Category Archives: Labor and Employment Law

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.

Every legal claim that a person can file in civil court is subject to a “statute of limitations.” This is the period of time that the victim of a civil wrong has, after the claim arises, to bring legal action over the wrongdoing. If the claim is not filed within that specified statute of limitations, normally the claim is forever barred and cannot be raised thereafter.

In the field of employment law, some of these time periods are very short. In particular, the most important federal laws that prohibit employment discrimination and harassment – Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) – require fast action by the employee to preserve his or her rights. An employee who believes he or she has one of these federal claims must file a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) within just 300 days of the date on which the discriminatory action occurred. If the employee does not file within this fairly short time frame, then his or her federal claim is extinguished.

For instance, if an employee is fired from a job, and believes that his or her discharge was the result of race, age, or sex discrimination, he or she must file a charge with the EEOC no later than 300 days after the date on which notice of the discharge was received.

Sometimes it can be unclear, however, as to exactly when a discriminatory act “occurred,” and thus when the 300 day period begins to run. And in some cases – like sexual harassment – the discriminatory action or conduct is ongoing, and it doesn’t necessarily occur at a single time and place. These cases can require close examination and detailed analysis to determine whether or not they are time-barred.

Furthermore, many states – like Ohio – have their own laws against employment discrimination and harassment, and these laws carry their own statutes of limitation that can be longer (or shorter) than the 300 day period governing many Federal claims. Thus, in some circumstances, even if a person’s federal claim is time-barred they may still be able to pursue a claim under state law.

Needless to say, the issue of timeliness is critically important in the field of employment law, and it can be a dangerous minefield for the unwary. Both employers and employees should always promptly consult with a qualified employment attorney as soon as they have notice of a potential claim.

As with many other states, Ohio now permits its citizens to consume marijuana legally if it is validly prescribed by a physician for a medical condition. The question arises as to whether this has any implications for employment. Are employees who use medically prescribed marijuana protected from discharge for their marijuana usage? Are employers still permitted to have and enforce a “drug-free workplace” policy if it prohibits the consumption of legal, medically prescribed marijuana?

The legislation establishing Ohio’s medical marijuana law expressly protects employers in several ways. Employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana. They may refuse to hire an individual due to his or her use, possession, or distribution of medical marijuana, and may discharge or otherwise discipline an existing employee for such use, possession, or distribution.

Employers may also establish or maintain a formal drug-free workplace program. And an employer may still discharge an employee for “just cause” if the employee uses medical marijuana in violation of the employer’s drug-free workplace policy. Moreover, the employee will be ineligible for unemployment compensation if the termination resulted from a violation of the employer’s drug-free workplace policy.

The administrator of workers’ compensation may still grant rebates and discounts on premium rates to employers that participate in a drug-free workplace program, and an employer maintains the right to defend against workers’ compensation claims where use of medical marijuana contributes to or results in injury.

Employers and employees should be aware, however, that the usage of medically prescribed marijuana can intersect with federal and state laws that prohibit disability discrimination, and that require employers to reasonably accommodate employee disabilities. If an employee uses medically prescribed marijuana as a result of having a disability, an employer considering an adverse employment action against such an employee must make it clear that the action is based on the employee’s marijuana usage, and not on the underlying disability that led to that usage.

This can be a very tricky area for employers and employees to navigate. If you have questions about a particular situation, or need help in crafting an appropriate employment policy, it is important to seek the guidance of a qualified employment attorney. And be careful out there!

In general, unemployment compensation is intended to provide relief for employees who involuntarily lose their jobs through no fault of their own. Ordinarily, therefore, employees who leave their jobs of their own accord do not receive unemployment benefits. But is there ever a circumstance when an employee can get unemployment after quitting or resigning?

The answer is yes. The law provides that if an employee quits “with just cause,” he or she can qualify for unemployment compensation benefits. What constitutes “just cause” for quitting one’s job? There are several ways in which this can occur.

First, there is the situation where an employee resigns because he or she is about to be discharged. The law provides that an employee who submits a resignation in lieu of being discharged is not disqualified from receiving benefits simply by virtue of the fact that he or she technically “resigned” his or her employment. An employee who is essentially told, “Resign or you will be fired,” can still get unemployment after resigning.

Secondly, if an employee’s terms or conditions of employment are made intolerable, that can constitute “just cause” for quitting. A good example of this is if an employee is forced to work in an atmosphere of pervasive sexual harassment that the employer refuses or fails to correct. In order to get unemployment in these circumstances, the employee will normally have to show that he or she first reported the intolerable working conditions, and gave the employer a fair opportunity to correct them.

Thirdly, if the employer makes significant changes to the employee’s compensation, or to key aspects of the employee’s job, and if those changes are disadvantageous to the employee, this can give the employee “just cause” to resign, and thus qualify him or her to receive unemployment after doing so. Some examples of this would be if an employee receives a demotion, or experiences a significant cut in pay, or if the employer imposes a significant travel requirement in the job that the employee previously did not have.

Like so much else in the law, the question of whether or not an employee can receive unemployment compensation when they resign is not always clear, cut and dried. Both employers and employees can benefit from having good legal counsel when confronted by these issues.

Social media sites such as Facebook and LinkedIn are commonly used by employees to provide updates about their professional careers and business activities. When posting about such things, most people probably don’t think about whether they might be breaching a contract they made with a previous employer. They should.

There have recently been several cases filed by former employers against ex-employees, alleging that the employees have violated a non-competition agreement or non-solicitation agreement through their social media posts. In one such case, filed in Minnesota, an employee who had left her employer to work for a competitor filed a post on LinkedIn about her new job, inviting people in her social network to contact her for a “quote,” telling them that her new company was the “best,” and inviting them to “connect” with her. The court held that this “post” was really a sales pitch on the employee’s part, and that it violated the terms of a non-solicitation agreement she had with her previous employer.

In another case, an employee was sued by his former employer for sending a LinkedIn invite to his former co-workers to join his network. Anyone who accepted the invite would see a job posting for the employee’s new employer. His former employer considered this to be a “solicitation” by the former employee of its current employees, in violation of a clause in  the employee’s non-solicitation agreement. Here, the court found that the employee had not violated his agreement, ruling that the post was simply a “status update” rather than a “solicitation,” despite the link to the job posting.

These cases illustrate that merely accepting or sending a friend request on Facebook, or updating a LinkedIn profile, will not violate a non-compete or non-solicitation agreement. However. social media posts aimed at a specific population, or focused on former colleagues or customers, may be actionable. Former employees bound by non-compete or non-solicitation agreements should be very careful when using social media platforms, especially if they intend to engage in promotional activity. Anything more than a mere status update or generic invitation to join a social media group may get the employee in serious legal trouble.

Therefore, employees who have signed non-compete or non-solicitation agreements should understand the scope and reach of those agreements before engaging their social media network. And employers seeking to enforce their contractual rights should be mindful of activity their ex-employees may be engaged in on social media.

The Fair Labor Standards Act (“FLSA”) is the Federal law that requires most employers to pay at least the “minimum wage” to their employees, and to pay employees 1 1/2 times their “regular” rate of pay (called “overtime pay”) when they work more than 40 hours a week.

However, there is a long list of “exemptions” to the overtime requirements contained in the FLSA. In other words, various types of employees – such as outside salespeople, executives, and professionals, just to name a few – are exempt from the requirement that workers be paid overtime for working in excess of 40 hours in a week.

Since 1945, it had been the law that these “exemptions” to the overtime requirement were to be “narrowly construed.” This generally meant that workers were considered to be covered by the Federal overtime law unless it was very clear that they fell within one of the listed exemptions. Doubts about whether or not a particular type of worker fell within an “exemption” would be resolved in favor of the worker, rather than the employer – i.e. such workers would not be considered “exempt,” and would be entitled to overtime.

That 70-year old rule was abruptly changed earlier this month by the US Supreme Court, in a case called Encino Motorcars, LLC v. Navarro. There, in a 5 to 4 decision, the Court threw out the “narrow construction” rule that had limited the applicability of exemptions to the overtime requirement. Courts are now instructed to interpret exemptions “fairly” instead of “narrowly.”

This decision will have literally enormous implications on overtime lawsuits. As a general matter, the ruling will make it more difficult for employees to prove that they fall into one of the exemptions provided by the FLSA, and thus more difficult to prove that they are owed overtime pay. In the final analysis, fewer workers than before are likely to be considered “exempt” from the overtime requirement, which could prove to be a major boon to employers.

If you have any questions about your rights or obligations under the FLSA, either as an employer or as an employee, it is critically important that you consult with a competent employment law attorney. This is an area in which it is extremely easy to make a costly mistake if you are not careful!

For more information, contact Stephen E. Imm at (513) 943-5678.