Excerpts from December, 2012 “An Ounce of Prevention” Newsletter

*The following are excerpts from some of the articles presented in our Newsletter. Please contact us to obtain complete copies of past Newsletters.

Check Your “At-Will” Disclaimers Before the NLRB Does

The National Labor Relations Act (NLRA) used to rarely concern non-unionized employers, even though it has always applied to essentially all private workplaces. That has changed over the past few years as the National Labor Relations Board (the Board) has launched increasing attacks on non-union workplaces, alleging violations of the NLRA.

The latest attack from the Board is against the “at-will” disclaimers found in nearly every company’s employee handbook. The Board found the following statements to be unlawful: “I agree that the at-will employment relationship cannot be amended, modified or altered in any way”; “I understand that my employment is ‘at-will’”; and “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and [the President].”

In a separate case, the Board found an employer violated the NLRA when it prohibited employees from discussing an ongoing investigation into an employee’s alleged misconduct.

Finally, yet another Board decision struck down an employer’s rule prohibiting employees from electronically posting statements that “damage the company … or damage any person’s reputation.”

When Not to Keep an Employee’s Termination a Secret

Ohio law prohibits employers from retaliating against an employee for pursuing a workers’ compensation claim. R.C. § 4123.90. If an employee believes he was terminated in retaliation for protected activity, he must notify the employer in writing within 90 days of the termination. If an employee does not timely notify his (former) employer, he cannot sue for workers’ compensation retaliation.

The Ohio Supreme Court ruled that an employer must notify an employee of his termination within a reasonable time to avoid a possible extension of the 90-day period. The Court specifically noted that a delay of several days would not increase the 90-day window, but if the employee does not have actual knowledge of his termination within a reasonable time, the 90-day period would start on the date he knew or should have known about the termination.

Employee Wins Military Leave Case Without Going to Trial

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides significant rights to applicants and employees who are in or going into the military.

In a case decided by the federal Circuit Court which covers Ohio, a police officer (Perry) took leave for active duty in the Army.

Upon Perry’s return from active military duty, the department promptly returned him to work, but they assigned him to as desk job while he underwent the return-to-work process. During this time, the department discovered that Perry may not have been truthful on this paperwork, so it continued the investigation (leaving Perry on desk duty). Perry sued, alleging that the department violated the USERRA when it refused to promptly reinstate him to his regular patrol job. The court agreed, and issued judgment in Perry’s favor as a matter of law.

State and Federal Legal Updates

The Ohio BWC has adopted a new policy with respect to settlements involving injured workers who are or may soon be Medicare-eligible.

As of January 1, 2013, new Fair Credit Reporting Act (FCRA) forms must be used, because enforcement of the FCRA is moving from the Federal Trade Commission to the Consumer Financial Protection Board.

The Department of Labor has issued a guide with flowcharts to help employees and employers determine when employees may be eligible for leave under the Family and Medical Leave Act (FMLA).

As of 8/31/12, texting while driving is illegal state-wide.

The Ohio legislature recently enacted R.C. § 2953.35, which provides a mechanism for certain individuals who have served time in jail to apply with a court for “a certificate of qualification for employment” (CQE). If an individual with a CQE is hired and later commits an act that results in a negligent hiring claim against the employer, the employer’s knowledge of the CQE provides immunity from the negligent hiring claim.

An employee is generally not entitled to temporary total disability compensation (TTD) if he is terminated for violating a known, clear written work rule that defines the misconduct as a dischargeable offense. The Industrial Commission’s (IC) decisions over the past 7 years are available online, and Atty. Rose recently read all of these decisions. In one particular case, the IC ruled that an injured worker did not abandon his employment even though he was terminated for sleeping on the job, because the employer had no written work rule prohibiting such conduct!

EEOC Issues New Strategic Enforcement Plan

In September, the EEOC issued a new “strategic enforcement plan” to notify the public of cases and issues it intends to pursue more vigorously than others. One such target is “class-based (race, gender, age, etc.) intentional hiring discrimination and facially neutral hiring practices that adversely impact particular groups.” Here, the EEOC is looking for recruiting and hiring policies and practices which are exclusionary to protected classes, the channeling/steering of individuals into specific jobs due to their status in a particular group, restrictive application processes, and the use of screening tools that adversely impact protected groups. The targeted enforcement discussed here requires absolutely no intent to discriminate. Rather, the EEOC is focusing only on the impact of recruiting and hiring decisions.