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Category Archives: Labor and Employment Law

Can an At-Will Employee Be Fired for Engaging in a Political Protest?

Author By Todd McMurtryPosted on

Most people have strong opinions regarding politics — and sometimes the topic can be difficult to avoid in the workplace. If you express your views at your job or by participating in a political protest, you may be wondering if you can be legally terminated by your employer in retaliation.

Although the First Amendment provides federal and state employees with protection from retaliation for political speech and activities, it does not apply to employees of private organizations. In other words, if you engage in political protests and are then terminated from a job in the private sector, you have limited legal recourse.

Kentucky is an at-will employment state, which means that an employee can generally be fired at any time and for any reason or for no reason at all. Nevertheless, you cannot be terminated if the employer’s action would violate state or federal employment laws, such as those prohibiting discrimination based on race, gender, religion, disability, age or national origin. Employees are also legally protected from retaliation for filing a whistleblower complaint, reporting discrimination, taking FMLA leave, making a complaint regarding OSHA violations or pursuing a workers’ compensation claim.

In addition, some states have laws that protect employees when it comes to an employer’s conduct in attempting to influence how they vote. Kentucky’s law prohibits employers from dictating how employees should vote in state elections. An employer cannot:

  • Exert pressure on employees to vote a certain way
  • Coerce employees to vote for a specific political party
  • Direct employees to vote for a particular candidate for state office
  • Threaten to fire an employee based on their voting activity
  • Disseminate any communications that they expect employees to vote for any particular candidate
  • Bribe or induce employees to vote a specific way in a state election
  • Threaten employees with a company shutdown if a particular candidate wins an election.

Although the Kentucky statute does not explicitly mention retaliation against an employee for participation in a political protest, it may be persuasively argued that such actions are at least as intimidating as interference with an employee’s voting rights. An argument can also be made that retaliation for protesting is against public policy.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

Matthew Okiishi

Employment Legislation Update: Ohio debates harmonizing overtime law; Kentucky considers eliminating protections for smokers

Author By Matthew S. OkiishiPosted on

In order to best serve our clients, the Finney Law Firm’s Employment Law team closely tracks proposed Ohio, Kentucky, and federal employment legislation. The Ohio General Assembly and Kentucky Legislature are currently debating small, yet significant, changes to their employment laws.

Ohio

In Ohio, Senate Bill 47 would amend Ohio’s wage and hour statute, O.R.C. 4111.01, et seq., to incorporate the federal “Portal to Portal Act” into Ohio law. Should the bill pass, the proposed O.R.C. 4111.031 Ohio would explicitly eliminate employees from being compensated for time travelling to and from the place of performance, activities that are preliminary to or postliminary to the principal activities, and activities requiring insignificant or de minimis time. The rule would not apply where the activities are preformed either during the regular work day or during prescribed hours, or at the direction of the employer.

As S.B. 47 merely harmonizes Ohio law with the federal Fair Labor Standards Act, most Ohio employers should be unaffected by the changes. However, all employers should have a knowledgeable employment attorney review their policies and procedures for the handling of out of office work, especially in regards to emails. While a simple review of an email outside of work hours is likely de minimis time, an email requiring a substantive response or directing to an immediate task would likely not be exempt time under the proposed O.R.C 4111.031.

Kentucky

Kentucky is currently one of 26 states with laws that prohibit discriminating against smokers who otherwise comply with workplace rules. Senate Bill 258 would eliminate protections for smokers from K.R.S. 344.040, allowing employers to, among other things, require an employee or job applicant to abstain from smoking or using tobacco during or outside of the course of employment. Should the bill pass, Kentucky employers would be permitted to modify their handbook and hiring policies to exclude smokers and create a generally healthier work environment.

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Please contact Stephen E. Imm (513.943.5678) of Matthew Okiishi (‭513.943.6659) for help with an employment law issue.

Ohio House Bill 352 overhauls workplace discrimination laws

Author By Bradley M. GibsonPosted on

After years of lobbying from employers and defense counsel seeking to overhaul Ohio’s workplace discrimination laws, Governor DeWine signed House Bill 352 into law on January 12, 2021. The new law tips the scales in favor of employers in workplace discrimination cases. The changes will impact the way employment law attorneys practice and their clients pursue, or defend, workplace discrimination claims. Let’s take a look at some of the most significant changes to the law:

Limits Liability for Individual Supervisors

The new law excludes persons acting directly or indirectly in an employer’s interest from the definition of an “employer” under the Ohio Civil Rights Law. This change means that individual supervisors cannot be held personally liable for workplace discrimination claims if they were acting in the interest of an employer except in limited circumstances. Individual supervisors can be held personally liable if it is determined they acted outside of the scope of their employment, retaliated against the complainant, or obstructed the complainant from pursuing a claim with the Ohio Civil Rights Commission (OCRC).

Establishes a Specific Procedure for Employment Discrimination Claims

Under the current law, plaintiffs can file workplace discrimination claims with the OCRC or in a county court. The new law removes this choice and requires that an individual first file a charge with the OCRC before she may file a civil lawsuit. Once a charge is opened with the OCRC, the agency will begin an investigation. After sixty days, the complainant may request a notice of right to sue from the OCRC. After the complainant receives a notice of right to sue from the OCRC (or more than 45 days have passed without a response to the request) the complainant may file a civil lawsuit. An individual may also file a lawsuit if she obtains a notice of right to sue from the Equal Employment Opportunity Commission (the agency that enforces federal employment discrimination laws).

If the OCRC finds it probable that workplace discrimination has occurred, the complainant will have the choice of allowing the OCRC to prosecute the claim (including attempting to resolve the claim through alternative dispute resolution) or to withdraw from the administrative process and file a civil lawsuit in the county courts.

Statute of Limitations for Workplace Discrimination Claims

For most claims, the current law allows a person to bring a lawsuit alleging violation of the Ohio Civil Rights Law within six years after the alleged discriminatory act occurred. The new law requires a plaintiff to file suit based on workplace discrimination within two years. The statute of limitations is tolled while a charge based on the same allegations is pending with the OCRC.

Affirmative Defenses for Employers in Sexual Harassment Cases

The new law affords employers an affirmative defense to a claim for vicarious liability in which an employee alleges that a supervisor created a hostile work environment through sexually harassing behavior. In the typical sexual harassment case, an employee alleges that a specific boss or supervisor subjected the employee to a hostile work environment, and the employee seeks to hold both the supervisor and the company/employer liable. Under the new law, the employer can raise an affirmative defense to these claims if it can prove: (1) that it had an effective harassment policy; (2) that it properly educated employees about the policy and complaint procedures; (3) that it exercised reasonable care to prevent or promptly correct the harassing behavior; and (4) that the complainant failed to take advantage of any preventative or corrective opportunities. This is basically a re-statement of current federal law governing sexual harassment claims.

Age Discrimination Claims

Plaintiffs have previously pursued employment-based age discrimination claims through a variety of statutory mechanisms. The new law clarifies that age discrimination claims must be pursued through the same avenues in which all other workplace discrimination claims are pursued – i.e. – the process discussed above.

Takeaways

In order to pursue a workplace discrimination claim at the federal or state level, a plaintiff must have an understanding of the administrative procedures required by the EEOC and the OCRC. An individual subjected to workplace discrimination risks losing her claim if she fails to timely pursue an action or fails to adhere to the administrative procedures required to lodge a claim. The Finney Law Firm has experienced employment attorneys dedicated to protecting the rights of employers and employees in the workplace. We can help you navigate these claims at both the federal and state level.

 

 

For more information on this new statute, contact Brad Gibson (513.643.6661).  Read more about our Employment Law practice here.

Finney Law Firm Homepage Slide #2

Ohio Employment Law: Be Aware of Retaliation Claims!

Author By Stephen E. ImmPosted on

Those of us old enough to remember the Watergate scandal from the early 1970s will remember that what brought down Richard Nixon’s presidency was not the burglary of the Democratic National Headquarters in the Watergate Hotel, but rather the cover-up that followed the burglary. A similar principle can be seen in employment law. Often, it is not original act of alleged discrimination or harassment that brings down an employer, but rather a subsequent act of retaliation the employer engages in against the employee who accuses it of discrimination or harassment.

Let’s say you are an employer, and one of your employees claims that they are being paid less than their co-workers because of their sex or race. You, as the employer, happen to know that is not true. You have legitimate, non-discriminatory reasons for paying this particular worker less. Perhaps he is less productive than his co-workers, or perhaps he has less experience. Nevertheless, you find yourself being falsely accused of race or sex discrimination.

You understandably are angry, right? You have been falsely accused of a really bad act. Essentially, you have been accused of being a racist or sexist. Can’t you fire the employee who has made this false accusation against you?

No, you can’t. At least not legally.

Retaliation is a normal human response. That is why it happens so often. When any of us is attacked, regardless of whether the attack is physical or verbal or otherwise, our immediate impulse is to retaliate. It is almost a reflex. We instinctively act to defend ourselves from the attacker. That is why retaliation claims are so common, and why they get so many employers into trouble. When we retaliate, we are just doing what comes naturally.

Despite retaliation being a normal and natural human response, in this context the law says the employer CANNOT legally do it. As long as the employee has a reasonable belief that his allegation is true – even if he turns out to be completely wrong – the employer is prohibited from retaliating against him in any form for making the accusation. This principle not only applies when the accusation is made as part of a formal legal action, such as filing a charge with a government agency, but also when an accusation is made informally, such as in a conversation with a supervisor or human resources employee.

The prohibition against retaliation is very broad. Prohibited retaliation includes not just obvious actions like firing the employee, but also more subtle actions, such as harassment, excluding the employee from opportunities for overtime, or denying the employee a promotion.

If you have questions about your rights as an employer or an employee when it comes to retaliation, it is wise to seek the advice of an experienced employment attorney before you act. Just remember what happened to Richard Nixon!

Employment Law: US Supreme Court holds that discrimination based upon status of being gay or transgendered is prohibited

Author By Matthew S. OkiishiPosted on

On June 15, 2020, the Supreme Court of the United States, in Bostock v. Clayton County, Georgia, held that gay and transgender employees may not be fired merely for being gay or transgender. In a 6-3 decision, the Court held that termination on the basis of gender identity or sexual orientation violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of sex, race, color national origin, or religion.

The Court only addressed the issue of whether termination on the basis of gender identity or sexual orientation is prohibited under Title VII. However, employees and small businesses should be aware that it is a near certainty that all forms of discrimination on the basis of sexual orientation or gender identity, including harassment, pay disparity, and discrimination in hiring and promotion decisions, are now prohibited under Title VII.

Title VII only applies to employers with more than 15 employees, and current Ohio and Kentucky jurisprudence has held that their respective antidiscrimination laws (Revised Code 4112.02, et seq. and Kentucky Revised Statutes 344, et seq.) do not prohibit discrimination on the basis of sexual orientation or gender identity. As a result, it is possible that businesses with less than 15 employees will not be affected by Bostock. However, Ohio and Kentucky courts normally interpret their states’ antidiscrimination laws in a manner consistent with the interpretation of Title VII. Therefore, there is a very good chance that the protections now afforded to gay and transgender persons by Title VII will also be applied to smaller employers in Ohio and Kentucky.

The employment attorneys at the Finney Law Firm take pride in staying up-to-date with recent developments in employment law, including the recent Covid-19 leave requirements and expansion of Title VII protection. Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. For assistance with these matters, consult  Matthew S. Okiishi (513.943.6659) and Stephen E. Imm (513.943.5678).

Coronavirus Relief Bill Temporarily Expands Family and Medical Leave

Author By The Right of Shareholders to Inspect Corporate RecordsPosted on

The Families First Coronavirus Response Act (FFCRA), enacted as part of the national response to COVID-19, requires employers to allow employees expanded family and medical leave for reasons related to the coronavirus.

The new law temporarily expands the reach of the Family and Medical Leave Act (FMLA), which applies to all private employers with at least 50 employees who worked at least 20 weeks during the current or prior calendar year. Employees seeking FMLA leave generally must have worked at least 1,250 hours during the prior year.

The FFCRA includes the Emergency Family and Medical Leave Expansion Act, under which private employers with up to 500 employees and certain public employers must provide the following though December 31, 2020:

  • Family and medical leave — Up to 10 weeks of paid leave (plus two unpaid weeks) at two-thirds the employee’s rate of pay to employees who cannot work because he or she has a child whose school or daycare provider is closed due to COVID-19. This is called public health emergency leave. The maximum amount of emergency leave compensation is $200 per day and $10,000 total.
  • Paid sick leave for employee illness — 80 hours of paid sick leave at the employee’s full rate of pay if the employee cannot work due to quarantine and/or is experiencing COVID-19 symptoms.
  • Paid sick leave to care for a loved one — 80 hours of paid sick leave at two-thirds the employee’s rate of pay if he or she cannot work because of the need to care for an individual who is quarantined or to care for a child whose school or day care is closed due to COVID-19.

Every employee, regardless of tenure, is eligible for two weeks of paid sick time for COVID-19 reasons. In addition, employees who have been with the company for at least 30 days are eligible for the additional 10 weeks of paid leave. Public health emergency leave is available only to those affected by the coronavirus.

Certain employers with under 50 employees may be exempt from the new paid leave requirements.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

Ohio Employment Law: Matt Okiishi CBA panel discussion on COVID-19-related employment issues is on line

Author By Christopher P. FinneyPosted on
Attorney Matthew S. Okiishi

Today, Finney Law Firm attorney Matt Okiishi participated in a panel discussion for the public sponsored by the Cincinnati Bar Association on employment law issues presented by the COVID-19 crisis.

That discussion is now on line. You may watch it here.

Matt Okiishi devotes his practice to the employment law arena, representing both employers and employees in disputes, which include wage and hour issues, Family and Medical Leave Act issues, and illegal discrimination based upon age, race, gender, handicap, national origin, and other protected classifications. He has written extensively on COVID-19-related employment legislation on this blog.

Please contact Matt (513.943-6659) for help with your employment law issues.

 

 

Ohio Employment Law: Today, Attorney Matt Okiishi co-presents at the Cincinnati Bar Association on COVID-19 issues

Author By Christopher P. FinneyPosted on
Finney Law Firm attorney Matt Okiishi

Today at 3 PM Finney Law Firm attorney Matt Okiishi co-presents to the public (not just CBA members) at the Cincinnati Bar Association with attorney Kelly Mulloy Myers on “legal issues in the wake of COVID-19.”

It is simply a 30-minute program of pre-selected questions submitted by the public on the noted topic.

A link to the Facebook announcement about the program is here and you can sign up for the program thru that link.

When Can a Worker Sue for Defamation?

Author By Todd McMurtryPosted on

Your ability to earn a livelihood depends in large part on your reputation, which can be heavily based on what your present and previous employers or clients say about you. If you believe that anyone connected with your career made disparaging remarks that hurt your prospects for a job or a promotion, you may be entitled to sue for defamation, seeking money damages.

Proving defamation requires showing that the statements were false, of a defamatory nature, about the worker, made to a third party, made negligently or intentionally, and (depending on the defamatory nature of the statements) caused damages. Because of this exacting standard, there are important things to keep in mind when contemplating such a claim against an employer or other business associate:

  • Some communications are privileged — Employers usually may speak about an employee’s character and qualifications to other parties who have a legitimate interest in that information, such as a hirer or recruiter seeking a reference. This is a qualified privilege, however. It does not cover a false statement made with actual malice — namely, knowledge of its falsity or reckless disregard of whether or not it is true.
  • The statement must have been harmful (i.e., of a defamatory nature) — Even if a knowing false statement can be proved, the plaintiff still must show that an injury resulted, such as reputational damage or emotional distress. This includes showing that the plaintiff’s job prospects were significantly hampered as a result of the defamation.
  • Certain statements are defamatory per se — When false statements are made that an employee committed a crime, engaged in lewd or promiscuous activity or carried on other conduct that would be considered a public disgrace, defamation is presumed to have occurred. The employee may recover punitive damages even without showing actual harm.
  • Opinions are not statements of fact and thus cannot be proven false —An opinion by its very nature is neither true nor false but only an indication of the speaker’s frame of mind. However, the line between opinion and statement is not always clear. Even expressions couched in terms like “I feel,” “I think” or “In my opinion” can be defamatory if they convey false information.

Many companies have adopted best practices that prohibit giving out any data about employees, other than to confirm their job titles and dates of employment. However, offhand comments on the side can be defamatory. What’s more, these communications are usually not protected by the qualified privilege.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

Update on Ohio unemployment benefits during COVID-19 crisis

Author By Rebecca L. SimpsonPosted on

According to Lieutenant Governor John Husted, Ohio is working to process a massive increase in applications for Ohio unemployment benefits.  More people have applied for Ohio unemployment benefits over the last month than had applied for such benefits in the last two years.

Expanded unemployment benefits

Additionally, the CARES Act expanded unemployment benefits to cover self-employed and independent contractors and promised an additional $600 per week on top of what the state pays.  This has all resulted in slow processing times and numerous questions.

Answers to FAQs

The State is working to answer those questions and decrease processing times. Here are some updates:

  • Claim number: If you are filing a claim due to COVID 19, use the mass layoff number 2000108 on applications.
  • Self-employed and independent contractors: The State will start taking your information but anticipates it will not be able to process or pay benefits until May 15 of this year.  Once processed and approved, however, benefits will be retroactive.
  • Additional $600 per week: These additional payments should be starting now.
  • Efforts to alleviate slow processing time: Ohio Department of Job and Family services is adding 337 new employees, text-to-speech capabilities, and adding a virtual call center.
  • Funding challenges: According to Husted, without federal assistance Ohio’s unemployment system is on track to run out of funds in June, but, he says, that doesn’t mean Ohioans will lose their benefits.  State legislators are working to resolve this issue.
  • Where to apply:

Conclusion

If you have questions on this or other relief available for small businesses, self-employed, and independent contractors during the COVID 19 crisis, please contact Rebecca L. Simpson at 513.797.2856.

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