Category Archives: Labor and Employment Law

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:

1. subject to a federal, state or local quarantine or isolation order related to COVID-19;
2. advised by a health care provider to self-quarantine due to COVID-19 concerns;
3. experiencing COVID-19 symptoms and seeking medical 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;
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
6. 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.

Conclusion

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).

Title VII of the federal Civil Rights Act of 1964, and all individual state laws, say that employment discrimination on the basis of “sex” is unlawful. But what if an employer fires (or refuses to hire) someone because of their sexual orientation? And what about discrimination on the basis of someone’s gender identity? Are these considered forms of “sex discrimination”? Are they covered by the laws that prohibit the making of employment decisions based on gender?

Federal decisions

Different courts and different states have reached different conclusions on these questions. The United States Supreme Court heard oral arguments last October of 2019 in three different cases that addressed these issues. It is expected that the Supreme Court’s decisions, expected before the end of their term in June of 2020,  will provide clarity regarding the scope of the federal law – Title VII of the Civil Rights Act. Many observers believe that the Court, as currently constituted, is likely to conclude that Title VII does not prohibit discrimination on the basis of sexual orientation or gender identity, but the Court has surprised people before in its rulings on employment matters.

State decisions and statutes

Whatever the Supreme Court rulings may turn out to be, however, they will only govern lawsuits that are brought under the federal employment discrimination law. Individual states are permitted to have their own statutes concerning employment law, and are permitted to offer protections that the federal law does not provide. Several states have, in fact, passed laws specifically stating that employment discrimination based on sexual orientation or gender identity is illegal in their states.

US Supreme Court weighs in on same-sex harassment

One interesting anomaly about this is that Title VII (the federal employment discrimination law) has already been determined by the US Supreme Court to prohibit same-sex harassment. In a harassment case, unlike a typical discrimination case, the employee is not complaining about being denied or deprived of employment opportunities, but rather about the treatment he or she is receiving while on the job. The Supreme Court has also held that “gender stereotyping” is an illegal form of sex discrimination. This ruling was issued in a case where a woman was denied partnership in a firm because she was not considered “feminine enough” by the (mostly male) partners.

Conclusion

So while the upcoming Supreme Court decisions may provide some clarity regarding the issues of sexual orientation and gender identity discrimination, many complicated issues will remain. Employers and employees facing these issues simply must have competent legal counsel to guide them.

Whether as an employee or an employer, for assistance with your employment law issues, please contact Stephen E. Imm at 513.943.5678 or Matthew S. Okiishi at 513.943.6659.

The Fair Labor Standards Act (“FLSA”) is the federal law requiring employers to pay time and a half to most employees who work more than 40 hours in a work week. On September 23, 2019, the Department of Labor issued some new rules that significantly changed the overtime requirements of the FLSA. These new rules took effect on January 1, 2020.

By far the most important of these changes has to do with which employees are considered “exempt“ from the overtime laws. To be considered exempt, an employee must meet two conditions: (1) they must be performing a category of work recognized as exempt, and (2) they must be receiving a regular salary that normally does not vary based on the amount of hours they spend working. Furthermore, in order for the exemption to apply, the salary the employee receives has to be above a certain threshold. That threshold is where the new rules come into play.

Under the old rule, an otherwise exempt employee who was paid a salary of as little as $23,660 a year ($455 a week) was not eligible to be paid overtime when they worked more than 40 hours. On January 1, however, that amount was increased to $35,568 a year, or $684 per week.

As a result of this change, it is estimated that approximately 1.3 million salaried workers who were previously exempt, and were not entitled to overtime pay, will now be eligible to get time and a half their regular rate of pay whenever they work more than 40 hours in a work week.

For employers who employ workers like these, this does not just mean having to pay overtime when they did not have to pay it before. It also means they now have to keep close track of the hours such employees work. There is no obligation to keep track of the hours of “exempt“ employees, but now a great number of previously exempt employees will be considered non-exempt, and their hours will have to be tracked.

If you are an employer or employee who may be impacted by these important new rules, and need guidance on your rights and responsibilities, be sure to seek competent legal counsel as promptly as possible. Mistakes in this area can be very costly.

If you have  questions about the FLSA, consider speaking to one of the labor and employment attorneys at the Finney Law Firm: Stephen E. Imm (513-943-5678) or Matt Okiishi (513-943-6659).

Tipping employees in various service professions (barbering, food service, etc.) is as American as apple pie. Unfortunately, the retention of employee tips by employers is a less common, but nonetheless pervasive, practice. Both employers and employees would do well to note that an employer’s retention of any employee tips (except as part of a valid “tip pool”) is illegal, as the 2018 amendments to the Fair Labor Standards Act (“FLSA”) make clear.

It was not always this way. For example, prior to the 2018 amendments, federal appellate courts were split on the issue of whether an employer could keep employee tips if the employer paid the employee above the minimum wage.

But the law has changed, and both employers and employees should know that employees have a right to demand and receive the tips paid by customers. The gains that employers can expect from skimming tips are simply not worth the risk of being caught in a lawsuit. In addition to requiring employers to pay the full amount of improperly withheld tips, the FLSA further entitles employees to additional liquidated damages, which is an amount equal to the improperly withheld tips, plus attorneys’ fees  and expenses. (This means a court award of double the actual damages of the wrongfully withheld tips plus the attorneys fees and expenses of the litigation.)

Because the FLSA is a federal law, it applies to nearly all employers and employees in the United States, including those in the Cincinnati tri-state area (Ohio, Kentucky, and Indiana).

If you are an employee who has been shorted on their tips or an employer who needs to update its policies to accommodate the requirements of the FLSA, consider speaking to one of the labor and employment attorneys at the Finney Law Firm: Stephen E. Imm (513-943-5678) or Matt Okiishi (513-943-6659).

The U.S. Department of Labor has changed the salary level for exempted salaried employees. A prior iteration of this rule was famously (at least to employment law attorneys) declared illegal in 2016. However, the Department has been undeterred, and the new rule, which will go in to effect on January 1, 2020, has massive implications for businesses who classify employees as overtime exempt under the “white collar” or “EAP” exemption.

The white collar/EAP exemption exempts from the minimum wage and overtime pay requirements any employee employed in a bona fide executive, administrative, or processional capacity. In order to satisfy the exemption, an employee must: (1) be paid a predetermined and fixed salary that is not subject to reduction because of the quality or quantity of work performed (the “salary basis” test); (2) the salary must meet a minimum specified amount (the “salary level” test); (3) and the employee’s job duties must primarily involve executive, administrative, or processional duties (the “duties” test).The new rule changes the “salary level” test. Until January 1, 2020, the required salary must exceed $455 weekly ($23,660 annually). However, after January 1, 2020, the salary requirement will be raised to $684 weekly ($35,568 annually). To somewhat ease the burden this imposes on employers, the Department has also permitted employers to count nondiscretionary bonuses, incentives, and commissions toward up to 10 percent of the salary level ($2,556.80 annually).

As a result of these changes, on January 1, 2020, employers who do not raise their salaries to meet the new minimum, but otherwise satisfy the white collar/EAP exemption will find themselves exposed to potential overtime and/or minimum wage liability. If you are concerned that your pay policies may be out of compliance, consider speaking to one of the employment law attorneys at the Finney Law Firm: : Stephen E. Imm (513-943-5678) or Matt Okiishi (513-943-6659).

It is common practice for employers who are considering a new hire to conduct reference checks on prospective candidates for the position. Obtaining information from a candidate’s former employer obviously can be a useful tool in making a good hiring decision. So why is it often so hard to get references from previous employers?

Many former employers are very reluctant to provide anything but the most basic and minimal information about their former employees. Most will take the “name, rank, and serial number” approach to reference requests. They will state only (1) whether the personal actually worked there or not, (2) if so, what the person’s job was, and (3) their dates of employment.

Unnecessary exposure to a “chatty” employer

Employers often take this approach because they are concerned about legal liability. They worry that if they give a bad reference about a former employee, they will be sued for defamation of character by that employee. They also worry that if they give a good reference about a former employee, and the employee gets hired into a new position because of it, but turns out to be a terrible worker, they will be blamed by the new employer for causing the hire of a terrible employee.

Does this really makes sense? Are employers right to be concerned about giving references? Should they really be reluctant to provide honest references about their former employees? I’ve heard from many people that they actually think it is illegal for an employer to give any information about a former employee other than “name, rank, and serial number” type of information. Is this correct?

Specific statutory protection for employers

Actually no. At least not in Ohio. In fact, the opposite is true. Ohio law explicitly protects employers from liability for giving out references on former employees – good or bad. The theory behind the law is that the flow of accurate information about employee performance should not be inhibited. That information allows employers to make good hiring decisions, and the dissemination of that information should therefore be encouraged – not discouraged.

There are two exceptions to Ohio’s law that provides for employer immunity in the giving of references. First, an employer is not immune from liability if it gives out information that it knows to be false, or that it gives out with a malicious purpose, in bad faith, or with an intent to mislead. Second, it may not engage in unlawful discrimination – on the basis of race, sex, age, etc. – in the giving of references.

Conclusion

But as long as the employer is not being unlawfully discriminatory, and does not knowingly or maliciously give out false information, it cannot be subject to any legal liability in the giving of references.

If you have any questions – as an employer or an employee – about how reference requests should be made or handled, be sure to contact a competent employment attorney.