Common Practice Areas

Disciplining and Terminating Safely:

Employee discipline and termination can be a landmine for employers. But businesses can reduce potential liability by considering such decisions carefully. Following handbook provisions and other policies, fully investigating complaints, documenting issues carefully, and acting consistently in applying discipline are essential. And if termination is necessary, details such as an employee’s membership in a protected class, the employee’s disability and leave status, the employee’s prior complaints, the employee’s pay history, and many other factors must be considered. Virtually all terminations should be reviewed by competent counsel.

Discrimination:

Discrimination means more than just different treatment of individual employees. It means receiving worse treatment than others because of membership in a particular category that is protected by law. Examples of protected categories are persons over 40, women, disabled persons, and persons of different nationalities. Similarly, laws prohibit employers from taking adverse employment actions because of a person’s race or religion, whether or not that race or religion is a minority. However, the law does not offer protection to employees who receive worse treatment because of a “personality conflict” with a supervisor.
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EEOC and OCRC Representation:

The Equal Employment Opportunity Commission (EEOC) and the Ohio Civil Rights Commission (OCRC) have jurisdiction over federal and state laws protecting employees against employment discrimination on the basis of race, color, religion, sex, pregnancy, age, disability, national origin, and genetic information, among others. Employees who claim that they suffered an adverse action that was motivated by one of these characteristics may file a claim with one of these agencies either with or without an attorney. Employers, however, should not appear before either agency without counsel. Obtaining a right to sue letter is a necessary prerequisite to filing a discrimination claim in the federal courts, and an employer’s EEOC position statement can be used against it in the subsequent federal litigation.

Employment Contracts:

Sometimes, it benefits employers to hire certain employees pursuant to an employment contract. Employers can use an employment contract to bind certain essential employees to their jobs. However, both parties are entitled to enforcement of that contract’s provisions. Whether an employment contract is beneficial and how it can be enforced are topics for discussion with a knowledgeable attorney.

Family and Medical Leave Act:

The FMLA permits eligible employees to take up to 12 workweeks of unpaid leave in a 12 month period for specified family and medical reasons. It applies only to employers who employ at least 50 persons. Employees are eligible only if they have worked for the employer for at least 12 months and a minimum of 1,250 hours. Employers may not terminate or retaliate against employees for taking FMLA leave. Issues such as eligibility, medical certification, and intermittent leave calculation often require an experienced attorney’s scrutiny.
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Handbooks:

Employee Manuals are an effective way for employers to communicate with their employees. They help employers set forth their expectations to their workers, and help employees understand what to expect from their employers. A well-written, updated handbook offers employers the most protection allowed by law, while a poorly written or outdated handbook can bind employers to promises they didn’t know they were making.

Interviewing Legally:

Both formal interviews and informal introductions to potential co-workers or managers are part of the hiring process. Everyone who will have contact with job candidates should understand which topics are appropriate for questioning and discussion. Even seemingly innocent questions can elicit protected information. Interviews must be designed only to determine a candidate’s capability to perform the essential functions of the job. Employers need carefully planned questions and a structured interview process to avoid liability.

Lay-Offs and Reductions in Force:

Also know as “downsizing” or “rightsizing,” lay-offs and RIFs are a common cost-cutting strategy in tough economic times. Developing and applying a uniform approach for selecting employees to be laid off is perhaps the most important factor in avoiding legal complications. Employers must ensure that their selection criteria don’t have an adverse impact on any one group of protected employees. Furthermore, federal statutes such as the Workers Adjustment Retraining and Notification Act (WARN) and the Employee Retirement Income Security Act (ERISA) might apply.

Non-Compete Agreements:

Agreements which restrict competition by an ex-employee are valid if they contain reasonable geographic and time restrictions. A non-compete clause’s terms are reasonable if they are no greater than required for the protection of the employer, do not impose undue hardship on the employee, and are not injurious to the public. Non-Compete Agreements are unusual types of contracts, because judges are empowered not only to determine if such Agreements are enforceable, but also are able to change such Agreements to make them comply with Ohio law. Legal advice is particularly important in drafting, enforcing or challenging these types of contracts.
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Overtime Claims:

For employees who are not exempt, the federal law known as the Fair Labor Standards Act requires overtime pay (time and a half) for all hours worked per week over 40. It also requires payment for work performed before “starting work” and after “clocking out” each day. Whether an employee is exempt from the FLSA is the subject of much litigation and requires expert analysis.
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Racial Harassment:

Harassment due to an employee’s race, color, or national origin is prohibited by federal and Ohio law. A racially hostile environment may be created by oral, written, graphic or physical conduct related to an employee’s race, color, or national origin that is sufficiently severe, persistent or pervasive so as to create an intimidating, hostile, or offensive work environment or interfere with the employee’s work performance. A company that was previously unaware of a harasser’s conduct, and that took immediate and effective action once the harassing conduct was brought to the company’s attention, is likely to successfully defend a lawsuit brought by a complaining employee where there has not been a significant change to the employee’s job status.
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Retaliation:

Retaliation occurs when an employer acts adversely towards an employee who has engaged in a protected activity. Many laws forbid retaliation. A few examples are laws which prohibit retaliation against employees who report illegal conduct by businesses, who speak out against discrimination or harassment in the workplace, who participate in an employer’s investigation into employee misconduct, who are related to or associated with someone who reports discrimination or harassment, or who file for worker’s compensation benefits.
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Severance Packages:

Employers have no obligation to offer a severance package to employees they terminate or lay off. However, if an employer has a severance plan, the employees covered by the terms of the plan are entitled to benefits. The employer may create a severance plan formally (in writing), or by longstanding practice. An employee who accepts an offer of severance may be required not to sue the employer in exchange for the severance payment.
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Sexual Harassment:

There are 2 types of sexual harassment: the creation of a hostile work environment based on sex and the promise of a reward in exchange for sexual favors. The law does not protect employees against simple teasing or isolated comments of a sexual nature, but does prohibit conduct that is severe and persistent. Employees who suffer either kind of harassment must comply with the reporting procedure in their employer’s sexual harassment policy. An employer with a sexual harassment policy may have some protection against these types of claims if an employee fails to follow the reporting procedures in the policy, or if the employer acts promptly and reasonably to address any harassment complaint.
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Supervisor Training:

Middle managers, supervisors, and leads usually are the first members of management to address a wide range of personnel issues. These include discipline problems, leave requests, overtime matters, sexual harassment complaints, handbook violations, and many other subjects. How these managers initially address these issues may determine whether a company is liable to an aggrieved employee. Repeated, effective training by an experienced professional will minimize an employer’s risk.

Whistleblower Protection:

Employees who “blow the whistle” on conduct prohibited by a specific law and/or conduct that may cause damage to public safety, waste tax dollars, or violate public trust in the government may be protected against retaliation and may even qualify for a “bounty” under certain circumstances. There are many state and federal laws that protect whistleblowers and some require that legal action be taken very quickly to provide protection. An attorney with experience in bringing and defending these claims can offer invaluable counsel.
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