverage for pregnancy-related expenses, such as prenatal care and childbirth.
• Light Duty and Accommodations: Employers must provide reasonable accommodations to pregnant employees who need them, to the same extent they do for employees with short-term disabilities.
• Protection for Retaliation: It is illegal for employers to retaliate against employees for asserting their rights under the PDA. This means that if a pregnant employee speaks up about discrimination or requests accommodations, the employer cannot take adverse action against her in response.

The Pregnancy Discrimination Act has been a significant step towards equality in the workplace as it establishes that employers are legally bound to treat pregnant employees with the same professional opportunities for growth, development, and job security as their non-pregnant colleagues.

However, despite these legal protections, pregnancy discrimination persists. Discrimination on the basis of pregnancy is both unethical and illegal.  Therefore, it is important for women who believe they have been subjected to pregnancy discrimination to be aware of their rights and seek legal assistance if necessary. Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. If you or a close friend or family member needs assistance in this area, consult the Employment Team at the Finney Law Firm.

Many people have become familiar with the concept of “reasonable accommodation” under the Americans with Disabilities Act (“ADA”). Basically, the law requires employers to “accommodate” the needs of a disabled employee if it can be done reasonably, and without causing an “undue hardship” to the employer.

Less well-known is the employer’s duty to accommodate the religious beliefs of its employees. This duty arises under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of such characteristics as race, color, sex, and religion.

The classic example of a religious accommodation case under Title VII is whether an employer must excuse an employee from working on their Sabbath day if their religion prohibits it. As in the case of the ADA, the law requires employers covered by the Act to reasonably accommodate the sincerely held religious beliefs of an employee if it can be done without causing an undue hardship for the employer.

But what constitutes an “undue hardship“? If providing an accommodation would cause some inconvenience, difficulty, or expense for an employer, how do we determine whether it is significant enough to be considered an “undue” hardship under the law? How much hardship is “too much”?

Recently, in a case called Groff v. DeJoy, the United States Supreme Court provided some guidance on this question. In doing so, it significantly increased the burden of proof employers must meet in order to show that a proposed accommodation of an employee’s beliefs would impose upon it an “undue hardship.”

Previously, the Court had suggested that any hardship that was more than “de minimis“ – meaning, “barely noticeable” – was enough to constitute an “undue” hardship in the context of a reasonable accommodation. This was a pretty low burden for employers to meet. In Groff, however, the Court held that the employer must meet a significantly higher burden. Specifically, employers must be able to show that a proposed accommodation would impose a burden that is “substantial,” such as by causing the employer to incur “substantially increased costs,” if it wanted to deny an accommodation on the basis of undue hardship. If it cannot show a “substantial“ hardship, then the employer must ordinarily accommodate the beliefs of the employee.

While the exact contours of this definition are still somewhat unclear, the Court is certainly saying an employer must now show much more than a “minimal” hardship in order to legally deny a requested accommodation of an employee’s religious beliefs.

Both employers and employees should be mindful of this new standard, and should seek competent employment counsel for guidance when these issues arise.

Many employers require their employees to sign noncompete agreements as a condition of employment. These agreements purport to prohibit employees from working for a competitor for a period of time after their employment ends, usually a year.

These agreements are enforceable in most states, with certain restrictions. They have to be reasonable in time and scope, and they cannot impose an undue hardship on the employee, or be injurious to the public interest.

In recent years, however, many states have passed laws to place significant limits on noncompete agreements, and even to outlaw them altogether. In Ohio, Kentucky, and Indiana, however, these agreements are still legal and enforceable in most instances.

Now, noncompete agreements are under attack on a national level. The Federal Trade Commission has proposed a rule that would ban noncompetes nationwide, except in very limited circumstances. The FTC is currently receiving public comment on its proposed rule, and a final rule is expected to be issued early next year.

The National Labor Relations Board has also gotten into the act. This Board, which regulates employer-employee relations and the rights of workers to act in concert with one another, recently issued a ruling banning confidentiality clauses and non-disparagement clauses in  employees’ severance agreements. Recently, the general counsel (lead attorney) of the NLRB issued a memorandum expressing the view that noncompete agreements violate the legal right of workers to engage in “concerted activity” about their working conditions, because they effectively prevent workers from resigning, or threatening to resign, over unsatisfactory conditions in the workplace. Although the general counsel’s memorandum does not have the force of law, it signifies that the Board may make that ruling in the near future.

As of now, noncompete agreements are still often enforceable in Ohio and surrounding states. That could be changing very soon, however. Stay tuned!

We are pleased to announce the latest addition to Finney Law Firm, attorney Diana L. Emerson.  Diana earned her Juris Doctor degree from the J. David Rosenberg College of Law at the University of Kentucky in the spring of 2022 and joined the Kentucky bar in the fall.  She joins our Labor and Employment Department headed by Stephen E. Imm.

Diana earned her bachelor’s degree in History and Social Science from Lindsey Wilson College and thereafter worked on Capital Hill as a Staff Assistant for a United States Representative of the Commonwealth of Kentucky.

In order to “Make a Difference” for our clients, we continuously invest in new talent and the addition of Diana is  significant and tangible part of that commitment.

 

Mandatory arbitration of employment claims has become almost commonplace in recent decades. The courts have repeatedly upheld the enforceability of arbitration “agreements“ between employees and employers, even though employees typically don’t have any choice in signing them. They are normally given to employees at the time of hire, and employees must sign them in order to get the job and start work.

Lawyers who represent employees in discrimination, harassment, and other employment claims historically have disliked these agreements. They believe that employees often can expect better outcomes from a jury than from an arbitrator. Nevertheless, efforts to fight the enforceability of arbitration agreements have largely been unsuccessful.

With respect to sexual harassment claims, however, that changed this year when a new law went into effect, called the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” The Act is a federal law that applies to all claims arising out of sexual misconduct, regardless of whether the claim is asserted under a federal or state statute, or under the common law. It gives employees who have sexual harassment or sexual assault claims the right to “opt out” of any mandatory arbitration agreements they may have signed during their employment with the employer they are suing.

This is important not only because it means employees can get their sexual harassment claims heard by a jury, but also because lawsuits are public proceedings, whereas arbitration proceedings are confidential and private. The public nature of litigation can provide employers with an added incentive to settle cases that could cause them embarrassment. It also means that data about lawsuits filed against individual employers, and how employers have handled such lawsuits, are available to the general public.

Some employees who have sexual harassment claims may also have other claims against the same employer that are not related to sexual misconduct. For instance the employee may also have a claim of race discrimination, breach of contract, or unpaid overtime. In this instance, the employee’s case may have to be heard in two different forums. The employee can file a lawsuit over the sexual harassment claim, because the Act says an employer can’t force arbitration of that claim. But the employee may still have to go to arbitration to pursue her other claims, in accordance with the arbitration agreement she signed.

Employees who have potential sexual harassment claims, and employers facing such claims, should definitely be aware that mandatory arbitration agreements are no longer enforceable with regard to such claims. This will dramatically change the landscape of litigation when it comes to these types of cases.

 

The Americans with Disabilities Act and state law both require employers to provide reasonable accommodations to their employees, if they are necessary to allow the employees to perform the essential functions of their jobs. These accommodations can take many forms. They can involve supplying equipment, removing barriers, restructuring an employee’s job, modifying his or her schedule, etc.

What if an employee needs a leave of absence because of a disability? For instance, what if they need time off due to a flare up of their condition, or to recover from a disability-related surgery or treatment? This obviously requires the employee to be away from work entirely during the leave of absence. Does an employer have to provide this kind of accommodation, essentially allowing the employee to not work for a while, and then return him or her to the job they held previously?

The answer is “yes,“ as long as certain conditions are met. First, the amount of the leave requested be reasonable, and it cannot be indefinite. The employer is entitled to know approximately when the employee will be able to return. Second, if the leave of absence requested would impose an undue hardship on the employer, the employer does not have to provide it. So if the employer can show that doing without the employee for the period of time requested would do harm to the employer’s business, it may not be necessary in that circumstance for the employer to accommodate employee’s request for leave.

It is important to note that the employer does not have to provide paid leave in these situations, and can require the employee to pay for the cost of keeping their insurance in place while they are off.

Obviously, questions about whether a particular leave of absence is a “reasonable accommodation” can be tricky. Both employers and employees should get qualified legal representation when addressing these kinds of issues. Making mistakes in this arena can be very costly, and can result in significant damages if the wrong choice is made.

If you see a headline about a jury verdict in an employment case, it’s likely to be about a case where an employee was fired. Those are the cases where the impact of discrimination can be the most harmful. A wrongful firing can often cause enormous financial and emotional distress to a family, and the jury verdicts in such cases can sometimes be eye-popping.

But people often forget that federal and state employment laws prohibit discrimination at ALL phases of the employment relationship. They apply at the hiring stage as much as at the termination stage. And they also apply at various stages DURING the employment relationship. When employers make decisions about promotions, for instance, they are required to give opportunities without regard to race, sex, age, disability, etc. The same is true for decisions about pay. Employees cannot be denied raises or other benefits based on these characteristics.

Another example is training. And this can be key. If an employee is denied training opportunities, that in turn can lead to being denied opportunities for advancement later on. The Civil Rights Act of 1964, and comparable state laws, provide that employers must not discriminate when making decisions about which employees will be given the chance to learn new skills.

Employers are often mindful of anti-discrimination laws when preparing to terminate employees. They tend to be most fearful of lawsuits when making those kinds of momentous decisions. They sometimes are less careful, however, when making other kinds of employment decisions, and that lack of care can come back to haunt them. Their hiring, promotion, and pay practices and processes are very important as well, and can expose them to significant legal liabilities if they are not even-handed in their application.

Employers are well-advised to have good legal counsel review these process and procedures And employees should be mindful that they have the right to be free from illegal discrimination not just at termination, but at all phases of the employment relationship.

In the law, people aren’t always held to the promises they make. “I promise I’ll marry you,” or “I promise I’ll buy you a car,” are examples of promises the law usually will not enforce.

We are taught to live up to our promises, but in the law a promise is not normally enforceable unless the person making the promise receives something in exchange. If there is an exchange of promises the law usually considers that a contract. In the absence of a contract, however, a promise usually can’t be enforced at law.

But there is an exception. This is called “promissory estoppel.” This phrase means that sometimes a person will be stopped (“estopped”) from breaking a promise they made, even if there was not a contract.

This doctrine can have an interesting application in the field of employment law. If an employer promises an employee something, and the employee takes some action to his or her detriment in reliance on that promise, the employer may be held to the promise it made.

For instance, say an employer is trying to hire someone away from another employer. To get her to come on board the employer promises that the employees will be hired for at least two years. If the employee leaves her former employer in reliance on the promise of at least a two-year employment, and if that reliance is reasonable, the employer can be held legally liable if it breaks the promise, even though there was never a contract made.

Another example is when an employer promises an employee a raise and promotion if he transfers to a different city. If the employee uproots his family and moves across country in reliance on that promise, the employer risks a lawsuit for promissory estoppel if it doesn’t live up to what it told the employee about the raise and promotion.

We are often told to “get it in writing” when it comes to promises of future benefits. That’s good advice. But sometimes promises can be enforceable even if they are not made in written form, and even if they do no come in the form of a contract.

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.

2. 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.

3. 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.

2. 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 L. Simpson (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.