News and Analysis
The Hidden Dangers in Severance and Employment Agreements
May 11, 2012When contemplating whether to terminate an employee, employers should review severance and employment agreements that provide for payment of severance benefits. OMA Connections Partner, Bricker & Eckler LLP, reveals the hidden dangers that may be lurking.
EEOC Determines that Discrimination Laws Protect Transgender Employees
May 07, 2012On April 23, the EEOC issued an opinion determining “that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based…on sex,’ and such discrimination therefore violates Title VII.” In this case, a woman claimed she was denied a contractor job with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) after the agency learned she underwent a procedure to change her gender from man to woman. The woman originally applied for the position as a man and was informed she was virtually guaranteed the job. After the ATF learned of her procedure, it informed her that funding for her position had been cut. She later learned the ATF hired someone else for the job. From OMA Connections Partner, Credit to Roetzel & Andress.
New EEOC Guidance on Employers' Use of Criminal Records
May 04, 2012The EEOC recently published guidance on the use of arrest and conviction records in employment decisions under Title VII. Read this Bricker and Eckler Human Resources Bulletin to learn about the EEOC's restrictive view on the use of criminal records, so you can make process changes to comply with the EEOC guidance.
NAM Aims for Pension Funding Stabilization
May 04, 2012For several months, the National Association of Manufacturers (NAM) and a number of companies and business trade associations have worked in support of an industry proposal to provide pension funding stabilization through a “smoothing” of interest rates and in opposition to efforts to increase premiums to the Pension Benefit Guaranty Corporation (PBGC).
NAM has now established the Pension Coalition and is soliciting names of companies and associations that support these efforts for a coalition letter. The coalition aims to have Congress understand that without a change in policy to adjust for historically low interest rates, companies will be limited in their ability to invest and expand and continue to compete in the global marketplace.
To sign on to the letter, click here.
Columbus State Offers Logistics Training Program for Central Ohio Employers
May 04, 2012Columbus State Community College has developed the LogisticsART (Attracting Retaining Talent) program to train and prepare entry- to mid-level positions in warehouse, distribution and related logistics positions for employers in Delaware, Franklin, Fairfield, Madison, Morrow, Licking, Pickaway and Union counties.
The LogisticsART program delivers coursework which is recognized nationally and locally by industry experts. Participating employers receive immediate access to a pool of candidates whose skills are tailored to industry. Participants receive three weeks of training in logistics industry basics and modern technology including warehouse management system, RF scanning and forklifts.
There is no cost to businesses or participants. The LogisticsART program is funded through a $4.6 million dollar Department of Labor grant awarded to Columbus State Community College.
Kenworth Presents Testimony for Shared Work Unemployment Comp
April 27, 2012On behalf of the OMA, Scott Blue, Plant Manager at the Kenworth Truck Assembly Plant in Chillicothe, testified in writing this week before the House Commerce, Labor and Technology Committee on HB 484. The bill would modify unemployment compensation laws to provide employers greater flexibility when faced with difficult staffing decisions. The legislation enacts a new "short-time unemployment compensation" program.
Blue said: “This concept, also known as shared work compensation, offers an alternative to employers facing a reduction in work force. Instead of laying off employees, the employer reduces the hours of work each week among a specific group of employees.”
Noting current temporary federal law which the bill seeks to take advantage of, Blue stated: “Through the middle of 2015, shared work benefits would be funded by the federal government. In other words, over the next three years, this program would benefit both Ohio employers and employees without significant downside for either group. And because employer participation in a shared work plan is voluntary, when the federal funding ends, employers can simply choose not to participate and avoid the potentially harmful effect on their unemployment tax rate.”
"Ambush Election" Rule Stands after Senate Action Fails
April 27, 2012The National Association of Manufacturers (NAM) reported that the U.S. Senate voted 45-54 along party lines this week to reject Senator Mike Enzi’s (R – WY) Resolution of Disapproval on the National Labor Relations Board’s so-called ”ambush election” rule. The rules streamlining the union election process passed late last year and take effect on April 30. Had the Resolution of Disapproval passed, the new rules would have been blocked from implementation.
According to NAM, under procedures established under current law, the median number of days it takes to hold a union representation election is 38. The new regulation gives employers as few as 20 days during which to inform employees about any pending election. Additionally, employers forgo their rights to have certain pre-election disputes adjudicated until after an election has taken place.
In addition to this vote, the NAM, as part of the Coalition for a Democratic Workplace, is awaiting the federal court’s decision in a motion for injunction on the rule taking effect on April 30.
NAM Files Amicus Brief Opposing “Micro” Bargaining Units
April 27, 2012This week the National Association of Manufacturers (NAM) was among parties filing an amicus brief with the U.S. Court of Appeals for the Sixth Circuit urging the Court to overturn a new National Labor Relations Board (NLRB) rule that makes it much easier to create “exceedingly small collective bargaining units in a workplace.”
The rule, announced by the NLRB in the Specialty Healthcare case, allows a group of employees to select the bargaining unit they want, as long as the unit is defined as workers who share a “community of interest” (e.g. same job description). The decision overturns decades of well-established labor law by permitting the formation of these small bargaining units which could halt production in any one plant or business if one of these groups decided to strike. We’ll follow NAM’s reporting on the progress of the appeal in the federal court.
Circuit Courts Differ on NLRB Posting Rule: U.S. Court of Appeals Stays April 30 Requirement
April 20, 2012On Tuesday of this week, the U.S. Court of Appeals granted a motion of injunction to delay the effective date of the National Labor Relations Board (NLRB) posting notice requirement. The posting notice, which enumerates employees’ rights to unionize, was to be posted by virtually all employers effective April 30; but the Court of Appeals has stayed the rule for an undetermined amount of time in order to adjudicate the matter.
As a result, employers are not required to post the NLRB poster on or before April 30.
Earlier in the week, National Association of Manufacturers (NAM) vice president of human resource policy, Joe Trauger, reported that the Circuit Court in South Carolina had issued a ruling in a second lawsuit regarding the National Labor Relations Board (NLRB) posting notice rule. The Court ruled the NLRB did not have the authority to require employers to post a notice in the workplace about employee rights to unionize. This suit was brought by the U.S. Chamber of Commerce and the state chamber.
NAM filed the first lawsuit against the posting notice regulation in D.C. Circuit Court presenting the same arguments about the NLRB’s lack of authority to enjoin employers to post the notice; the judge in that case ruled the NLRB can require employers to post the notice.
The South Carolina decision split the Circuits and the U.S. Court of Appeals has granted injunctive relief. NAM-led legal proceedings have resulted in two prior implementation delays.
OMA Connections Partner, Jackson Lewis, offered this analysis of the South Carolina decision.
NLRB’s “Quickie Election” Rule Scheduled to Take Effect on April 30
April 13, 2012OMA Connections Partner, Jackson Lewis LLP, reports that the National Labor Relations Board (NLRB) final rule amending its union election process is scheduled to take effect on April 30, 2012.
According to Jim Stone, managing partner of the Cleveland office of Jackson Lewis, The “quickie election” rule will significantly change the process for contesting petitions for union elections and limit an employer's opportunities to challenge the process before an election is held. It also will limit an employer’s opportunity to communicate with its employees over issues of union representation before a vote is taken.”
The final rule eliminates pre-election rights of employees and employers in order to shorten the time before a representation election takes place. According to Stone, “By eliminating the possibility of appealing issues pre-election, the time between the filing of an NLRB election petition and an election will be reduced significantly. Our best current estimate is that the time will be reduced so that there may now be approximately 28-35 days between the filing of the election petition and the election.”
Jackson Lewis posted an analysis of the major rule provisions when it became final in late 2011.
NLRB Mandates New Poster to be Displayed by April 30
April 13, 2012As of April 30, 2012, most private sector employers will be required to post a notice advising employees of their rights under the National Labor Relations Act.
There were several unsuccessful legal attempts to reverse this rule and appeals are pending, but nothing that would disturb or delay the notice posting requirement.
OMA Connections Partner, Jackson Lewis, a national employment law firm with Ohio offices, is advising that employers need to post the required National Labor Relations Board (NLRB) “Notice of Employee Rights” poster by April 30, 2012.
The U.S. District Court for the District of Columbia, which had been considering legal challenges to the poster, ruled in March that the NLRB was within its authority to require employers to post the poster. The court did rule that some of the harsher penalties proposed by the NLRB for failure to post were overbroad; however, the basic requirement to post was upheld.
Jim Stone, managing partner of the Jackson Lewis Cleveland office said, ”Some employers use “all in one” posters, which combine all required postings, including the new NLRB poster, into one large document and this is specifically permitted by the NLRB and will “tend to moderate” any dramatic effect from putting up the poster.”
Pay Employees for Training Time, with Few Exceptions
April 13, 2012On the heels of a Department of Labor action against a restaurant chain, OMA Connections Partner, Roetzel and Andress LLP, reminds employers when training time must be compensated and the specific cases when training time does not need to be compensated.
Compensation of training time generates significant litigation under the Fair Labor Standards Act. Most training time is work time. Employers must compensate employees for training that occurs during an employee’s regular shift, as well as training that is required by the employer.
Training time does not need to be counted as work time if: 1) it occurs outside of an employee’s normal work schedule; 2) the training is entirely voluntary (there must be no pressure from the employer and no adverse consequences for failing to attend); 3) the training is not directly related to the employee’s current job (typically it is designed to qualify the employee for advancement); and 4) the employee performs no other work during the training.
“Short-Time Unemployment Comp” Introduced
April 06, 2012State Representative Mike Duffey (R – Worthington) recently introduced legislation to modify unemployment compensation laws to provide employers greater flexibility when faced with difficult staffing decisions. HB 484 is intended to enact a new "short-time unemployment compensation" program.
“The apparent goals of the proposed program would be for employers to keep more people employed by reducing their employees' hours in lieu of layoffs, and to provide employees increased opportunity to receive unemployment benefits. The new program would allow more employees to qualify for benefits, because employees could receive benefits even if their hours are reduced by only 10%,” said OMA counsel, Cavett Kreps, of Bricker & Eckler LLP.
OMA will work to support passage of the bi-partisan legislation. Members interested in supporting or testifying should contact the OMA.
Pink Slip Protection: Former Employees Have Employment Rights Too
March 23, 2012Last week the U.S. 4th Circuit ruled that a former employee may enjoy legal protection under Title VII of the Civil Rights Act. The court ruled in favor of a former Virginia county employee who alleged she was offered a less favorable severance package because she is a woman. Gerner v. Cnty. of Chesterfield, Va., 765 F.Supp.2d 770. From OMA Connections Partner, Roetzel & Andress
Couple of Workforce Development Initiatives Outlined
March 16, 2012Governor Kasich used the “mid-biennium review” to propose a few workforce development initiatives. None appear to focus directly on manufacturing workforce.
Proposed is an online resource to match training with demand for jobs in the oil and gas industries growing with the shale formation drilling. Two programs would be created to help people find jobs: one for the developmentally disabled and another for veterans. And, a “Learn to Earn” program would be established to allow those currently collecting unemployment to train with an employer while still receiving unemployment.
The review also referenced the previously announced revamping of the Executive Workforce Board which aims to “better align programs, and increase access for both employers and job seekers to obtain the training they need.”
March Madness Pools Happen: How to Keep it Legally In Bounds
March 16, 2012OMA Connections Partner, Roetzel & Andress, has a few tips for keeping workplace “March Madness” pools above board.
NLRB’s Notice Posting Upheld by D.C. Federal Judge
March 09, 2012On March 2, Judge Amy Berman Jackson ruled against the National Association of Manufacturers (NAM) in its lawsuit against the National Labor Relations Board (NLRB) regarding its employer posting requirement. The posting describes employees’ rights under the National Labor Relations Act and must be posted by virtually all employers by April 30 of this year. NAM’s suit challenged the NLRB’s jurisdiction to require the posting.
Judge Jackson ruled that the NLRB does have the authority to require employers to post the notice it finalized in August.
The poster rule not only requires an employer to put up the poster, but it also establishes that if the poster isn't put up that would be, in and of itself, an unfair labor practice. Additionally, under the current law there is a six month statute of limitations to bring an unfair labor charge before the Board. The rule, as issued, would allow this limitation to be waived in certain circumstances.
The judge, in her decision, said that although the Board can require the poster, it cannot create the unfair labor practice and cannot waive the statute of limitations.
NAM’s Joe Trauger, Vice President, Human Resources Policy, said, “Most concerning about this ruling is that it appears that if an employer does not post and an unfair labor practice complaint is subsequently lodged against them, the NLRB can use failure to post as evidence of anti-union animus.”
This week. NAM, joined by the Coalition for a Democratic Workplace, the National Federation of Independent Business and the National Right to Work, decided to appeal the decision and also filed a motion with Judge Jackson requesting the rule not take effect until the appeal is decided. NAM continues to believe the facts and the law are on employers’ side in the case.
Medical Marijuana Ballot Issues: A Concern for Manufacturers
March 09, 2012Two pending ballot issues propose amendments to the Ohio Constitution that would make it legal for certain individuals to grow, process, distribute, purchase, sell and use marijuana and related paraphernalia in Ohio for certain medical reasons. Both the “Ohio Alternative Treatment Amendment” and the “Ohio Medical Cannabis Amendment” have been approved by the Ohio Attorney General and the Ballot Board, meaning that both petitions are now eligible to be circulated throughout Ohio for signatures.
Writes OMA counsel, Bricker & Eckler LLC, in a memorandum developed for OMA members: “(B)oth Amendments would restrict, either expressly or indirectly, the ability of Ohio manufacturers to test and/or discipline their employees for using or being under the influence of marijuana in the workplace. Additionally, the Amendments would raise a variety of legal and practical uncertainties for Ohio manufacturers regarding testing and discipline for marijuana use. Although some of those questions may be answered through subsequent administrative regulations authorized under both Amendments, inevitably, there will be questions that will only be answered following expensive and time-consuming litigation.”
NAM Acts Against Various NLRB Rulings
February 24, 2012The National Association of Manufacturers (NAM), which brought suit against the National Labor Relations Board (NLRB) over its employer posting mandate, reports that it is waiting for a decision by the judge in the case. The mandate requires virtually all employers hang a poster that spells out employees’ rights under the National Labor Relations Act. Unless reversed or stayed, the posting rule is currently scheduled to go into effect April 30.
Separately, the Coalition for a Democratic Workplace, of which NAM is a leading member, filed a legal challenge in federal court to the NRLB's “ambush election” rule, which was finalized in December 2011 and goes into effect April 30. Currently the parties are exchanging reply briefs.
And late last week, the House and the Senate introduced Resolutions of Disapproval to the NLRB’s "ambush election" rule. NAM sent a support letter to the lead sponsors of the resolutions, Senator Enzi (R-WY), Ranking Member of the Senate Health, Education, Labor and Pensions Committee, and Congressman Phil Gingrey (R-GA).
According to NAM, the rule does not explicitly shorten the time frame for a representation election to take place, but it does strip employers of their rights to have their concerns, such as who will be eligible to vote in the election, heard through pre-election hearings. This change could effectively shorten the time frame for elections from an average of 38 days to 20 days. Congressional vote on these resolutions is likely to take place sometime in March.
Federal Court Rules Obesity is a Disability under the ADA
February 16, 2012A federal district court recently held that severe obesity is a disability under the Americans with Disabilities Act (ADA). In EEOC v. Resources for Human Development, Inc., No. 10-3322 (E.D.La. Dec. 7, 2011), the employee weighed over 500 pounds at the time of her termination. The EEOC brought suit on the employee’s behalf, alleging that the employer violated the ADA by terminating her. From OMA Connections Partner, Roetzel & Andress.
NLRB on Employee Use of Social Media
January 27, 2012OMA Connections Partner, Roetzel & Andress reported that the National Labor Relations Board (NLRB) Acting General Counsel, Lafe Soloman, issued a new report this week on unfair labor practice cases involving employee use of social media and employers’ social media policies. Memorandum OM 12-31 summarizes 14 recent social media cases reviewed by the NLRB’s Division of Advice.
Per Roetzel’s Emily Wilcheck: The report reveals that the Acting General Counsel continues to follow the view that employees using social media to engage in protected concerted complaints about their employment are protected by the National Labor Relations Act, whereas social media use by employees to simply voice “individual gripes” does not constitute protected activity. The report also provides useful guidance for employers drafting social media policies on the type of language that the NLRB’s Division of Advice considers unlawful.
Do You Know What Your Employment Practices Liability Insurance Covers?
January 27, 2012You might be surprised to find out what your employment practices liability insurance (EPL) covers or, more importantly, what it does not cover. From OMA Connections Partner, Roetzel & Andress.
Are You Liable for Overtime Pay for Work You Didn’t Authorize?
January 26, 2012
OMA Connections Partner, GBQ Partners, reported on a Seventh Circuit Court of Appeals ruling in favor of an employer in a case where a former employee sought five years of overtime pay for working unauthorized overtime.
While federal wage and hour law, and most state laws, place the obligation on employers to pay non-exempt employees for all time they work, including unauthorized overtime, this case is significant in that it found in favor of the employer.
This case was unique in that the employer had no knowledge of the overtime worked; read GBQ’s tips for setting and enforcing overtime policy.
NAM Calls for Input to Employment Law Policy Position
January 20, 2012Joe Trauger, Vice President, Human Resources Policy, National Association of Manufacturers (NAM,) is calling for manufacturer input to NAM’s employee relations policy positions.
The draft policy with redlined changed proposed by policy staff can be viewed here. Trauger said, “… our main goal was to tighten up the language in order to better focus on those issues of concern to manufacturers.” The employee relations policy is scheduled for NAM board ratification in March.
Comments can be sent to Trauger by January 30.
Ohio Workforce Development: Lots of Programs, Spending Can’t Be Calculated
January 20, 2012A workforce development study committee in the Ohio House this week released recommendations arising from a series of 2011 hearings.
Chairman Timothy Derickson wrote: “The current workforce system does not adequately address the structural unemployment that we are facing today. Ohio has a significant population of workers with skills but not the right skills for available jobs. While supports need to continue for the chronically unemployed and displaced workers, greater emphasis needs to be placed on incumbent worker and the under-employed to insure workers have the skills needed for which businesses are hiring. The workforce system in Ohio must be responsive to industry demand and bridge short term skill gaps among workers to align job seekers with available jobs.”
A Legislative Service Commission (LSC) study conducted for the committee found 65 workforce programs across 20 different state agencies. LSC stated: “Total funding and expenditures for every specific workforce development program listed in this memorandum cannot be calculated. This is because, in some cases, an agency's workforce development programs are a component of a much larger program and a delineation of the particular workforce development expenditures is not available.”
