On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law.  The two main provisions of this law are the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (EPSLA).

EFMLEA goes into effect April 1, 2020 and remains in effect until December 31, 2020.  The law will apply to all employers with more than 50 but less than 500 employees.  Unlike the FMLA which requires that an employee be employed with the employer for 12 months prior to the request for leave, under EFMLEA, employees are eligible after only 30 days of employment.  However, EFMLEA applies only when an employee is unable to work or telework due to the need to care for a son or daughter under the age of 18 or when the child’s school or daycare is closed due to coronavirus.  Unfortunately, the Act does not define the terms “unable to work or telework.”

Under EFMLEA, the first 10 days are unpaid.  However, an employee can use the leave under the EPLSA to cover the first 10 days.  EFMLEA provides a total of 12 weeks of leave.  After the first 10 days, the employee will be paid 2/3 of his or her regular salary or hourly rate, subject to certain limitations.  The employee is capped at a maximum of $200 per day or $10,000 total.  Like the FMLA, an employee is required to be restored to his or her position or a substantially similar position at the end of the leave.  However, an employer with fewer than 25 employees may not be required to restore an employee to his or her position if the position no longer exists.  One very important point to note is that under EFMLEA, an employee can use existing paid leave, but the employer cannot require this.   This represents a major difference between the FMLA and EFMLEA.

Like EFMLEA , the EPSLA also goes into effect April 1, 2020 and remains in effect until December 31, 2020.  EPSLA will also apply to all employers with more than 50 but less than 500 employees.  However, under EPSLA, all employees are immediately eligible.

An employee will be eligible for EPSLA if any of the following apply:

1. The employee is subject to a federal, state, or local quarantine or isolation order

• 1. The employee has been advised by a health care provider to self-quarantine
  2. The employee is experiencing symptoms of coronavirus and is seeking medical diagnosis
  3. The employee is caring for a person who is subject to a federal, state, or local quarantine or isolation order or who has been advised by a health care provider to self-quarantine
  4. The employee is caring for a son or daughter of the employee whose school or daycare is closed
  5. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, the Secretary of the Treasury, and/or Secretary of Labor

However, determining the amount of pay under the EPSLA is a bit more complex.  Generally speaking, full-time employees are entitled to 80 hours of paid leave, while part-time employees are entitled to be paid for the number of hours per day they worked on average over the prior two-week period.  If an employee is off work for reasons 1-3 listed above, the employee will be subject to a limit of $511 per day and $5,110 total during the leave period.  If an employee is off work for reasons 4-6 above, the employee is subject to a $200 per day limit and $2000 total during the leave period.

While these new laws appear overwhelming and potentially burdensome to smaller employers, there are tax credits available which in some cases will completely offset the cost of these benefits.

Dworken & Bernstein is here to assist you during this complicated and uncertain time.  If you have any questions related to the Families First Coronavirus Act please call us at (440) 352-3391.

There are many reasons why insurance companies deny a workers’ compensation claim. If your claim has been denied, it is critical that you retain the assistance of an experienced workers’ compensation attorney. Statistics suggest that there was an increase in the number of denied workers’ comp claims between 2013 to 2017. If you have been injured while on the job, we want to help you anticipate the various challenges that lie ahead. The following are some of the most common reasons why workers’ compensation claims are denied.

No One Saw Your Accident Occur

It more difficult to obtain compensation if you were injured in a workplace accident that no one else witnessed. If you are injured on the job and no one saw your accident, there is little you can do to improve this aspect of your case. Instead, you should make sure that you promptly report your injuries to your employer. You should similarly make sure that you provide everyone you speak to the same narrative about how your accident occurred.

You Did Not Promptly Report Your Injuries

If you fail to promptly report your injuries, you will likely have a much more difficult time obtaining workers’ compensation benefits. Insurance companies will assume that if you did not immediately report the accident, you were not actually hurt. Ohio law requires workers to report incidents within one year of the accident, but you should not wait. If you are injured while on the job, you should report the accident immediately.

Discrepancies Between Your Accident Report and Medical Records

Insurance companies often deny workers’ compensation claims if a worker provides inconsistent statements about how the accident occurred. If you provide your employer with one story about how the accident occurred but tell your physician another version, you will have a harder time pursuing a claim. Remember to be consistent when speaking to coworkers, employers, and medical providers about how the workplace accident happened.

You Filed a Claim After Termination or Being Laid Off

Waiting until you are laid off or fired to file a workers’ compensation claim greatly weakens the strength of your case. This is because companies often view claims filed as merely retaliatory. This is another reason why you should never wait to file a workers’ compensation claim. If you are fired before filing, you will have a more difficult time obtaining the compensation that you deserve, even if you were seriously injured.

Speak with an Experienced Cleveland Workers’ Compensation Lawyer

Even if you were injured on the job, there are still numerous obstacles that can arise in the process of obtaining compensation. Contact Dworken & Bernstein Co., L.P.A. today to receive a free case evaluation.

As we prepare to celebrate our nation’s Independence Day, I thought it would be appropriate to discuss USERRA – the employment protections afforded to service members. 

An Overview of USERRA

The Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA) protects civilian job rights and prohibits discrimination in employment based on an individual’s prior service in the uniformed services, current service in the uniformed services, or intent to join the uniformed services. 

The term “uniformed services” includes the Armed Forces, Reserve, and National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency. 

Unlike the FMLA which only applies to certain employers and employees, USERRA applies to all employers in both the public and private sectors, regardless of the size of the employer.  USERRA protections are also afforded to both full and part-time employees.

Criteria to Qualify Under USERRA

Under USERRA, a service member is entitled to be reemployed in his or her civilian job following a return from a period of service in the uniformed services provided the following criteria are met:

• The person must have been absent from a civilian job on account of service in the uniformed services;
• The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
• The cumulative period of military service with that employer must not have exceeded five years;
• The person must not have been released from service under dishonorable or other punitive conditions; and
• The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment unless timely reporting back or application was impossible or unreasonable.

Positions Entitled to Under USERRA

The type of position the individual is entitled to be reinstated in depends on how long the individual was absent. 

Service members whose leave is ninety (90) days or less are entitled to be placed in the same job he or she would have held had the leave never occurred, provided the individual is or can become, through reasonable efforts, qualified for the position. 

However, if the leave exceeds ninety (90) days, the employer has the option of returning the employee to the same position or placing the employee in a position of like seniority, status, and pay, again  provided the individual is or can become qualified for the position.

To assist an individual in becoming qualified for a position, an employer may be required to provide training. Returning service members also have protection against termination which varies depending upon the length of service.

Employers are also required to accommodate individuals who suffer service-related disabilities. If a reasonable accommodation will not allow the disabled individual to be restored to his or her position, the employer must reemploy the disabled individual in a position that is equivalent in terms of seniority, status, and pay.   

Exceptions to USERRA

As is the case with so many laws, there are always exceptions.

Changed Circumstances

An employer may be excused from reemploying a service member if the employer can demonstrate that changed circumstances, such as a reduction in force, would make reemployment impossible or unreasonable. 

Undue Hardship

Likewise, if reemploying a service member or accommodating an individual with service-related disabilities would pose an undue hardship, an employer may also be excused from this obligation.

Keep in mind however that the employer will bear the burden of demonstrating changed circumstances and/or undue hardship.

Provisions Against Discrimination

In addition to reemployment, USERRA also contains provisions which prohibit discrimination.  Employers are prohibited from denying service members initial employment, retention in employment, promotion or any benefit of employment.  Likewise, an employer may not retaliate against an individual for filing a USERRA claim.  

Continuation of Health Insurance

USERRA also contains provisions which provide for the continuation of health insurance. An individual who leaves his or her job to perform military service has the right to continue existing health insurance coverage both for the individual and eligible dependents for up to twenty-four (24) months while in the military. 

Even individuals who opt not to continue health insurance coverage have the right to have their coverage reinstated upon reemployment. This typically means the individual will not have to go through any waiting periods or exclusions.

If You Believe Your Rights Were Violated

An individual who believes his or her rights were violated may choose to file a complaint with the U.S. Department of Labor, Veterans Employment and Training Service (VETS).

VETS has the authority to investigate and resolve USERRA complaints. However, there is no requirement that an individual file a complaint with VETS.

Rather, one may immediately proceed with filing a civil action against an employer for USERRA violations. If successful, an individual may be awarded reinstatement, lost wages and benefits, liquidated damages and attorneys’ fees. 

Not only can the loss of a job be devastating for a returning service member, defending a USERRA claim can be costly for an employer who fails to comply with this law.

Employers need to have a thorough understanding of USERRA and its provisions and implement policies to ensure compliance.

Speak to an Expert Employment Attorney

If you are a current or former service member and have questions about your legal rights under USERRA, speak to an expert employment attorney directly.

Call the law firm of Dworken & Bernstein today.  In Lake County, call 440.946.7656 In Cuyahoga County, call 216.861.4211

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

What The Law Says About Age Discrimination

Two bodies of law, federal and state, provide the contours of age discrimination employment law in Ohio. These laws, which overlap somewhat, apply only to discrimination against workers age 40 or older. In other words, generally speaking in Ohio, there is no legal prohibition on “age discrimination” against a worker under 40. These laws also generally do not cover age discrimination in the hiring and firing of law enforcement and public safety officers, or in how unions and other labor organizations enforce seniority-based work rules.

The principal federal law on age discrimination is the Age Discrimination in Employment Act of 1967 (ADEA), which makes it unlawful for all employers with more than 20 employees:

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.

The principal Ohio state law on age discrimination in employment is the Ohio civil rights statute. In a sense, this statute is broader in its protections than the ADEA because it applies to all employers in Ohio with more than 4 employees. Like the ADEA, the Ohio statute also makes it illegal for “any employer, because of the … age … of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.”

Ohio courts generally analyze claims made under both statutes according to the same basic standards. However, there are procedural differences in how and when these laws apply that make consulting an experienced employment law attorney very important whenever a claim of age discrimination arises.

Practical Applications of Age Discrimination Law

If the language of the statutes above seems quite broad, it is because federal and Ohio lawmakers consider age discrimination to be an unjust burden on older workers. Whether a specific action constitutes age discrimination, however, can be a complicated determination.

Here are some examples of when the laws do and do not apply:

• If an employer rejects all job applicants over age 50 on the basis of their age alone, then that likely constitutes illegal age discrimination.
• If an employer reassigns an older worker to a less physically strenuous task because of the worker’s declining physical health, then that likely does not constitute age discrimination even if the worker’s declining condition is age-related.
• A workplace policy of inviting only younger employees to work-related events, effectively excluding those over 40, likely constitutes illegal age discrimination.
• A workplace that imposes a mandatory retirement age because of federal or state regulations does not engage in age discrimination.

These are just a few examples. The circumstances of a suspected incident of age discrimination tend to be highly fact-specific. The best way to evaluate whether an action does, or does not, constitute illegal age discrimination in Ohio is to consult with an experienced Ohio employment lawyer.

Skilled, Sophisticated Ohio Employment Attorneys

At Dworken & Bernstein, we represent employers and employees in a wide range of employment-related matters, including the evaluation and litigation of age discrimination claims. If you have questions about how the age discrimination laws apply to you, then contact our team today to schedule a free consultation.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

By Richard N. Selby II
Partner

A significant number of my employment-related calls from prospective clients begin the same way: “I have been discharged, what can I do about it?”  Unfortunately, the answer is rarely as simple and straight forward as the prospective client would like to hear.

Employee at Will

Generally, in Ohio, you start from the proposition that you are an employee at will.  What this means, is that your employer can terminate you at any time, for any reason except under circumstances where the termination would otherwise violate federal or state law.  

A termination which is unjust, unfair or fails to comply with pre-established progressive disciplinary provisions in an employee handbook is not, in and of themselves, unlawful. The fact that an employee can prove that he did not do what the employer is charging him with, or that the employer’s expectations are unrealistic, do not give that employee a wrongful discharge claim.  

Rather, in addition to demonstrating those elements, the employee must show that the termination was somehow discriminatory or retaliatory.

Prohibited Forms of Discrimination

A number of federal statutes prohibit forms of discrimination.  For example, Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against a person because of their race, gender, religion, national origin or pregnancy.  The Age Discrimination in Employment Act prohibits age discrimination. The Americans With Disabilities Act prohibits discrimination against individuals with disabilities. Each of these federal statutes has its own procedural prerequisites and remedies.  

In addition to these federal statutes, the Ohio Civil Rights Act also makes all of this same conduct unlawful and has its own procedures and remedies.

Pursuing Wrongful Discharge Claims Under the Federal And State Statutes

The procedural avenues for pursuing claims under the federal statutes and the state statutes do differ in some regards.  Likewise, the remedies available under the different statutes also vary. As a result, it is often times in a person’s best interests to pursue both the federal and state claims.  

Filing a Charge of Discrimination

In pursuing a federal claim under any of the three statutes listed above, a wrongfully terminated employee is required to file a charge of discrimination with the Equal Employment Opportunity Commission or the Ohio Civil Rights Commission before filing a lawsuit.  This charge of discrimination must be filed within three hundred days of the date of termination. Under the state statute, however, the employee is not required to file a charge of discrimination before filing the lawsuit, and, with the exception of age discrimination claims, need only file a lawsuit in court pursuant to Ohio Revised Code §4112.99 within six years of the date of their discharge.  

Age discrimination claims, however, must be filed within 180 days of termination.  With respect to most forms of discrimination an employee is allowed to pursue both federal and state remedies simultaneously.  The exception is age discrimination, which provides that if you file a charge of discrimination before filing your state lawsuit, your state lawsuit will be barred.  Accordingly, if you want to pursue both state and federal claims, you need to first file a lawsuit pursuant to the state laws and then file a charge of discrimination pursuant to the federal laws.  

Recoverable Damages

Federal Claims

Generally, the federal claims allow a wrongfully terminated employee to recover economic damages for lost wages and benefits, emotional distress, damages, punitive damages, and attorneys’ fees.  

Under the federal age discrimination statute, however, an employee is not entitled to emotional distress or punitive damages but can recover liquidated damages.

The amounts which are recoverable for emotional distress in Title VII and Americans With Disabilities Act claims are limited to differing amounts depending on how large the company is which is being sued.  Liquidated damages in an age discrimination claim are limited to the amount of economic damages a plaintiff has suffered.

State of Ohio Claims

State law claims the wrongful discharge brought pursuant to Ohio Revised Code §4112.99 also have a full range of damages including economic damages, emotional distress damages, and punitive damages.  

Unlike the federal statutes, however, the claims brought pursuant to the state statutes have no caps associated with emotional distress and punitive damages. In addition, attorneys’ fees are not available to a prevailing plaintiff under the Ohio Civil Rights Act except as a portion of punitive damages.  

Because the standard of punitive damages is so much greater than simply prevailing on the claim, this is a significant variation from the federal statutes where any prevailing plaintiff is entitled to a recovery of attorneys’ fees regardless of what the punitive damages have been awarded.

What Constitutes Discrimination

In looking at whether an employee has been discriminated against, it is important to understand that it is not enough that the employee is treated differently from other employees.  Rather, you must show that the employee was treated differently because they fell within one of the protected classes, i.e., because of their race, gender, religion, age, national origin or disability.  Being treated differently because of the supervisor’s personal animosity towards a particular employee is not unlawful unless that animosity is the result of an employee falling in the protected class.

Non-retaliation Provisions

In addition to the discrimination claims described above, there are numerous statutes which make it unlawful to retaliate against an employee for engaging in protected conduct.  For example, all of the discrimination statutes above also have non-retaliation provisions which make it unlawful to retaliate against an employee for making claims of discrimination.  

These non-retaliation provisions also protect employees who seek to protect other employees by objecting to discriminations which that employee is being subjected or acting as a witness on behalf of an employee asserting a discrimination claim.  

It is also unlawful to retaliate against an employee, for example, for filing a workers’ compensation claim, for seeking leave under the Family and Medical Leave Act, for making complaints to OSHA, for engaging in protected union activities or by engaging in whistleblower activities.

There are many diverse federal and state statutes dealing with all of these types of retaliation which are too complex and detailed to go into in this article. The remedies, procedural requirements and timeline for pursuing claims differ under these different statutes. Accordingly, it is important that you contact a lawyer immediately to figure out what your rights may be.  

For example, in workers’ compensation retaliation cases, action must be taken within ninety days to put your employer on notice that you are going to file a potential retaliation claim.

Wrongful Discharge in Violation of Public Policy

In addition to all of the statutory procedures, Ohio also recognizes a claim for wrongful discharge in violation of public policy.  The Ohio Supreme Court has recognized that there are certain circumstances where the legislature may not have adopted specific statutory prohibitions against discharging employees under certain circumstances, but public policy dictates that terminating an employee, under those circumstances, would be unlawful.  For example, a number of courts have held that it is unlawful to terminate an employee for consulting with a lawyer. Claims for wrongful discharge in violation of public policy have a four-year statute of limitations. A prevailing plaintiff is entitled to recover economic damages, emotional distress damages, and punitive damages.

Altering the ‘Employment at Will’ Doctrine

It is possible for an employee to alter their status as an employee at will by entering into a contract with their employer.  In most instances, the mere fact that the company adopts a handbook or specific policies dealing with discharge do not create a contract, and the employer does not necessarily need to follow those employee policies in discharging an employee.  

Collective Bargaining Agreements

The most common form of employment contract altering the employment at will doctrine is a collective bargaining agreement entered into between a union and a company. In most instances, the collective bargaining agreement will place limitations on an employer that will require them to have just cause to terminate an employee.  In those circumstances, an employee does not necessarily need to prove discrimination or retaliation, but, rather, merely must demonstrate that they are not guilty of the offense they are being charged with or that that offense does not justify termination. However, under most collective bargaining agreements the employee’s exclusive remedy is going to be the grievance and arbitration procedure set forth in the agreement rather than a lawsuit in court.  

Employment Contracts

It is also possible for individual employees to enter into employment contracts, although, as a practical matter, very few companies do that. It is generally high ranking, well-compensated employees who have individual employment contracts. An employee generally has to have sufficient leverage with the company to persuade the company to provide them with an employment contract.  Some companies also offer their employees’ employment contracts that do not alter the employment at will status of the employee but do provide, for example, that any claims an employee has against the company will be arbitrated.

Consult with an Expert Employment Law Attorney Immediately

As you can see, the answer to the question “I’ve been terminated, what can I do?” is not an easy one. 

• First, you have to determine whether you have an employment contract or you are an employee at will.
• Second, you have to determine whether you are being discriminated or retaliated against for unlawful reasons.  
• Finally, you have to determine what the appropriate procedural remedies are and the time limits in which to bring your claims.

In short, you need to contact a lawyer as soon as possible to find out what remedies, if any, you have as a result of your termination.  

If you have been terminated from employment and believe that it was a wrongful discharge, it is in your best interest to speak with an experienced Ohio employment lawyer right away.

You can take the first step. In Lake County, call 440.946.7656. In Cuyahoga County, call 216.861.4211.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

By Kristen M. Kraus
Partner

According to a recent article in the New York Times, older employees, even those of retirement age, are staying in the workforce longer. Some are working longer out of necessity while others remain simply because of increased longevity. Whatever the cause for the trend, it is important to understand the laws that are in place to protect this older generation of workers.  

Federal Law: The Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) prohibits discrimination against employees who are age forty (40) or older.  This law provides no protection to workers under the age of forty (40). Under the ADEA, an employer may not discriminate in any aspect of employment including hiring, firing, pay, job assignments, promotion, layoff, training, fringe benefits or any other term or condition of employment.  Additionally, it is unlawful to harass an employee on the basis of his or her age. While an occasional comment about a person’s age will not rise to the level of harassment, severe and pervasive comments may be enough to create a hostile work environment.

Pursuing a Claim

It is important to keep in mind that the ADEA will only apply to employers with twenty (20) or more employees.  To pursue a claim under the ADEA, an employee must first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).  Upon receipt of an ADEA complaint, the EEOC will reach out to the employer to see whether or not there is an interest in mediating the dispute. If the employer is not interested in mediation, the complaint will proceed to the investigation phase.  

With its limited resources, the EEOC is simply unable to thoroughly investigate and pursue every complaint. If the EEOC does not find sufficient evidence that a violation of the ADEA has occurred, it will issue the employee a Right to Sue letter. If a Right to Sue letter is issued, an employee has ninety (90) days to file a lawsuit in court.  An employee who prevails under an ADEA lawsuit may recover a full range of damages including back pay, front pay, attorney’s fees, liquidated damages where willful violation can be established and, if appropriate, injunctive relief.

The Older Workers Benefit Protection Act

The ADEA was amended in 1990 to include the Older Workers Benefit Protection Act (OWBPA).  An employer seeking to terminate an employee may wish to obtain a release to limit the employer’s exposure to a potential lawsuit challenging the termination.  

Obtaining a Valid Release of Federal Age Discrimination Claims

However, if the employee is age forty (40) or older and the employer wishes to obtain a valid release of federal age discrimination claims, it must strictly comply with the provisions of the OWBPA.  A release will only be considered valid if it is “knowing and voluntary”.

To be considered “knowing and voluntary”, the release must:

1) be in writing;

2) it must be written in plain language;

3) it must give the individual twenty-one (21) days to consider the agreement and seven (7) days to revoke following the execution of the agreement; and

4) it must advise the employee of his or her right to consult with an attorney.

This, of course, is not an exhaustive list of requirements; therefore, it is best for an employer to consult with an attorney when drafting such an agreement.

Ohio Age Discrimination Laws

In addition to the ADEA, Ohio has three (3) several different statutes providing protection against age discrimination.  

ORC §4112.02 establishes a civil cause of action for age discrimination.  Under this section, an employee must file suit within one hundred eighty (180) days from the alleged violation.  If successful, an employee is entitled to recover a full list of available remedies including compensatory and punitive damages.

To confuse matters further, ORC §4112.14(B) also establishes a civil cause of action for a person age forty (40) or older who is discriminated against in any job opening or is discharged without just cause but who is “physically able to perform the duties and otherwise meets the established requirements of the job and laws pertaining to the relationship between employer and employee”.   An age discrimination claim brought under this section is subject to a six (6) year statute of limitations. An employee who prevails under this section may be entitled to lost wages and benefits, reinstatement, reimbursement of costs and attorney’s fees.

Finally, ORC §4112.05(B) allows an employee to file an administrative action for age discrimination with the Ohio Civil Rights Commission (OCRC).  A charge filed with the OCRC under this section must be filed within six (6) months of the alleged violation. If an employee files a charge under this section, he or she is barred from filing a subsequent private civil action.  Likewise, an employee must elect to pursue a remedy under either ORC §4112.02 or §4112.14. An employee is barred from pursuing recovery under both statutes.

Consult with an Expert Employment Law Attorney

This article merely scratches the surface of the complex group of federal and state laws that prohibit age discrimination.  Because the statutes of limitations and damages widely vary, an attorney must analyze these claims on a case by case basis to determine which statute provides the best chance of recovery.

If you have been terminated from employment and believe that your employer was motivated by age discrimination, it is in your best interest to speak with an experienced Ohio employment lawyer right away.

You can take the first step. In Lake County, call 440.946.7656. In Cuyahoga County, call 216.861.4211.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

In Ohio, as in most other states, employment is “at will.” That means that under Ohio law, an employee is generally free to quit his or her job for any reason. Similarly, an employer may generally terminate an employee for any reason—or even for no reason—as long as the reason doesn’t violate the law.

Unlawful Termination in Ohio

Discrimination in Violation of State or Federal Law

One common basis for wrongful termination claims is discrimination on the basis of a legally protected characteristic.

For example, Title VII of the federal Civil Rights Act of 1964 prohibits employers from terminating an employee (or taking other negative actions toward that employee) on the basis of any of the following characteristics:

• Race
• Color
• Religion
• National origin
• Sex

In 1978, the statute was amended to add pregnancy to the list of protected characteristics.

Other federal laws provide additional protections for older employees, employees with disabilities, and employees with genetic information employers may deem undesirable.

A similar Ohio statute deems it unlawful discrimination to discharge an employee due to:

• Race
• Color
• Religion
• Sex
• Military Status
• National origin
• Disability
• Age
• Ancestry

While each of these different types of discrimination may give rise to a wrongful termination claim, different timelines and administrative requirements apply depending on the nature of the claim and the applicable statute. Therefore, it is wise to seek legal advice as soon as possible after being terminated under circumstances that may constitute illegal discrimination.

Retaliatory Discharge

A number of state and federal statutes include provisions making it unlawful for an employer to terminate an employee because he exercised his legal rights, reported violations, or cooperated with law enforcement or other government officials.

For example, Ohio state law prohibits an employer from terminating or otherwise punishing an employee for filing a workers’ compensation claim.

Title VII and several other federal statutes, including the Age Discrimination Act and the Equal Pay Act, include provisions protecting employees from discharge and other punitive action for asserting their rights.

Similarly, the Occupational Safety and Health Act prohibits employers from retaliating against employees who report health and safety violations or otherwise cooperate with OSHA investigations.

These are just a few examples of the state and federal laws protecting employees from retaliatory discharge.

Breach of Employment Contract

While most employment in Ohio is “at will,” some employee relationships are governed by contract. Despite the general rule that allows either party to terminate the employment relationship at will without consequences, an employer who fires or lays off an employee in violation of an employment contract may be liable for damages.

In some cases, contractual wrongful termination may be supported by something other than a formal employment contract.

Examples include the company’s employee handbook or internal policy manual.

A local employment lawyer can be the best source of information about whether you may have a wrongful termination claim.

Talk to an Employment Lawyer about Wrongful Termination

Not every employee who feels that he or she has been terminated unfairly has a wrongful termination claim. However, state and federal law protect employees under a wide range of circumstances.

If you have been terminated from employment and believe that your employer was motivated by race, religion, or another protected characteristic, it is in your best interest to speak with an experienced Ohio employment lawyer right away.

Likewise, if you have been fired without clear justification in the wake of a discrimination claim or other exercise of your legal rights, or if you have been terminated in violation of an employment contract, seek professional guidance today.

You can take the first step. In Lake County, call 440.946.7656. In Cuyahoga County, call 216.861.4211.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

By Kristen M. Kraus
Partner

Many people feel that it is illegal to terminate an employee who missed work due to illness.  While this may be true some of the time, it is not always the case. Only those employees who qualify under the Family and Medical Leave Act (FMLA) have job protection while off due to illness.  

The FMLA provides eligible employees with up to twelve (12) weeks of unpaid leave per year. It also requires that an employee’s group health benefits be maintained during the leave and requires that an employee is returned to their same or an equivalent job at the end of their FMLA leave.  

Eligibility for Leave Under the Family and Medical Leave Act

However, not all employees are eligible.  

To be eligible for FMLA leave an employee must have worked for the employer for at least one (1) year and during that year the employee must have worked at least one thousand two hundred fifty (1,250) hours within the last twelve (12) months.  29 C.F.R. § 825.110.

Employers Covered by the FMLA

But that is not where the analysis ends. Not all employers are required to offer FMLA leave to their employees. A covered employer for purposes of the FMLA is one who employs fifty (50) or more employees for at least twenty (20) workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.  29 C.F.R. § 825.104.

If the employer has less than fifty (50) employees or if the employee has not worked for at least one year, the FMLA does not apply.

Situations Where an Employee is Entitled to FMLA Leave

Assuming the above requirements are met, an employee is entitled to FMLA leave in the following situations:

• For the birth of a son or daughter;
• For the placement of a child for adoption or foster care;
• To care for an immediate family member, which includes a spouse, child or parent, suffering from a serious medical condition;
• When an employee is unable to work due to a serious health condition;
• For any exigency arising out of the fact that the employee’s spouse, son, daughter or parent is a military member on covered active duty or called to covered active duty status; 29 U.S.C. § 2612

Employer Obligations Under the FMLA

Employers have numerous obligations under the FMLA which are set forth in 29 CFR § 825.300.  

Every covered-employer is required to post a notice explaining the FMLA. This notice must set forth the employees’ rights and responsibilities under the FMLA and must also include the procedures for filing complaints with the Wage and Hour Division of the Department of Labor.  Employers may be fined for failure to provide notice.

Requesting Leave

It is important to note that an employee requesting leave for the first time is not required to specifically mention the FMLA.

Rather, when an employer acquires knowledge that employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five (5) business days.  

The employer can also request certification from the employee’s health care provider. If such a certification is requested, the employee must be given fifteen (15) days to complete the form.

Employee Responsibilities

Of course, employees have certain responsibilities under the FMLA as well.  When an employee has knowledge of his or her need for leave, the employee is required to provide thirty (30) days notice.  However, if the reason for the leave is not foreseeable, then the notice must be given as soon as practicable.

For planned medical treatment, an employee is required to consult with his or her employer to avoid unduly interfering with the employer’s business. 29 C.F.R. § 825.302.  

It is also important to keep in mind that an employer can condition the leave upon an employee’s compliance with the employer’s usual and customary procedures. In Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608 (6th Cir.2013), the Sixth Circuit rejected the plaintiff’s FMLA claim and held that the employer was justified in terminating the employee after the employee failed to adhere to the call-in procedures of the employer’s attendance policy.   

FMLA Related Litigation

Most litigation over the FMLA stems from claims that an employer either unlawfully denied FMLA leave or retaliated against an employee who exercised his or her FMLA rights.  An employee has two (2) years to file a lawsuit if he or she believes the employer engaged in unlawful conduct. The statute of limitations can be extended to three (3) years if the employee is able to prove that the violation was willful.

Although an employee may choose to file a complaint with the Department of Labor, this is not required and an employee may proceed immediately to court. Both the Federal court and State court have jurisdiction to hear FMLA claims. An employee who prevails on an FMLA claim may be entitled to back pay, liquidated damages, reasonable attorney’s fees and costs and other equitable relief which could include reinstatement.

The Consequences of Non-Compliance

Although the FMLA seems like it is pretty straightforward, nothing could be further from the truth.  An employer who fails to strictly comply with the provisions of the Act could find itself subject to significant penalties and damages.

Likewise, an employee who fails to provide proper notice, documentation and/or comply with the employer’s usual and customary practices could not only have their FMLA request denied, that employee might also be out of a job.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change. Please contact us for a personal review of your situation

Can Independent Contractors in Ohio Get Workers’ Compensation Benefits?

The short answer is “DEPENDS”—the Ohio workers’ compensation system protects employees who are injured or contract illnesses on the job.  

An “employee” under Ohio Workers’ Compensation law is a term of art and can include persons denominated by employers as “independent contractors.”

Legitimately actual independent contractors are legally self-employed, and as such doesn’t qualify for benefits. But if the self-employed contractor is actually in the employment and under the CONTROL as to the terms and conditions of employment then the answer may be otherwise.  

In short, the reality isn’t always straightforward.

Changes in the job market, including the increasing ability to perform many types of work remotely, have led to an increase in the number of workers classified as independent contractors. The growing ranks of the self-employed span virtually all industries and income levels, ranging from highly-trained and highly-paid professionals to Uber drivers, virtual receptionists, and even day laborers.

But, many of those workers are legally misclassified. That is, although their employers treat them as independent contractors and the workers see themselves that way, state and federal laws deem them employees for various purposes—minimum wage requirements, overtime pay regulations, taxes, unemployment insurance, and workers’ compensation.

What is a Misclassified Worker?

“Misclassified” is the Internal Revenue Service (IRS) term for a worker who is legally an employee, but who is being treated as an independent contractor.

Employers misclassify workers for many reasons.

Sometimes, the misclassification is an honest mistake. However, businesses have a strong financial incentive to treat employees as self-employed contractors. Classifying a worker as an independent contractor allows the employer to avoid payroll taxes, employee benefits, unemployment insurance obligations and more.

While misclassification often benefits the employer, it’s bad for nearly everyone else. It leaves the worker vulnerable since an independent contractor doesn’t qualify for workers’ compensation benefits or unemployment benefits. The worker must generally also pay higher taxes as a self-employed person because there is no employer contribution.

Misclassification Hurts Ohio’s Economy

Businesses that wrongly classify employees hurt the state and the economy as well.

Nearly a decade ago, the Ohio Attorney General’s office determined that misclassification cheated the state’s unemployment insurance system out of about $100 million per year. Bureau of Workers’ Compensation (BWC) losses were much higher, at an estimated $510 million annually.

Too often, injured workers who have been classified as independent contractors simply assume—or take the employer’s word—that they are not qualified for workers’ compensation benefits.

What Happens When an Independent Contractor Is Injured at Work?

One common scenario that deprives misclassified workers of much-needed benefits plays out like this:

The “independent contractor” is injured on the job. He reports to his supervisor, as employees are instructed to do when they’re hurt. If the injury occurred on the employer’s premises or at a client site, the supervisor may create an incident report. But, the injured employee is advised that as an independent contractor, he’s not eligible for workers’ compensation benefits. So, he’s told, he’ll be responsible for his own medical expenses and will not be compensated for lost work time.

Of course, most workers aren’t familiar with the complex analysis that determines whether they’re contractors or employees. And, they don’t know that the employer’s classification isn’t the final word.

Misclassified Workers May Qualify for Workers’ Compensation Benefits

The Ohio Bureau of Workers’ Compensation doesn’t simply accept the employer’s designation of a worker as an independent contractor. Rather, BWC may determine that a worker designated an independent contractor is legally an employ.

The focus of the BWC and the Industrial Commission of Ohio is upon CONTROL of the terms and conditions of employment.  Thus, a misclassified worker may qualify for benefits despite his or her designation. And, the employer may face penalties for falsely classifying the worker as an independent contractor.

If you have been injured on the job and have been advised that you don’t qualify for workers’ compensation because you are an independent contractor, talk to a local workers’ compensation attorney as soon as possible. You may be eligible for benefits, but the sooner you act, the better.

You can schedule a free consultation right now by calling or filling out our online contact form.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

By Kristen M. Kraus – Partner

Perhaps one of the most confusing and complex areas of employment law deals with the payment of overtime.

Most attorneys and even lay people understand that an employer is required to pay an employee overtime compensation at a rate of one and one-half (1-1/2) times the employee’s regular hourly rate for all hours worked over forty (40) in a given work week.  

However, the confusion occurs in trying to understand which employees are exempt versus non-exempt.

The Fair Labor Standards Act

The Fair Labor Standards Act of 1938 provides for the payment of overtime compensation. It also establishes a minimum wage and record-keeping standards for employees that all employers must abide by.

Employers who fail to comply with the provisions of the FLSA risk civil penalties including the payment of unpaid wages liquidated damages and payment of the prevailing employee’s attorney’s fees and costs.

Overtime Compensation Exemption Types

In analyzing whether an employee is exempt, we must first consider the type of work the employee is performing.  Under the job duties test, workers must perform certain duties as their “primary” duty. There are three (3) main exemptions under the job duties test of the FLSA – the executive exemption, the administrative exemption, and the professional exemption.  

1. The Executive Exemption

To fall under the executive exemption, an employee’s primary duty must consist of managing the enterprise or managing a customarily recognized department or subdivision of the enterprise.  Additionally, the employee must customarily and regularly direct the work of at least two (2) or more full-time employees or their equivalent. Finally, the employee must have the authority to hire or fire other employees, or the employee’s suggestions or recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.  The executive exemption can be found at 29 C.F.R. §541.100.

2. The Administrative Exemption

To qualify under the administrative exemption, an employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers.  In addition, the employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. The administrative exemption can be found at 29 C.F.R. §541.200.

3. The Professional Exemption

The final exemption that we commonly hear about is the professional exemption.  To qualify for this exemption, the employee’s primary duty must be the performance of work that requires advanced knowledge in a field of science or learning and must be customarily acquired by a prolonged course of specialized intellectual instruction.  The professional exemption can be found at 29 C.F.R. §544.300.

Salary Requirements

In addition to satisfying one (1) of the above exemptions, an employee will only be considered exempt if the employee is paid on a salary basis and if the employee earns a minimum weekly salary. Currently, the minimum weekly salary is Four Hundred Fifty-Five Dollars ($455.00) per week which equals Twenty-Three Thousand Six Hundred Sixty Dollars ($23,660.00) annually.  

Modernizing Existing Overtime Regulations

Back in 2016, President Obama issued a Memorandum directing the Secretary of State to modernize existing overtime regulations.  The result was an amendment which would have increased the minimum salary requirement to Nine Hundred Thirteen Dollars ($913.00) per week or Forty-Seven Thousand Four Hundred Seventy-Six Dollars ($47,476.00) per year.  

The change was scheduled to go into effect on December 1, 2016. However, just days before, Texas District Judge Amos L. Mazzant III issued a nationwide preliminary injunction blocking the rule from taking effect.

Currently, the minimum weekly salary remains at Four Hundred Fifty-Five Dollars ($455.00).  However, in the fall of 2018, the Trump Administration formally announced its intention to revisit the issue to determine the appropriate minimum salary level.  

While an increase is anticipated, it does not appear that this Administration will go anywhere near the $47,500 salary that was previously proposed.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation