2009 OII/OAMIC/B&E FALL SEMINAR Villa Milano ... EMPLOYMENT LAW CHALLENGES PRESIDENT OBAMA’S FIRST 300 DAYS 2009 OII/OAMIC/B&E FALL SEMINAR Villa Milano, Columbus, OH October 22,

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EMPLOYMENT LAW CHALLENGESPRESIDENT OBAMA’S FIRST 300 DAYS

2009 OII/OAMIC/B&E FALL SEMINARVilla Milano, Columbus, OH

October 22, 2009

Vladimir P. BeloBricker & Eckler [email protected]

614.227.8885

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Lilly Ledbetter Fair Pay Act

• First law signed by President Obama - January 29, 2009

• Reverses a U.S. Supreme Court decision which had rejected the “paycheck rule” for starting the statute of limitations

• Lilly Ledbetter alleged that she had learned upon retirement that she had been paid less as compared to her male co-workers and sued her employer, Goodyear

• Supreme Court held that statute of limitations for filing a wage (sex) discrimination EEOC charge begins to run when employer makes a discriminatory decision about employee’s compensation

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Lilly Ledbetter Fair Pay Act

• Ledbetter Act reverses the Court decision and allows statute of limitations to begin running anew each time an employee or retiree receives compensation affected by a discriminatory decision (i.e., the pay check rule)

• Allows for lawsuits based on decisions made many years earlier, making it more difficult to defend against allegations

• Impacts the length of time an employer should maintain certain employment records in order to have the documents to defend any claims

• Likely will lead to more pay discrimination suits against employers

• Applies to claims of discrimination under Title VII, ADEA and ADAAA

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Genetic Information Nondiscrimination Act

(GINA)

• On November 21, 2009, provisions of the Genetic Information Nondiscrimination Act (GINA) that are applicable to employers become effective

• GINA applies to employers with 15 or more employees

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GINA

• GINA broadly prohibits employers, employment agencies, and other entities from discriminating based on genetic information in the following circumstances– May not discriminate based on genetic information in

hiring, firing, compensation, and other terms of employment

– With few exceptions, it would be unlawful for an employer “to request, require, collect, or purchase protected genetic information with respect to an individual or a family member of the individual. . . “

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GINA

• GINA broadly defines “genetic information” to include, among other things, information about “the manifestation of a disease or disorder in family members of” an individual—aka family history

• As a general rule, GINA forbids employers from inquiring about “genetic information” of applicants and employees

• One exception permits an employer to obtain genetic information from employees as a part of the employer’s “voluntary wellness program”

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GINA

• The wellness program exception allows employers to request genetic information if all of the following requirements are met:– The request is made as part of a wellness

program or other health or genetic services offered by the employer

– The employee provides prior, knowing, voluntary, and written authorization

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GINA

– Only the employee and the licensed health care professional or board certified genetic counselor involved in the program receives individually identifiable information concerning the results

– The individually identifiable information is only available for purposes of the program and is not disclosed to the employer except in aggregate terms that do not disclose the identity of specific employees

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GINA

• The wellness program exception only applies to “voluntary” plans

• “Voluntary” not yet defined but EEOC has commented that a wellness program is voluntary “as long as an employer neither requires participation nor penalizes employees who do not participate”

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GINA

• If you have a wellness program, you need to confirm that it is a “voluntary” program

• If you have a “voluntary” wellness program, any health assessment questionnaire you use may not ask family history unless the wellness program exception is satisfied

• This is a new and very complex law that is interpreted by DOL, CMS and EEOC

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Medicare Secondary Payer Reporting Requirements

The Medicare, Medicaid and SCHIP Extension Act of 2007 added mandatory reporting requirements for group health plan, liability insurance (including self-insurance), no fault insurance and worker’s compensation

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Medicare Secondary Payer Reporting Requirements

• Companies with these types of coverages may be required to report certain information to the CMS where the injured party is a Medicare beneficiary and receives a payment due to an illness or injury under such coverages

• Obligation could involve payments for injuries under, for example, self insurance, property insurance, EPLI insurance, automobile insurance, general casualty insurance

http://www.bricker.com/publications/articles/1450.pdf

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American Recovery and Reinvestment Act of 2009

The Act contains• A federal government subsidy of COBRA

continuation coverage premiums for an “Assistance Eligible Individual” (“AEI”) (for a maximum of nine months)

• AEI is only required to pay 35% of the premium actually charged for COBRA continuation coverage

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ARRA

• Remaining 65% of the premium is “paid” by the federal government to the entity to which the premiums are payable (e.g. employer, plan or insurer) by reducing the entity’s federal payroll tax liability by the amount of unpaid premiums

• The COBRA premium subsidy does not apply to COBRA continuation coverage premiums for health flexible spending arrangements under a cafeteria plan

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ARRA

• The COBRA premium subsidy applies to periods of COBRA continuation coverage beginning after the enactment of ARRA. 2/17/09

• Since most group health plans use calendar months as the period of coverage under COBRA, the COBRA premium subsidy began for most plans on March 1, 2009

• COBRA subsidy stops for months of coverage beginning on or after the earlier of: (1) the first date that the AEI becomes eligible for coverage under any other group health plan (other than plans providing only dental, vision, counseling or referral services, or flexible spending plan) or

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ARRA

• (2) the date which is nine months after the first day of the first month to which the COBRA premium subsidy applies; or (3) the end of the maximum COBRA continuation coverage period required by law; or (4) for an AEI who elects COBRA continuation coverage during the special enrollment period, the end of the maximum COBRA continuation coverage that would have applied if the AEI had elected COBRA continuation coverage when first eligible.

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U.S. Supreme CourtRetaliation Decision

• Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against any employee who (1) opposes an unlawful employment practice (opposition clause), or (2) has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing (participation clause)

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Crawford

• The question before the U.S. Supreme Court in Crawford v. Metropolitan Govt. of Nashville, et al, (January 2009) was whether Title VII anti-retaliation protections cover employees who “report” discrimination or harassment during the course of an employer’s own internal investigation, when there is no administrative charge or lawsuit pending

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Crawford

• Crawford, was interviewed in the investigation of rumors of sexual harassment by the Employee Relations Director

• She stated she witnessed sexually harassing behavior

• Later, Employer terminated Crawford for alleged embezzlement

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Crawford

• Crawford claimed that her termination was in retaliation for her “reporting” the alleged sexual harassment.

• Crawford lost in both the trial court and the U.S. Sixth Circuit Court of Appeals because she had not instigated or initiated any complaint--no opposition activity and her answering questions in an internal investigation not pursuant to a pending EEOC charge did not amount to “participation activity”

• In a unanimous decision, the Supreme Court reversed the ruling of the court of appeals and reinstated Crawford’s lawsuit.

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Crawford

• The court held that an employee can “oppose” unlawful discrimination by merely responding to someone’s questions

• Title VII’s anti-retaliation protection extends to an employee who speaks out about discrimination while participating in an employer’s internal investigation, even when the employer’s investigation did not related to a pending EEOC charge and regardless of whether the employee initiated the allegations or provoked the discussion regarding the unlawful discrimination

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Age Discrimination Decision

• The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful for an employer to take an adverse employment action against an employee “because of such individual’s age”

• June 18, 2009, the U.S. Supreme Court ruled in Gross v. FBL Financial Services, Inc. that the ADEA does not authorize “mixed-motive” claims of age discrimination

• The premise of a “mixed-motive” claim of discrimination is that the employer took some adverse employment action (e.g., firing or demotion) because of both a permissible reason and an unlawfully discriminatory reason

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Gross

• Court held to succeed under the ADEA, an employee must prove that age was the reason, and not just a reason, that motivated the employer’s adverse action

• Just last week, members of Congress introduced a bill to overturn this decision

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Employee Free Choice Act (EFCA) (H.R. 800; S.1041)

As was discussed last year, the Employee Free Choice Act seeks to amend the National Labor Relations Act (NLRA) to achieve several pro-union results• to make it easier for unions to organize employees

• to radically alter the first contract negotiating process

• to increase penalties for employers who oppose organizing efforts

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Why?• A union is a business

• Members = dues dollars

• Easier organizing = more members

• More members = more dues dollars

• More dues dollars = more political clout

• Political clout has increased following 2008 elections

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Why EFCA?

• Traditional onsite organizing methods are not working

• % employees unionized decreased significantly over the years

• Employee opposition stifles Union’s success rate

• Unions believe they need statutory change—nothing else

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Why Now?President Obama supports EFCA and was a sponsor in the last Congress

Present CongressHouse of Representatives

– 256 Democrats– 178 Republicans– 1 Vacant (California)

Senate– 58 Democrats– 40 Republicans– 2 Independents

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Current Process

• Union obtains authorization cards for minimum 30% of proposed bargaining unit

• File representation petition for election with NLRB

• Bargaining unit membership issues determined (ex supervisor can’t be in unit)

• Election set for 35-42 days from filing date

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Current Process

• Employer has opportunity to campaign against union by educating employees

• Supervised secret ballot election• If employer wins, this union banned for 1

year• If employer loses, must meet and confer in

good faith but need not reach agreement

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Current Penalties for Employer Unfair Labor Practices

• Typically reinstatement of terminated employee

• Backpay• Notice posting• In rare cases, a bargaining order

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Employee Free Choice Act (EFCA)

Card Check Certification Of Union By NLRB• Majority (50%+1) of signed authorization cards

• No secret ballot election

• No pre-election employee education opportunity to campaign against union

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Employee Free Choice Act (EFCA) (H.R. 800; S. 1041)

Expedited Collective Bargaining (initial contract)• Commence within 10 days after union request• 90 days to reach agreement• 30 days mediation (FMCS)

Interest Arbitration (Imposed Contract Terms)• Panel appointed by FMCS• Would determine unresolved wages, hours, terms &

conditions of employment• Binding contract for up to two years

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Employee Free Choice Act (EFCA) (H.R. 800; S. 1041)

Increased Employer Penalties for willful or repeated violations of employee rights (ULPs) during organizing campaign or bargaining for first contract• Injunctions – discharges, discrimination threats

and interference ULPs

• Treble back pay

• $20,000 civil penalty (willful/repeated violations)

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Employer Concerns

• Coercion/intimidation of employees to sign cards• Pre-election education period eliminated• Secret ballot election eliminated• Third-party imposes economic terms (hourly

rates, shift differentials, etc.)• Third-party imposes fringe benefit terms (health

care premiums, etc.)• Third-party imposes terms such as discipline

and work rules• Economic penalties (three times back pay, civil

penalty) for vigorously opposing unionization

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Possible EFCA Compromises

• Shorter period from petition filing to vote (5 to 14 days)

• Vote by mail• Union access to employees at worksite• Longer first contract negotiations period (e.g.,

6 months) before mediation

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Possible EFCA Compromises

9/15/09 Senator Arlen Specter D-PA (former R-PA) announced at AFL-CIO convention compromise pounded out:– No card check, rather, quickie election,

tougher penalties for employers, binding arbitration for 1st contracts

– Despite details to be worked out, predicted passage by year’s end

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Possible EFCA Compromise

AFL-CIO denied deal reached and denied card check dropped

AFL-CIO announced it had not “signed off”on any compromise

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ECFA• It is unclear if and when EFCA or EFCA-lite will pass

Congress• Unions were huge supporters of President Obama and

Democratic candidates and have made numerous public statements that they will hold elected officials to their promises for support of EFCA

• This is the time for employers to get their employee relations house in order

• Authorization cards are good for 1 year and we know unions are collecting them in anticipation of passage of reform legislation

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NLRA Modernization Act(H.R. 1355)

Introduced March 2009 and referred to committee

• Would require employers to provide equal access to employees before an R election

• Employer required to notify union of anti-union campaign activities

• Employees entitled to double back pay• Limits on time to reach 1st collective bargaining

agreement

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Truth in Employment Act(H.R. 2808, S. 1227)

Introduced June 2009 and referred to committee• Would amend the National Labor Relations Act (NLRA)

to allow employers to refuse to hire undercover professional union organizers, commonly known as “salts,” when primary objective of salt is not employment

• Introduced by Republican sponsors• Currently, an employer has the right to require an

alleged “salt” to perform his/her work as normally expected, but the employer cannot discriminate against a “salt” because he/she is affiliated with a union

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Truth in Employment Act(H.R. 2808, S. 1227)

• Currently, an employer has the right to require an alleged “salt” to perform his/her work as normally expected, but the employer cannot discriminate against a “salt” because he/she is affiliated with a union

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Proposed Federal LegislationThe Congressional Workers’ Rights Agenda

The Watch List:• FML Enhancement Act of 2009• FMLA Restoration Act• FMLA Inclusion Act• Family Fairness Act of 2009• Domestic Violence Leave Act• Paycheck Fairness Act• The Fair Pay Act of 2009• Healthy Families Act• Paid Vacation Act of 2009

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Proposed Federal LegislationThe Congressional Workers’ Rights Agenda

The Watch List:• Family Leave Insurance Act of 2009• Working Families Flexibility Act• Protecting America’s Workers Act• Employment Non-Discrimination Act of 2009• Forewarn Act• Equal Employment for All Act• Taxpayer Responsibility, Accountability and Consistency

Act of 2009

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The Congressional Workers’ Rights Agenda

• Common theme throughout the “Watch List” is “One size fits all”

• Keep updated at Bricker’s State & Federal Legislation Resource Center at:

www.bricker.com/legal services/practice/employ/legislation

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Republican Employment Initiatives

• Family Friendly Workplace Act

• Common Sense English Act

• Title VII Fairness Act

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FML Enhancement Act of 2009 (H.R. 824)

Introduced February 2009 and referred to committee

• Would expand FMLA to include employers with more than 25 employees

• Would expand reasons for taking leave to participating in child’s or grandchild’s educational or extra curricular activities or to take a child or elderly relative to a medical appointment

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Family & Medical Leave Restoration Act (H.R. 2161)

Introduced April 2009 and referred to committee

• Would reverse some of the changes from new regulations adopted in 2008

- Attendance bonus

- Non compliance with employer’s leave request policies

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Family & Medical Leave Inclusion Act (H.R. 2132)


• Would expand reasons for leave to care for parent-in-law, adult child, sibling, grandparent, domestic partner, child of domestic partner, and same sex spouse with serious health condition

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Family Fairness Act of 2009(H.R. 389)

Introduced January 2009 and referred to committee

• Would expand FMLA to part-time employees who have been employed 12 months

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Domestic Violence Leave Act (H.R. 2515)

Introduced May 2009 and referred to committee

• Would amend the FMLA to permit leave for victims addressing domestic violence, sexual assault, or stalking and their effects

• Would also permit leave to care for a family member that is addressing domestic violence, sexual assault, or stalking and their effects

• Would amend the FMLA to include coverage for same-sex spouses and domestic partners

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Healthy Families Act (H.R. 2460, S. 1152)

Introduced May 2009 and referred to committee

• Would apply to employers with 15 or more employees

• Employees who work at least 20 hrs/wk would earn 1 hour paid sick leave for every 30 hours worked (max. 56 hours) unless employer elects to allow greater amount

• Paid sick leave would carry over from year to year, but employers may cap sick leave at 56 hours

• Employees would be initially entitled to use accrued leave after 60 days

• After 60 days, employees would be entitled to use leave as the time is earned

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Uses of Paid Sick Leave• Employee’s illness, injury, medical condition or

related treatment/care, including preventative care• Care for a child, parent, or spouse who has one of

the above conditions• Care for any other individual related by blood or

affinity whose close association with the employee is equivalent of a family relationship (undefined), who has one of the above conditions

• Certain absences resulting from domestic violence, sexual assault, or stalking

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• Oral or written requests for use 7 days in advance if foreseeable; otherwise, as soon as practicable

• Must provide notice of expected duration

• Usage in increments of time not addressed

• Need not pay out upon termination

• Employer may require certification for health-related or treatment-related absences when they cover more than 3 consecutive workdays

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Paycheck Fairness Act (H.R. 12, S. 182)

Introduced into the House January 6, 2009Passed House 256-163 January 9, 2009

Introduced into Senate January 8, 2009 and reported out by committee for consideration of entire Senate – remains in the Senate

Would amend Equal Pay Act (adopted 1963) (which makes it unlawful for employers to pay unequal wages to men & women who perform substantially equal work) by• Adding compensatory and punitive damages

(currently only liquidated damages and back pay)

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• Permitting class actions (currently Plaintiffs must opt in to a class which is the opposite of the federal class action rule in which plaintiffs are in the class until they opt out)

• Narrowing “bona fide factor other than sex” defense and tie it more closely to job performance and is consistent with business necessity

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• Allow comparisons of employees in employer’s offices in broader areas such as county, political subdivision or offices in some commonsense circumstances

• Requires EEOC to issue regulations and employers to submit pay data ID’d by race, sex and national origin of employees

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The Fair Pay Act (H.R. 2151, S. 904)


• Amend FLSA to require equal wages in equivalent jobs:bona fide factor other than sex, race, national origin defense to be narrowly construed

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Paid Vacation Act (H.R. 2564)

Introduced May 2009 and referred to committee• Would amend FLSA to require paid vacation for

eligible employees (employees that have worked for the employer for 12 months and at least 1,250 hours)

• Employers with 100 employees must immediately provide 1 week paid vacation per each 12 month period for eligible employees

• 3 years after effective date of law, employers with 100 employees must provide 2 weeks paid vacation per each 12 month period

• 3 years after effective date of law, employers with 50 employees must provide 1 week paid vacation per each 12 month period

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Paid Vacation Act (H.R. 2564)

• Employees must give at least 30 days’ notice of the vacation to the employer, including date it will begin

• Employer’s ability to say “No” not addressed

• No rollover of vacation from year to year

• The vacation must be taken in a “continuous series or block of work days comprising 7 calendar days”

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Family Leave Insurance Act (H.R. 1723)


• Would provide eligible employees up to 12 weeks of full or partial wage replacement based upon employee’s annual income for absences that qualify for leave under the FMLA

• Amount of benefit depends on annual income of employee

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Family Leave Insurance Act (H.R. 1723)

The following employers would be exempt from paying premiums:

• Employers or self-employers with voluntary plans approved by the Secretary of Labor because they have an equivalent or better program

• Does not appear that sick, vacation or PTO would be equivalent plans

• Employers with more than 1 employee but less than 20 employees that elect not to participate

• The act would also create a Civil Service Family and Medical Leave Insurance Program for certain federal agency employees.

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Working Families Flexibility Act (H.R. 1274)

Introduced March 2009 and referred to committee(Sen. Obama cosponsored a similar bill in last Congress)

• Would apply to employers with 15 or more employees

• Would apply to employees that work at least 20 hours per week or at least 1,000 hours per year

• Would require an interactive process between employer and employee with respect to employee requests for flexible scheduling

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Would grant employees a right to ask for flexible scheduling with respect to:

(1) the number of hours required to work; (2) the times when the employee is required to work;(3) the location where the employee’s work is to be done.Upon receiving a request, employer must:• Hold meeting with employee within 2 weeks to discuss

application and provide a written decision regarding the application

• If application is rejected, employer must provide a reason

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• Employee can request reconsideration and employer and employee would be required to meet again

• Employer’s final decision must be in writing and state grounds

• Retaliation for making request is prohibited• An employee may file a complaint with the USDOL

and the USDOL will investigate the complaint• An employer that violates an employees rights under

the act is subject to a civil penalty between $1,000 and $5,000

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Protecting America’s Workers Act (H.R. 2067, S. 1580)

House Bill Introduced April 2009 and referred to committee

(Sen. Bill Introduced August ‘09 and referred to committee)

• Would Amend Occupational Safety and Health Act (OSHA)

• Would expand OSHA coverage to include federal, state, and local public employees

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Would increase whistleblower protection

• Codifies regulations that give workers the right to refuse to do hazardous work

• Clarifies that employees cannot be discriminated against for reporting injuries, illnesses or unsafe conditions

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• Would provide for investigation of incidents resulting in a death or hospitalization of two or more employees

• Would provide workers and employee representatives the right to contest a failure to issue citations, classification ofits citations, and proposed penalties

• Would clarify that the time spent by an employee accompanying an OSHA inspector during an investigation is considered time worked, for which a worker must be compensated

• Would allow any worker or their representative to object to a modification or withdrawal of a citation, and would entitle them to a hearing before the Occupational Safety and Health Review Commission

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Would increase OSHA civil penalties• Raise civil penalties and indexes those penalties to

inflation • Establish mandatory minimum penalties for violations

involving worker deaths

Would expand OSHA criminal penalties• Remove the requirement that a workplace death must

occur before criminal penalties can attach• Allow felony prosecutions against employers who

commit willful violations that result in death or serious bodily injury, and extends such penalties to responsible corporate officers

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Employment Non-Discrimination Act(S. 1584, H.R. 3017, H.R. 2981)

House Bill Introduced June ‘09 and referred to committee

(Sen. Bill Introduced August ’09 and referred to committee)

• Would prohibit employment discrimination based on perceived or actual sexual orientation or gender identity (similar protections as other classes under Title VII)

• Approximately 20 states have similar protections for sexual orientation

• Approximately 13 states have similar protections for gender identity

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Employment Non-Discrimination Act(S. 1584, H.R. 3017, H.R. 2981)

• Ohio’s General Assembly has considered similar protections several times, most recently introduced in May 2009

• Would not require employers to provide benefits to domestic partners of their employees

• Would not apply to employers that are exempt from the religious discrimination provisions of Title VII

• Would not apply to the relationship between the Unites States and members of the Armed Forces

• Does not provide for disparate impact claim (neutral policy with adverse impact on a protected group)

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Forewarn Act(H.R. 3042, S. 1374)

Introduced June 2009 and referred to committeeWould amend WARN Act (plant closing/mass layoff)

• Reduce employer size from 100 to 75 employees

• Reduce mass layoff figure from 50 to 25 employees

• Reduce plant closing figure from 50 to 25 employees

• Increase notice time from 60 days to 90 days

• Increase damages for violation to double back pay

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• Would give USDOL authority to investigate and prosecute alleged WARN violations

• Would eliminate WARN’s current distinction between “part-time” and “full-time” employees

• WARN notices would be sent to Secretary of Labor and the governor of the state where the plant closing or mass layoff will occur

• Within 15 days of receiving WARN notices, the Secretary or Labor would notify the Senators and Representatives who represent the area or areas where the plant closing or mass layoff will occur

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• Would require the Secretary of Labor to maintain a guide of benefits and services which may be available to affected employees, and employers would be required to provide the information from the guide to affected employees

• Two-year statute of limitations on WARN lawsuits• Would prohibit an employee from waiving or losing rights

under WARN through any agreement or settlement, unless the Secretary of Labor, an attorney general of any state, or a private attorney on behalf of affected employees negotiates the agreement

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Equal Employment for All Act(H.R. 3149)

Introduced July 2009 and referred to committee• Would amend the Fair Credit Reporting Act to prohibit the

use of consumer report or investigative consumer report pertaining to credit worthiness, credit standing or credit capacity against prospective and current employees for the purposes of making adverse employment decisions

• Exceptions for national security, FDIC clearance, employment with state/or local government agency that otherwise requires use of consumer report

• Employee/applicant applies/holds supervisory, managerial, professional or executive position with financial institution; or otherwise required by law

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Taxpayer Responsibility, Accountability and Consistency Act (H.R. 3408)

Introduced July 2009 and referred to committee

• Would make it more difficult for employers to avoid employment tax liability if they have misclassified a worker as an independent contractor

• Would significantly increase employer penalties in the event of the misclassification

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Family Friendly Workplace Act (H.R. 933)

Introduced/sponsored by RepublicansFebruary 2009 and referred to committee

• Amend FLSA to allow most private sector employees option to receive compensatory time instead of overtime

• Maximum accrual 160 hours OT

• Payout of unused OT at end of each year

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Common Sense English Act(H.R. 1588)


• Would amend Title VII to state that it is not an unlawful employment practice for an employer to require employees to speak English while engaged in work

• Sponsored primarily by Republicans

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Based on the following Congressional findings:

• “English has been the common thread to unify American people much as they are united under one flag”

• “Americans overwhelmingly believe that it is very important for people living in the United States to speak and understand English”

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Based on the following Congressional findings (continued):

• “There is vast support among the American people to allow a company the freedom to implement English in the workplace policies”

• “When a group of employees speaks a language other than English in the workplace, it may cause misunderstandings, create dangerous circumstances, and undermine morale”

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Title VII Fairness Act(S. 166)

Introduced/sponsored by RepublicansJanuary 2009 and referred to committee

Would provide that the statute of limitations on a Title VII claim would begin to run when an employee reasonably suspects or should suspect that discrimination has occurred

Presently, S/L runs from the date an alleged discriminatory act occurs

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Proposed Ohio Legislation

• HB 176 – would prohibit discrimination on the basis of sexual orientation or gender identify and expression

• HB 170 – would prohibit employer from retaliating against employees for testifying or otherwise participating in an unemployment compensation proceeding or hearing

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• SB 21 and 145 – would create a tax credit for wages paid by employers to employees who are qualified reforming felons (employee must be hired within one year of conviction or release and meet certain family income requirements)

• HB 224 – would authorize a nonrefundable tax credit for hiring and employing previously unemployed individuals

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• HB 46 – would allow an individual that quits work to accompany a spouse that is subjected to a military transfer as a member of the armed services to be eligible for unemployment compensation benefits

• HB 40 – would require certain employers to allow a parent to exercise court-ordered parenting time without terminating employment, reducing pay, or taking other similar action against the parent

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Proposed Ohio Legislation – HB 167

• Would prohibit an employer from failing to hire, discharging, or otherwise discriminating or retaliating against an individual or employee of the employer because the individual or employee is perceived to be or is a victim of domestic violence

• Would prohibit an employer from taking an adverse employment action against an employee based on any disruptions or threatened disruptions in the workplace caused by another individual who has committed or threatens to commit domestic violence against the employee

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• Would prohibit an employer from discharging or otherwise retaliating against an employee who requests a reasonable accommodation under the bill, or who uses unpaid leave to attend a court proceeding to obtain a protection order or other injunctive relief or to seek medical attention related to an incident of domestic violence, with certain exceptions

• Would require an employer to develop a policy that includes reasonable accommodations within the workplace to address domestic violence

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• Would require an employer to hold any information that the employer receives from an individual or an employee under the bill in the strictest confidence, unless the individual or the employee gives written consent to allow the employer to share the information

• Would permit an individual or an employee who believes that the individual has suffered an injury as a result of an employer’s violation of a duty created under the bill to bring a civil action against the employer

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Proposed Ohio Legislation – SB 17

• Would permit private employers to award compensatory time off in lieu of monetary overtime compensation to their employees, subject to the consent of the employee and other specified conditions

• Would prohibit private employers from requiring their employees to accept compensatory time off in lieu of monetary payment for overtime

• Would establish civil and criminal penalties for violations of the bill's provisions

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• Would not apply in practice to most employers due to FLSA

• Would appear to apply only to employers that have annual gross sales between $150,000 (the state threshold) and $500,000 (the federal threshold) and are not engaged in interstate commerce or in the production of goods for interstate commerce

• Reported out of committee in May 2009

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• Would make it an unlawful discriminatory practice for an employer to use a person's credit rating or score or consumer credit history as a factor in making decisions regarding that person's hire and employment

• Would allow a person to file a charge with the OCRC relating to such an unlawful discriminatory practice

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Questions?

Vladimir P. [email protected]

614.227.8885

Columbus • Cleveland • Cincinnati-Daytonwww.bricker.com

Documents

2009 OII/OAMIC/B&E FALL SEMINAR Villa Milano ... EMPLOYMENT LAW CHALLENGES PRESIDENT OBAMA’S FIRST 300 DAYS 2009 OII/OAMIC/B&E FALL SEMINAR Villa Milano, Columbus, OH October 22,