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Category Archives: Labor and Employment Law

Ohio Employment Law: What exactly IS sexual harassment?

Author By Stephen E. ImmPosted on

The term “sexual harassment” is in constant use these days. Hardly a day goes by without a new story about a politician, celebrity, athlete, businessman, or even judge being accused of it. But what exactly does the term “sexual harassment” mean?

The term means something different in the law than it does in ordinary conversation. If we hear an employee made a sexually inappropriate comment in front of coworkers, or hear that he told a sexually explicit joke in the workplace, we are likely to say or think, “That’s sexual harassment.” And most people would understand what we mean, and would agree with our description.

But that’s not what the law means when analyzing a court case of “sexual harassment.”

Why the difference? And what is the legal definition of “sexual harassment?”

Basically, there are two types of sexual harassment under the law. One is called “quid pro quo.” This is a Latin phrase meaning “this for that.” In a quid pro quo case of harassment, the receipt of employment benefits (such as keeping one’s job, getting a promotion, etc.) is made to hinge on granting sexual favors. A classic case of quid pro quo sexual harassment would be an employee being fired because she wouldn’t go out with her boss. The conditioning of benefits in a quid pro quo case doesn’t have to be explicit. In fact, it rarely is. More often the “quid pro quo” is implied, rather than stated openly. Either way, it is completely illegal.

The other type of sexual harassment is called a “hostile work environment.” In this case, the employee is not pressured to give in to sexual advances in order to keep her job or obtain benefits, but rather is subject to a pattern of inappropriate behavior in the workplace. The behavior is usually sexual in nature, and has the effect of causing employees of a certain gender – usually women – to feel threatened, humiliated, or harassed at work. Examples include physical acts like unwanted touching, and non-physical behavior like lewd comments or “jokes,” and the display of sexuality explicit material.

A legal case for a “hostile work environment” requires that the offensive behavior be “severe or pervasive.” The occasional inappropriate joke or comment usually will not – by itself – be enough to create what the law considers a hostile work environment. But if it is happening every other day it can be a different story. And if the behavior crosses over into the physical – unwelcome touching or assault, for instance – or if the language used is physically threatening, a “hostile work environment” can be created by even a single act.

These lines – such as between what is “severe or pervasive” and what isn’t – can sometimes be difficult to see. Both employees and employers should reach out to qualified employment counsel to understand these issues and protect their rights. Now more than ever.

Ohio Employment Law: Are Employers Allowed to Search their Employees?

Author By Stephen E. ImmPosted on
Let’s say a retail store is experiencing a high volume of theft. It suspects that some of its inventory loss may be due to employee theft. So it decides to start searching its employees when they leave the store. This is being done randomly, and is not necessarily based on individualized suspicion of particular employees. Can the employer do this? Is it legal? If so, exactly how far can an employer go in searching its employees?
 
There is a huge difference in this area of the law between government employers and private employers. Government employers are subject to the fourth amendment of the United States Constitution, which prohibits unreasonable searches and seizures. This means that a government employer normally may not search an employee, or his/her personal effects, without “probable cause” to believe the employee has done something wrong.
 
Private employers, however, are not bound by the fourth amendment. They therefore have a much freer hand when it comes to employee searches. Since the worksite is the property of the employer, it ordinarily has the right to inspect any part of that property – desks, lockers, computers, etc. – when it sees fit to do so. This is not an unlimited right, however. The employer cannot, of course, go into areas where its employees have a justifiable expectation of privacy, such as bathrooms.
 
But what about searching employees’ purses or bags or briefcases while the employees are on the employer’s property? This is a little trickier. If an employer has clearly informed its employees, in advance of any searches, that their personal belongings may be subject to search while they are on the employer’s premises, then it is likely that the employees do not have a “reasonable expectation of privacy” with respect to those articles when they are at work. Accordingly, under those circumstances the search of an employee’s personal effects typically will not violate the employee’s rights. Employers must clearly communicate, however, that they reserve the right to conduct these searches. This can be done in an employee handbook, or by clearly posted signs in the workplace, such as in a break room or other common areas.
 
If employees are not informed in advance that their personal effects may be searched while on the employer’s property, an employer’s search of such items as purses or briefcases might be considered illegal by a court.
 
Employers should keep in mind, however, that just because it can conduct a particular search doesn’t mean that it should. As a matter of good employee relations, employers should always be respectful of their employees, and should think carefully before subjecting them to searches that a reasonable person would consider unduly intrusive.
 
If you have questions or concerns about your rights in this area, whether as an employer or employee, be sure to consult competent legal counsel before taking any action or making any decisions.

 

What should an employer do if an employee shows signs of possible mental illness?

Author By Stephen E. ImmPosted on
A previously good employee is starting to behave erratically or strangely. It is starting to disrupt the workplace. The change is such that it appears it may be tied to mental health problems. How should a smart employer handle this?

The Americans with Disabilities Act (“ADA”) bars employers with 15 workers or more from discriminating against workers when an impairment “substantially limits” their ability to engage in “one or more major life activities.” Many state laws include similar prohibitions. A disability or impairment covered by these laws can be either physical or mental. So the employer in this scenario may be dealing with a “disabled” employee. And the law applies whether an employer knows a worker has a mental impairment, or merely perceives one.

Many employers’ first instinct when they think behavior may be tied to a mental impairment — a worker starts being confrontational or is “acting out” in ways he never did before, for example — is to ask what it can do to help. This is not the best approach. The employer should simply document and discipline the inappropriate behavior without speculating as to its causes. Focus on the behavior– not where it might be coming from.

The ADA does allow employers to request that workers submit to a “fitness-for-duty” exam under certain circumstances. If it has a reasonable belief, based on objective evidence, that a worker has a condition that impairs his ability to perform essential job functions, or that causes him to pose a “direct threat” to health or safety, it can require such an exam. This exam cannot be aimed at learning whether the worker is disabled, but a doctor can ask disability-related questions if they are “job-related and consistent with business necessity.”

Documentation is critical. If a company has solid, documented evidence that an employee poses a threat, or can’t perform essential parts of the job, it can require him to submit to an examination as a condition of continued employment.

In addition to the ADA’s bar on discrimination, the law allows protected workers to request a “reasonable accommodation” needed to perform their job, so long as it doesn’t pose an “undue hardship” on the employer. What is “reasonable,” and what constitutes “undue,” will vary from case to case, so employers should approach the situation practically, and should get legal advice. An employer doesn’t have to give whatever accommodation a worker requests, but it does have to try in good faith to find something that works for both it and the employee.

Litigation is a risk employers can’t totally eliminate when the ADA is involved. But by documenting performance and disciplinary issues without assuming that mental or physical illness is the cause, and by offering reasonable accommodations where appropriate, an employer can put itself in a strong position to successfully defend itself.

 

Ohio Employment Law: What is “Reverse” Discrimination?

Author By Stephen E. ImmPosted on
When most people will hear the words “employment discrimination,” they immediately think of the alleged victims as being members of minority groups, women, or older workers. Although most discrimination claims are filed by these groups of people, it might surprise you to know that many of the major laws prohibiting discrimination in employment decisions can also apply to men, and to members of a “majority” race or ethnicity.
 
The most important federal law prohibiting employment discrimination is Title VII of the Civil Rights Act of 1964. All or nearly all of the 50 states have comparable laws that are patterned after Title VII.
 
Although the 1964 Civil Rights Act was passed primarily to address discrimination against African-Americans, the prohibitions against employment discrimination contained in Title VII of the Act are much broader than that. The law makes  illegal any employment discrimination that is based on “race, color, sex, religion, or national origin.” By the plain language of the statute, this prohibits employment discrimination against men as well as women, and against Caucasians as well as members of minority groups. And courts have interpreted the statute to permit claims of “reverse” discrimination brought by employees who are not members of historically disadvantaged groups.
 
While courts have said that claims of reverse discrimination ARE subject to somewhat closer scrutiny – and a somewhat higher standard of proof – than the more common forms of discrimination claims, such claims have been permitted to move forward (and have been successful) where the evidence points to a finding that a male employee or job applicant, for instance, was treated less favorably than a female because of his gender.
 
This principle even extends to the area of sexual harassment. Obviously, it has been vastly more common for women to be victimized by harassment in the workplace due to their gender. But under the law, a man sexually harassed by a female manager or supervisor has just as much right to pursue a claim as a woman harassed by a male superior or coworker.
 
There are exceptions to the rule that “reverse discrimination” is just as illegal as the more “traditional” types of discrimination. The age discrimination laws, for instance, cannot be used to protect a younger worker from discrimination practiced in favor of older workers. And the disability discrimination laws, such as the ADA, do not protect non-disabled employees from discrimination in favor of disabled employees.
 
Nevertheless, “reverse” discrimination is a very real and legally recognized occurrence. Both employers and employees should be cognizant of this fact in their businesses and employment relationships. Failure to do so can be a costly mistake!

 

Ohio Employment Law: Can you be fired for flipping off the President?

Author By Stephen E. ImmPosted on
Some of you may have seen the “viral” image of a woman named Julie Briskman, who was recently photographed raising her middle finger to a presidential motorcade that passed her while she was bicycling in Virginia. Ms. Briskman was subsequently fired from her job with Akima, LLC, a private contractor that does business with the federal government.
 
Ms. Briskman had made the photograph in question her “profile picture” on her Facebook page. Her employer saw the photograph, and fired her for allegedly violating the company’s social media policy. That policy apparently prohibited employees from posting “lewd or obscene” content on social media sites.
 
So, you might say, what about the First Amendment? What about freedom of speech? Didn’t Ms. Briskman have the right to express her opinion of the President? How can she be fired for that?
 
The civil liberties that are guaranteed to us by the Bill of Rights protect us from adverse action by the government, but not by private employers. Since Akima is a private company, Ms. Briskman was not protected from termination for expressing her political opinions. If she had worked for a government agency, the answer might well have been different.
 
Another interesting wrinkle about the story, though, is that another employee of Akima who posted an obscene message on a social media site was not fired by the Company. If Ms. Briskman was treated differently than the other employee because of her gender, race, or age, she might still have grounds for legal action.
 
This story presents a timely reminder to employers to review and update their employee handbooks, and to make sure that they have appropriate social media policies in place. Among other things, a good social media policy will prohibit employees from causing harm to their employer in places like Facebook, Instagram, and Twitter, while also respecting the rights of employees to their privacy and opinions. Employees must also be permitted to discuss the terms and conditions of their employment with one another, without reprisal from their employers.
 
By the way, if you are feeling sorry for Ms. Briskman, you should know that she apparently received thousands of job offers from all across the country after the public found out what happened to her. So she apparently is going to be okay.
 
If you are an employer or employee who might need assistance navigating these issues, it would be wise to reach out to competent employment counsel. These matters present many potential traps for the unwary!

 

Ohio Employment Law: What does #MeToo Mean for the Modern Workplace?

Author By Stephen E. ImmPosted on

The social media movement represented by #MeToo began about ten years ago.  Recently, however, in response to revelations about sexual assault and harassment by movie producer Harvey Weinstein, its use has skyrocketed. Literally millions of women (and some men) all over the world – and in every industry – have used the hashtag in recent weeks to come forward about their experiences of being sexually victimized. For many, many women, this social media movement has provided an outlet that didn’t previously exist to express their anger and outrage over being targeted for abuse or harassment because of their gender.

The #MeToo movement is likely to have far-reaching consequences in the workplace, where many of us spend close to half our waking hours. Sexual harassment and abuse have been historically under-reported, as women have often been reluctant or afraid to come forward. #MeToo is changing that, at least on social media. It is likely that more victims will now also feel emboldened to tell their stories of abuse to their HR departments – and to lawyers, judges, and juries.

Sexual harassment in the workplace is illegal, as it is a form of sex discrimination. While not every inappropriate comment to an employee will – by itself – create a hostile work environment, when the comments or other behaviors become “severe or pervasive,” the conduct is illegal, and the employee can recover various forms of damages for the harm it causes – both economically and emotionally.

Employers also need to be mindful of the #MeToo movement. They will see more reports of sexual harassment made to their HR personnel, and they must be ready to respond appropriately. That means having the right employment policies and procedures in place, and doing thorough and fair investigations of any harassment complaints. It also means training their employees in how to recognize, prevent, and stop sexual harassment.

Sexual harassment is about power. And high ranking executives are very powerful people in their companies. One of the reasons people like Harvey Weinstein have gotten away with so much for so long is because they hold so much power, and victims have been afraid to challenge that power. Thanks in part to #MeToo, that appears to be changing.

Ohio Employment Law: Supreme Court to Decide Whether to Limit Class Action Suits in Employment Cases

Author By Stephen E. ImmPosted on

In recent decades, a great many employers – especially larger companies – have moved to require their employees to sign arbitration agreements as a condition of employment. The agreements are typically included in a big stack of papers employees are given – and never read – on their first day. They usually sign the agreements without thinking.

Courts have historically favored these agreements as a way to limit the cost and duration of litigation. (Arbitration is normally a more limited process than litigation.) Employers like them because they believe arbitrators are more likely to be sympathetic to them than juries are. Employee advocates don’t like them for the same reason.

Some employers have recently taken to using these agreements as a way to accomplish another goal – eliminating class action suits brought by large groups of employees. Employers strongly dislike class action suits, and some have put clauses in their arbitration agreements that say the employee will not bring or join in any class actions. The employee thus agrees that any claims he or she has against the employer will be brought individually – rather than as part of a class – and that they will be brought in arbitration rather than in court.

The question has arisen, however, as to whether such “no class action” clauses are legal and enforceable. The reason this is an issue is that federal labor law guarantees employees the right to engage in “concerted activity” with one another about the terms and conditions of their employment. A class action brought by multiple employees is by definition a form of “concerted activity.” So a clause prohibiting class action participation by employees arguably violates federal law, and should not be enforced.

Different courts and agencies have reached different conclusions about this, and the U.S. Supreme Court has now taken up three cases raising the issue. We should know in the coming months whether employers will be permitted to avoid class action suits through the use of these arbitration clauses. Advocates for both employers and employees are watching very closely.

Ohio Employment Law: Can an Employee lawfully be fired based on a completely False Accusation?

Author By Stephen E. ImmPosted on
Suppose someone is falsely charged with a crime. They’re innocent until proven guilty, right? They have the right to a trial, to a lawyer, and to confront their accusers, right? They have a right to defend themselves and be judged by a jury of their peers, right? And if they are innocent, they may be exonerated and vindicated, right?
 
All true. And these rights are a cherished part of our democracy. It’s all part of what we Americans call “Justice.” And most of us would see the heavens fall before we would allow a citizen to be punished for committing a crime without having  these rights honored.
 
But suppose someone is falsely accused of doing something wrong AT WORK. Say they were accused of committing sexual harassment when they did no such thing. Or suppose they were falsely accused of doctoring time records, or some other act of dishonesty. And suppose they get fired on the basis of this false accusation. Surely they would have some protection from such false accusations, right? After all, getting fired is serious business. It can harm someone as much or more than getting charged with a crime.
 
The reality, though, is that for most employees there is little or no protection from being fired on the basis of a false accusation. Unless the employee is in a union or in the classified civil service of the government, the employee is considered “at will.” This means that they serve “at the will” of their employer, and thus that they can be fired for any reason that is not “contrary to law.” This can include entirely false and even “made up” reasons. So unless the employer’s ultimate motivation for firing the employee is an illegal consideration (like discrimination) there is often no legal remedy for the “at will” employee who is fired on the basis of a false accusation. They can be punished without a trial, without a fair chance to defend themselves, and without any due process.
 
This is hard for many people to understand or believe. We are a nation that believes in justice, fairness, and rights. When I tell clients that an at will employee may not have any legal recourse after being fired on the basis of a false accusation, I am often met with blank stares. People have trouble believing that can be true in America. But the truth is that few people have less rights than an at will employee fired on the basis of a false allegation.
 
If the employer repeats the false accusation to third parties – such as to prospective employers who call for a reference on the fired employee – then in that instance the employer may be liable for defamation of the employee’s character.
 
But otherwise the falsely accused employee often can get no “justice” for what may be an extremely unjust act.

 

Ohio Employment Law: Does the Now Famous Fired Engineer Have a Legal Claim Against Google?

Author By Stephen E. ImmPosted on

There has been a firestorm of controversy recently over Google’s decision to fire James Damore. Damore is the software engineer who wrote an internal memo – subsequently leaked – that criticized the company’s policies on diversity and inclusion.

Specifically, Damore claimed that biological differences between men and women may account for the fact that women are under-represented in tech positions at Google and elsewhere. Google fired Damore for his statements, and his termination has been widely debated – earning praise from liberal groups and scorn from conservatives.

But was Damore’s firing LEGAL? Does he have a legal case against Google for wrongful discharge?

For a lot of people, this is a First Amendment issue. They say, “Doesn’t he have the right to express himself? Aren’t his Constitutional rights being violated if he is fired for speaking his mind, whether we agree with him or not?”

The answer to THAT question is “no.” The First Amendment applies to actions taken by the government, not by private employers. It would protect Damore from any action taken by the government, but not from action taken by Google.

But Damore still might have a case. He has already filed an unfair labor practice charge with the National Labor Relations Board. The law says that employees are protected when they engage in “concerted activity” with one another regarding the terms and conditions of their employment. Damore’s claim with the NLRB alleges that his memo – sent to other Google employees – was “concerted activity” about a company policy that affected the employment conditions of he and his fellow employees.

Additionally, Damore claimed in his memo that the company’s diversity program discriminated against men, because – he claimed – it gave female applicants and employees unfair advantages in hiring and promotion decisions. He can claim – and probably will claim – that he was terminated in retaliation for opposing what HE saw as discrimination in the workplace. Firing an employee for expressing opposition to what they REASONABLY BELIEVE is unlawful discrimination is illegal.

Note that the employee doesn’t have to be RIGHT that illegal discrimination is occurring. He or she just has to “reasonably believe,” in good faith, that it is. If they have that reasonable belief, the employee is often protected from retaliation for expressing their opposition to the practice.

This case raises some very interesting issues about employment law and discrimination, and will be very closely watched by many different advocacy groups – and practicing lawyers like us – in the coming months and years.

Ohio Employment Law: What is a “Social Media Policy”?

Author By Stephen E. ImmPosted on
Labor and employment attorney Stephen E. Imm

Something that didn’t even exist 15 years ago is now all the rage. I’m talking about “Social Media Policies” in the workplace.

What does this mean? Why do many employers have these policies? Are they important? Are there legal rules relating to these policies?

I don’t need to tell you about the explosion and popularity of social media sites like Facebook, Twitter, Instagram, etc. You know, those things that those of us over a certain age have been introduced to by our kids.

Well, it’s not surprising that many people post on these sites about their experiences at work. Usually the posts are benign and inoffensive. But sometimes they can be serious or controversial. And sometimes they can be downright nasty. They may criticize co-workers or supervisors. They may badmouth the employer. They may complain about working conditions or pay. They may argue in favor of organizing a union at work. They may be threatening or abusive.

Can employers limit or restrict what their employees say in social media content related to work? Can it discipline or discharge an employee based on what he or she says on Facebook and the like? Do employees have any rights in this area?

For “at will” employees – that is employees who are not in a union, do not have a contract, and do not work for the government in a civil service position – employers have a fairly free hand to discipline employees for social media posts that the employer doesn’t like. If the employee makes statements that injure the employer’s reputation, that violate its anti-discrimination or harassment policies, that threaten co-workers, or that exhibit a poor attitude toward work – to give just a few examples – the employer is generally permitted to act on that, and to discipline or discharge the employee. This does not infringe on the employee’s right to “free speech” since the employer is a private entity and is not acting as the government.

Even employees of private, non-union employers, however, do have certain rights with regard to social media postings. All employees, for instance, have the right to engage in “concerted activity” to improve the terms and conditions of their employment, or to discuss possible organization for their mutual benefit. So if employees are talking together on-line about their pay, or safety in the workplace, or the way they are being treated by management, employers may not take adverse action against the employees for doing those kinds of things.

It sometimes can be hard to distinguish what is and is not permitted in these cases. For instance, if an employee goes on a profanity-filled rant about his working conditions, and is disrespectful or even hateful toward his managers, can the employer discipline him for being disrespectful and hateful, or would the employee’s rant be considered “concerted activity” if it is directed to his co-workers and discusses their mutual working conditions?

If you have questions about your rights as an employer or employee, or if you want some guidance in implementing an appropriate and legal social media policy, be sure to contact competent legal counsel familiar with the latest developments in this quickly-developing area.

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