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:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable;
  2. 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
  3. 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.

Conclusion

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).

Attorney Matthew S. Okiishi

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).

 

 

 

 

 

Attorney Stephen E. Imm

 

The COVID-19 pandemic has dramatically affected every aspect of the Nation’s political, social, and economic life. It should not be surprising, then, that it has implications for employers in terms of their legal obligations to their employees.

Americans with Disabilities Act (“ADA”)

One major consideration is the obligations employers have to their employees under the Americans with Disabilities Act (“ADA”). The ADA limits the inquiries an employer can normally make about an employee’s medical status. So employers must be careful about asking any questions of employees related to the virus. Ordinarily, questions about medical conditions are permitted only when they are job-related, or when the employer has a reasonable belief that the employee poses a direct threat to the health and safety of themselves or others.

In practical terms, this means that you can require your employees to stay home when they are sick, and not to return until they have been symptom-free for a period of time. You may also be permitted to require proof that an employee does not have a fever. Broad, unrestricted questionnaires about medical history or status, however, can violate the ADA.

Employers can require that employees work from home during the pandemic. Note, however, that if an employee has an accommodation at the employer’s facility as a result of a disability, the same accommodation may be required for the employee to work from home.

Layoffs and reduced schedules

Additionally, many employers are being forced to consider layoffs or reduced schedules during this time, due to decreased economic activity. This raises wage and hour issues. In particular, questions arise as to whether certain employees may have to be paid their full rate of pay during periods of reduced activity.

The answers to these types of questions often depend on whether or not an employee is “exempt” or “non-exempt” under the Fair Labor Standards Act, which governs minimum wage and overtime issues. Generally, an exempt employee has to be paid his or her full salary for any week in which he or she performs any work for an employer. By contrast, non-exempt employees only have to be paid when they actually work.

Also, employers are required to keep track of the hours worked by non-exempt employees. If such employees are working from home, however, the normal ways of keeping track of those hours may not work, and alternatives may have to be considered and implemented.

Conclusion

These are very challenging times for everyone, employers included. Companies should reach out to qualified employment law counsel to make sure that they are not inadvertently running afoul of any of the Nation’s employment laws during this most difficult time.

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

Attorney Stephen E. Imm

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).

Most salespeople are compensated at least in part on commission. Some earn a salary in addition to sales commissions, and some are paid solely by commission. Either way, sales commissions are the “lifeblood” of a salesperson. If someone messes with the commissions of a salesperson, they are going to hear about it. It’s how they earn their living and feed their families.

But what happens if the employment relationship ends? Does a salesperson have any right to commissions after they leave or are terminated?

What does the contract say?

This can be a very complicated question. There are a variety of factors that courts will look at in determining whether or not post-termination commissions may be owed to a salesperson who has resigned or been terminated. First and foremost, courts will look at whether or not the parties had a contract that dictated how post-termination commissions were to be handled. Such a contract can exist in an explicit, written form, but it can also arise from the course of dealings between the parties, or by way of commission plans that are clearly communicated to salespeople during their employment.

What if there is no contract?

In the absence of a contract, courts will sometimes look at what is the custom in the industry in order to determine whether, and if so to what extent, post-termination commissions may be owed to a former salesperson.

Was the commission “earned” prior to separation?

Another important factor is the extent to which the commission was “earned” by the salesperson before termination. If the salesperson, prior to separation from employment, had already done everything required of him/her in order to receive the commission, but the payment of the commission just didn’t happen to come due until sometime after separation, courts are more likely to find that the employee is legally  entitled to the commission. There is a saying that “the law abhors a forfeiture.” This means that the law does not like it when, through no fault of their own, someone is forced to “forfeit” money or property that they possess or have earned.

On the other hand, if a salesperson separated from employment when there was still work to be done for an account – for instance, if certain services were still needed from the salesperson after the sale had been made, and such services were not performed because the salesperson’s employment ended in the meantime – courts are less likely to find that the salesperson is legally entitled to the commission, since the commission arguably had not been fully “earned” at the time of separation.

Different treatment of employees versus independent contractors

It is also important to note that the treatment of sales commission issues are handled differently when the salesperson is an independent contractor, rather than an employee. Ohio, for instance, has a specific statute that addresses sales commissions earned by independent contractors. The statute is very favorable to the salesperson, in that it allows him or her to recover significant additional amounts beyond the unpaid commissions themselves. This statute does not apply, however, to employees.

Conclusion

Obviously, this is a very tricky and complex area of the law. Both companies and salespeople need to have knowledgeable legal counsel in their corner when facing issues involving disputed sales commissions.

Contact Stephen Imm (513-943-5678) or Matt Okiishi (513-943-6659) from the Finney Law Firm employment group for answers to any questions you may have on this topic.

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.

While discussing pay may foment worker dissatisfaction and be considered rude in polite circles, an employer may not prohibit the discussions from taking place or punish an employee for discussing pay or benefits with their coworkers. These discussions are protected by the National Labor Relations Act (“NLRA”). Among other things, the NLRA protects the right of workers to engage in “concerted activity,” which includes discussing wages, benefits, and other conditions of employment. This right to engage in “concerted activity” exists regardless of whether the workplace is unionized or the employee’s membership in a union. As a result, employers who prohibit, punish, or discharge employees for discussing their pay with coworkers are subject to discipline from the National Labor Relations Board (“NLRB”).

Because the penalties levied by the NLRB can be onerous, employers should be especially cautious when implementing policies, whether verbal or written in a handbook, which prohibit or dissuade employees from discussing their pay or benefits with coworkers. While most of these policies are ostensibly well meaning and meant to promote or foster synergy, collegiality, and comradery, the intent of the policy is of little value in defending against an unfair labor practice.

If you believe that your employment policies may not be compliant with the labor and employment laws, consider speaking to one of the qualified labor and employment attorneys at the Finney Law Firm: Stephen E. Imm (513-943-5678) or Matt Okiishi (513-943-6659).