Presented by Seth P. Briskin, Esq. Not to be reproduced in any manner without prior consent 625245.

Presented by Seth P. Briskin, Esq.Not to be reproduced in any manner without prior consent

Hot Topics in Employment Law

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Thank you Sponsors

Thank you to:

CSHRM Board for their Support:

Lauren RudmanBeth Warholy

Pam SmithFrank Zupan

Save the Date

• SMA Upcoming Programs and Conference: – March 27th- Total Rewards- 7:30-9:30am– May 8nd- Conference- 7:30-2:30 at Hyland, creator of OnBase

• CSHRM Upcoming Events:– January 28th - CSHRM Cleveland Cavaliers Night– February 4th – Diversity Event: Employing People with Disabilities– February 5th – Disrupt HR

• NOHRC Conference- March 20th – Seth will be presenting at 3:15 p.m

Register on CSHRM website

• This program is approved for 1 HR Certification credit.

• Submit questions via “Chat” & address the questions to “Staff.”

• Questions will be answered in the order that they are received. We will address as many questions as time permits

• Please reach out to [email protected] with additional questions.

Today’s Program

Experience and Background • Provides labor and employment counsel to private, public sector and non-profit

organizations• Represents employers and executives in employment litigation, wage and hour

matters, non-competition and trade secret litigation, workers’ compensation claims/appeals, union organizing drives, collective bargaining, labor arbitrations and all manner of disputes involving the NLRB, OSHA, EEOC, OCRC, BWC and the Department of Labor

• Prepares employment and consulting contracts, confidentiality and non-competition agreements and advises clients on severance packages and separation agreements

• Frequently speaks on labor and employment law issues• Interned for the National Labor Relations Board, Cleveland, Ohio• Practiced at boutique and general practice law firms where he developed his

experience in all areas of labor and employment law• Consistently named an Ohio “Super Lawyer” and awarded Crain’s Cleveland

Business “40 Under 40” in 2005

Memberships & Associations • Ohio State and Cleveland Metropolitan Bar Associations• Officer on the Executive Boards of the Cleveland Leadership Center, American Jewish

Committee, Beachwood Chamber of Commerce and the Cleveland Jewish News• Former Chairman of Cleveland Bridge Builders

Seth P. BriskinChair, Labor & Employment Group

[email protected]

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Employment Law Alphabet Soup

FMLA

WARN

ADAFCRA

HIPAA

FLSAOSHA

NLRA

ADEA

IRCA

EEO

PDACOBRA

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Employment At Will

• Terminate the Employment Relationship With or Without Cause

• Even for Cause Morally Wrong

• Without Legal Liability

Even though at-will employment is the established law in Ohio, it

is under constant attack!

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Exceptions To The Employment At Will Doctrine

• Promissory Estoppel

• Implied Contract

• Public Policy

• Protected Classification Discrimination

Wrongful Termination

EMPLOYMENT LAW 101

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Background Screening Legal Protections

Background screening promotes a safe and profitable workplace. It protects an employer from:

• Negligent hiring/retention lawsuits• Wrongful termination• Sexual/other harassment claims• Theft• Wasting recruiting time

Screening employees/applicants may also serve as a competitive advantage for employers.

Fair Credit Reporting Act (FCRA)

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Fair and Accurate Credit Transactions Act (“FACT Act”) of 2003

• Reaction to the 1999 FTC “Vail Letter”• Investigation of workplace misconduct by an outside third

party is no longer covered by the FCRA’s prior notice requirement.

• Attempts to control identity theft• Requires proper destruction of consumer information by

companies who retain/request this information.

Fair Credit Reporting Act (FCRA)

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Americans With Disabilities Act (ADA)

• Prohibits discrimination against a qualified individual with a disability (physical or mental disabilities)

• Employers required to make “reasonable accommodation” unless it causes an “undue hardship”

• Definition of disability under the ADA– Substantially limits one or more major life activities– Having a record of such impairment, or – Being regarded as having such an impairment

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• The ADA Amendments Act of 2008 (the “Act”) took effect January 1, 2009

• The Act was intended to expand and clarify the definition of disability under the ADA

• Expanded? YES. Clarified? NO!!

The Americans With Disabilities Amendments Act (ADAAA)

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• Expanded definition of “substantially limits”• Expanded definition of “major life activities”• Disregard of mitigating measures / current

abilities• Expanded definition of “regarded as”

disabled• Prohibition on use of uncorrected vision as

selection criteria

What is a Disability Under the Act?

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Your ADA Analysis --What You Need to Consider

• Essential job functions• Reasonable accommodation• Types of reasonable

accommodation• The accommodation process• When is an accommodation

unreasonable?• What is an undue hardship?• Issue of “direct threat” to health

and safety of the disabled individual or to others

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Age Discrimination in Employment Act

Prohibits discrimination based on an employee’s or applicant’s age for individuals age 40 or over

Older Workers Benefit Protection Act– Creates additional requirements on

employers who are offering severance agreements to one or more employees over the age of 40

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The Fair Labor Standards Act (FLSA)

• Minimum wage• Child labor • Record keeping • Overtime requirements

- Exempt vs. non-exempt employees

• Common violations- Independent contractors- Breaks / “suffered to work”

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Class Action LawsuitsWage and hour class action lawsuits continue to outpace all other types of employment litigation in the federal and state courts. These class claims typically fall into one of two groups:

• Improper exemptions (exempt/non-exempt) • “Off-clock” work claims/failure to pay for all compensable time

(claims for back-pay, vacation/PTO time, including overtime)

8,119 FLSA cases were filed between May 1, 2013 and April 30, 2014 (Previous year: 7,388 between 5/1/12 to 4/30/13)—increase of 10%.

These stats do NOT capture any wage and hour lawsuits based on state law claims or brought in Circuit Courts.

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Abadeer, et al. v. Tyson Foods, Inc., et al. (U.S. District Court, Middle District, TN)

• Tyson Meat Processing Plant• Employees brought suit claiming

additional time to put on specialized clothing (Donning-Doffing claim)

• Court approves $7.8M Settlement (7/18/14)

Class Action Lawsuits

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• Minimum Wage Violation– Pimp my Ride (DOL v. West

Coast Customs of Corona)

Class Action Lawsuits

– Raider Cheerleaders(Lacy T. v. Oakland Raiders)

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• Ensure Compliance with State and Federal Law– Audit your policies and practices (safe harbor, pay

for all work time, require accurate time reporting, prohibit off-the-clock work, proper OT calculations)

– Audit your employee classifications– Audit your record-keeping practices– Provide wage and hour training for HR, supervisors

and employees– Create open door complaint reporting system

What Can You Do to Protect Yourself Against the Class Action Explosion?

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• AT&T Mobility v. Concepcion (Sup.Ct. 2011)– Companies may require employees to waive their rights to bring or

participate in a class action in court by requiring mandatory arbitration:

– Benefits:• not public• confidential• less chance of big damages and runaway juries• reduced litigation costs• savings on appeals

– Negatives:• costs to create• may be subject to challenge

What Can you Do to Protect Yourself Against the Class Action Explosion?

Convictions of Owner, Plant Manager and Office Manager for:• Making false statements• Demanding kickbacks from

employees• Second set of books• Failure to pay OT (workers

worked 96 hrs./wk.)

DOL’s Latest Weapon – Jail Time

DOL v. High Performance Ropes of America

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• Manipulation of employee work days / weeks (rounding up / down)

• FLSA’s “Companionship Exemption”• State wage statutes requiring immediate

payment of unpaid wages / salary to terminated employees

• State minimum wage increases• Obama Administration proposed exemption

changes and Executive Orders

Other Hot Wage & Hour Topics

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Other Hot Wage & Hour Topics

• Off-clock work– PDA’s/Smart phones– Meal Periods

• FLSA retaliation expanded(Kasten v. Saint Gobain, US Sup.Ct. 2011)

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Family and Medical Leave Act of 1993

• General Provisions• Who is eligible?• What type of leave is an

employee entitled to?• Employment protection• More leave for

military/caregivers

*ADA issues with not giving leaves

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Title VII of the Civil Rights Act of 1964

• Prohibits discrimination on the basis of:– Race– Color– Religion– Sex – Sexual Orientation[Not Yet!]– Transgender – yes!– National Origin

• Covers employers with 15 or more employees

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Sexual Harassment (Title VII)

– Prohibited conduct includes sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature

– Also may include repeated offensive conduct directed at an individual because of his/her gender or that demeans a particular gender

Prohibits unwelcome or offensive conduct toward an individual because of his/her gender

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Types of Sexual Harassment

(1) Quid Pro Quo

(2) Hostile Environment

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Hostile EnvironmentSexual Harassment• Unwelcome Conduct• Severe or Pervasive• Substantially Interferes with

Performance or Creates Intimidating or Hostile or Offensive Environment

• May be committed by co-workers, supervisors or outside third parties

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Not Covered By Title VII? Have No Fear – OCRC 4112 Is Here!

• Prohibits discrimination based on:– Race– Color– Religion– Sex– National Origin– Handicap– Age – Ancestry

• Covers employers with 4 or more employees• Allows supervisors to be sued individually!!

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Additional Employment Alphabet Soup

• EEO – Equal Employment Opportunity Employers or Policies

• GINA – Genetic Information Nondiscrimination Act of 2009

• IRCA – Immigration Reform and Control Act of 1986

• NLRA – National Labor Relations Act of 1935*

• OSHA – The Occupational Safety and Health Act of 1970**A lot of administrative rulemaking

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Additional Employment Alphabet Soup

• WARN – The Worker Adjustment and Retraining Notification Act of 1988

• USERRA – The Uniformed Services Employment and Reemployment Rights Act

• PDA – The Pregnancy Discrimination Act of 1978

• BWC - Workers Compensation (O.R.C. §4123)

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PROACTIVE MEASURES TO AVOID EMPLOYMENT LAWSUITS

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Preventative Measures

• Employment Applications• Employee Handbooks/Training• Employment Agreements• Non-Competition/Non-Solicitation Agreements• Severance Agreements• Supervisory Training• ADR Programs• Employment Law Audits

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Employment Application• Employer’s First Opportunity to

Learn Valuable Information such as:– Educational Background– Prior Employment– References– Skills and Experience– Restrictive Covenants

• Criminal Background Screening – Ban the Box?

• A New Aggressive Tactic!

Pursuant to the Sixth Circuit’s decision in Thurman v. Daimler Chrysler, you may now require employees to sign a waiver on their job application which shortens the statute of limitations on discrimination claims.

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Employee Handbooks / TrainingPolicies to be included in a handbook:

• At-Will Employment Disclaimers• Anti-Harassment Policies• FMLA Policy• FLSA Exemption/Safe Harbor Language• ADA Policy• Violence in the Workplace• Disciplinary Policies/Procedures• Substance Abuse/Workers Comp. Notice• Breastfeeding Policy• Social Media/IT Policy• Acknowledgement Form

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Employment Agreements

Common Elements of an Employment Agreement:• Salary, Equity and Benefits Provisions• Job Duties / Expectations• Non-Competition/Non-Solicitation Provisions• Confidentiality/Trade Secret Provision• At-Will vs. Just Cause Employment• Choice of Law/Arbitration Agreement• No Restrictions on Employment Provision• Severance and General Release Provisions

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Non-Competition / Non-Solicitation Agreements

• Enforceable in Ohio • “Blue Pencil Rule”• Must be reasonable in scope of time and geographic

limitations• Must have a protectable interest• Prevents solicitation of clients and employees• May contain liquidated damages provision

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Severance Agreements

Common Elements:• Severance/Continued Salary and Benefits/Stock Vesting

Provisions• Termination vs. Voluntary Resignation• General Release and Waiver of all Employment Litigation

Claims• Confidentiality Agreement• Restrictive Covenants• Non-Disparagement• Litigation Cooperation• Return of Company Property• OWBPA Review and Revocation Provisions

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Supervisory TrainingCommon Subjects:

• ADA Training• Sex Harassment and Discrimination• Handbook & Employment Policies• Safety & Health• Wage & Hour• Substance Abuse/Alcohol• Union Avoidance• Disciplinary/Termination Procedures

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Alternative Dispute Resolution (ADR) Programs

Common Elements of an ADR:• No contract of employment (at-will)• Consideration given/voluntary agreement• Clear waiver of right to sue for all claims of

discrimination• Specify controlling law and arbitration selection

method• Create due process, strict legal processes, full court

remedies• Cannot make the ADR a financial burden for employee

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Employment Audits

Commonly review:• All Employment Forms• Handbooks• Safety Procedures/Rules• Workers Compensation Claims / Experience• Wage and Hour Compliance• Disciplinary Procedures/Personnel Files• Review of All Employment Agreements

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Litigation Wrap-Up

• What are the Causes of Litigation?

• Why Avoid Litigation?

• How to Avoid Litigation.

Questions and Answers

28601 Chagrin Boulevard, Suite 500Cleveland, OH 44122

216-831-0042 – main office216-831-0542 – facsimile

[email protected] www.meyersroman.com

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