News and Analysis
From OMA Connections Partner, Dinsmore: “If your company has not reviewed its compensation systems to ensure pay equity for female employees, now is the time to do so. In the fall of 2017, the Equal Employment Opportunity Commission (EEOC) released its 2018-2021 Strategic Plan announcing pay equity would be one of its six major priorities. Since then, four high-profile settlements have demonstrated the EEOC will be vigorously enforcing the Equal Pay Act and Title VII to ensure wage equality.”
Read about these cases here. 3/2/2018
This week the House held its first hearing on House Bill 497, which, along with its Senate companion Senate Bill 251, prohibit the nonconsensual dissemination of private sexual images. The two bills are designed to close a loophole in Ohio law that allows individuals to knowingly disseminate private images, without consent of the victim, with a purpose to harm the person in the images.
In their joint testimony Reps. John Rogers (D-Mentor on the Lake) and Nathan Manning (R-North Ridgeville) outlined the provisions of the bill including criminal penalties and employment protections. Employment protections include prohibiting an employer from firing, or failing to hire, an individual because of their victim status; requiring an employer to make “reasonable accommodations” to the victim; requiring an employer to give a victim unpaid leave; and, creating a civil action against an employer for failing to follow the bill’s employer requirements.
Read about the bill and its employer provisions here. 3/1/2018
OMA Connections Partner, Jackson Lewis, offers this 16-page 2017-18 Desk Guide to Ohio Employment Statutes and Regulations.
This guide, reviewed by Jackson Lewis counsel in the fall of 2017, is a great reference for all human resources administrators and managers. It summarizes the most frequently referenced employment laws. 2/26/2018
From OMA Connections Partner, Frantz Ward: “On Monday, the NLRB unanimously vacated its December 2017 Hy-Brand Industrial Contractors decision, marking yet another abrupt reversal in the method for determining whether two employers can be held jointly liable for violations of labor and employment laws committed by either employer. In doing so, the Board effectively reinstated its 2015 Browning-Ferris Industries decision, meaning that two businesses are joint employers when one has “indirect” or “reserved’ control over the other’s workers.”
And: “Monday’s order puts greater pressure on Congress to pass the Save Local Business Act, which would amend the National Labor Relations Act and the Fair Labor Standards Act to establish a “direct control” standard.”
More here. 3/1/2018
On January 12, 2018, the OMA joined the National Association of Manufacturers (NAM) and other business groups in filing an amici curiae brief in the Sixth Circuit Court of Appeals in Zino v. Whirlpool, seeking reversal of the district court’s decision. The district court found a promise to provide unaltered health benefits to retirees for life even though there was no contractual language to that effect. In reaching its conclusion, the district court followed two recent Sixth Circuit decisions that create uncertainty and unpredictability for employers.
In 2015, in M&G Polymers USA LLC v Tackett, the U.S. Supreme Court attempted to bring much-needed clarity and uniformity to the interpretation of retiree health-benefit plans by unanimously rejecting the Sixth Circuit’s Yard-Man rule. But, just two years later, the Sixth Circuit issued decisions in UAW v. Kelsey-Hayes Co. and Reese v. CNH America LLC, straying from the Supreme Court’s holding in Tackett. As a result, the Sixth Circuit is now an outlier in this area of law, which may lead to more litigation in Ohio as a result of forum shopping.
Amici argued that “[e]mployers and employees cannot meaningfully bargain or reliably plan for the future if clear terms in collective bargaining agreements and benefit plans are not enforced” and that massive unexpected costs and unpredictable benefits packages that will result from rulings like the district court’s will hurt employers and employees alike.
Briefing is still ongoing. 2/8/2018
Terry Szmagala, Senior Vice President of Public and Community Affairs and Corporate Communications, as well as the Executive Sponsor of Eaton’s LGBT Employee Resource Group, Eaton PRIDE, testified this week in support of HB 160. HB 160 would expand many of the Ohio Civil Rights Commission (OCRC) Law’s existing prohibitions against various unlawful discriminatory practices to apply to discriminatory practices on the basis of “sexual orientation,” or “gender identity or expression.”
Szmagala said: “One of Eaton’s aspirational goals is to be a model of inclusion in our industry. We have policies and practices in place to cast the widest possible net in order to attract the best and brightest talent from across the country––policies and practices that go well beyond the protections against discrimination that the State of Ohio currently has.
“Our business rationale for valuing diversity and inclusion is simple. We need inclusion and diversity to achieve our business objectives – diverse workforces are more effective workforces. Openness to diversity widens our access to the best talent, and inclusion allows us to engage that talent fully.
“It is equally important that Ohio be viewed as committed to inclusion and diversity so that Ohio businesses such as ours are able to attract the best talent to the state … Ohio needs to be viewed as a place where inclusion and diversity are valued. Eaton’s success is tied to Ohio’s success and we view this legislation as positioning Ohio as a state of choice for the new economy.” 2/1/2018
OMA Connections Partner, Working Partners®, posted: “Employers across the country are feeling the effects of an unprecedented four-year increase in the number of positive workplace drug tests. Not being able to find workers and the threat of losing seasoned employees due to substance use has forced many employers to consider or reevaluate their willingness to offer a second chance to employees who test positive.”
Read more from Working Partners® about second chance programs. 1/24/2018
From OMA Connections Partner, Clark Schaefer Hackett: “Employee engagement is a hot topic for organizations big and small. Regardless of size, a highly engaged workforce is a company’s greatest asset and can be a determining factor in how successful the company is. But the only reliable way to measure engagement is through an employee survey. Whether your organization is just starting to quantify engagement or has tracked it for years, it doesn’t hurt to take a look at your strategy and make sure you’re not making any of these top five employee engagement survey mistakes.” 1/16/2018
OMA Connections Partner, Dinsmore, reminds affected employers: “April 2, 2018 is the first day on which U.S. Citizenship and Immigration Services (USCIS) will accept H-1B specialty worker petitions for the next fiscal year beginning October 1, 2018. …
“Due to the overwhelming demand for the annual allotment of 85,000 new H-1B slots, employers who wish to file new H-1B petitions for current or future employees should do so on April 2nd. The number of H-1B approvals requested by employers has reached the annual H-1B cap every year for more than 10 years. Last year, USCIS received 199,000 petitions within the first week then conducted a random lottery to determine which petitions would garner the 85,000 slots.”
Read the full post here. 1/9/2018
Here’s a post from OMA Connections Partner, Bob Robenalt, of Fisher Phillips: “… it’s time for manufacturers to begin planning for the next wave of labor and employment law trends forecasted to emerge over the coming year. Not surprisingly, we will continue to see deregulation at the federal level and an uptick in state-level protections. Looking ahead to 2018, manufacturers should have these 3 game-changing developments on their radar.”
Read about them here. 12/19/2017
Bob Robenalt is a partner at the Columbus office of Fisher Phillips, a national management-side labor and employment law firm.