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FAQ: Employment Law


Notification of termination

What makes a good employee rights attorney?
Employment-At-Will in Ohio.
Employment contracts in Ohio.
Exceptions to the “at-will” doctrine in Ohio.
What if my employer violated its employment policies or handbook?
Can an employer ever be held to promises made to an employee?
Should I resign to avoid being fired?
What is “discrimination” and do I have a claim?
Types of “harassment” that you cannot sue for.
Unlawful harassment in the workplace.
Do I have a claim for “retaliation”?
What constitutes “wrongful discharge” or “wrongful termination” in Ohio?
Settling employment-related claims.
Special terms applying to unions and employees under union contracts.
Special terms applying to certain government workers.
Limited rights of “probationary” employees.
What is a “trade secret” and what are an employee’s obligations?
Are non-compete agreements always enforceable?
What can I do about someone giving me a bad reference?
What are the rights of a “whistleblower”?
Can I collect worker’s compensation for a job-related injury or disease?
Can I collect unemployment compensation?
My employer has not paid what I’m owed for work I’ve done, so what can I do?
What are my privacy rights as an employee?
What are an employer's wage-and-hour obligations under federal and state law?
When can I be held liable personally for what I do on behalf of my employer?
Is there a deadline for bringing an employment-related claim?

file What do I need to consider when hiring an employment lawyer?

First, do not wait until it is too late. If you find yourself questioning the validity of the circumstances leading to the termination of your employment or some change in your work conditions, reporting relationship, policies or procedures, or the terms and conditions of employment, you should not put off consulting an experienced employment attorney. I have seen far too many instances of not being able to do as much to help a client as I might have if I had been consulted when it appeared that termination might be imminent or before the change in circumstances finally prompted the client to see me. Considering the impact losing one’s job is likely to have on one’s financial stability, employment issues should be held in the highest regard. In order to protect your assets, both current and future, you should never delay in contacting an authority on any issue involving the aspects of your employment.

Second, when hiring an employment attorney, be sure to ask how the attorney’s experience in this field was built. This is the single most important factor in deciding which lawyer you would want to be your advocate. If you retain the Law Offices of S. David Worhatch, you will receive the personal attention of an employment lawyer with 27 years of experience and not be shuttled by partner of a larger firm to a relatively inexperienced junior associate. After working as a federal judge's law clerk and in private and corporate practice during his first ten years after graduating from the Notre Dame Law School, Mr. Worhatch recognized a need for high quality representation of the employee in the work setting and decided to build on his success in representing management in commercial negotiations, litigation, and employment-related disputes as in-house counsel for two major Northeast Ohio companies. So in 1989, Mr. Worhatch established his practice and dedicated himself to helping individuals victimized in the employment setting. His experience also helps to give individuals and small business owners virtually the same kind of service they otherwise can get only by turning to high-priced, “overhead-rich” downtown law firms.

Third, when hiring an attorney, do not be afraid to go with your instincts. Do not hire anyone without meeting him or her face-to-face and asking all the questions you need to ask to be assured of the attorney’s abilities, experience, and advocacy skills

Fourth, it does not matter how qualified an attorney is if you cannot build and maintain a good relationship with him or her. Remember that you and your employment lawyer will work as a team on your case. You do not just turn over the case and wait for it to be over.  A good rapport and an open communication style are essential to a solid attorney-client relationship.  If you don't have both, find another lawyer.

Fifth, get clarity on fee arrangements up front. You should recognize that most experienced employee rights attorneys will ask you for a fee to investigate your claim. Those that say they will accept your employment-related case on a pure contingent fee basis without conducting an investigation might not have the level of experience in this area of the law that you will need for your case. Remember that an employment-related case is not like a personal injury case. There are many more defenses available to employers in employment-related disputes than are generally available to people or companies responsible for causing a personal injury. Thus, a seasoned employment attorney is likely to ask you to pay a retainer equal to roughly 6 to 12 hours of work to investigate the underlying facts, research the law, and give you a professional assessment of whether your claim would merit formal legal action. Initial consultations to determine whether making such an investment might be worthwhile will cost you the value of between 1 and 2 hours of professional service. Once a decision is made to sue the employer, experienced employee rights counsel generally will work with you in providing you with an array of flexible fee options. Make sure you ask about them in your initial meeting with your lawyer. And if your agreement with your employment lawyer calls for his or her fee to be determined, in whole or in part, on a contingency basis, make sure you get the terms of the contingent fee in writing and insist on having the attorney provide in that written agreement for all possible outcomes of the case, including what you will owe if you win, if you lose, if you settle before or after going to court, if your lawyer ceases to represent you for reasons beyond your control, and if you terminate the attorney’s services with cause or for your own convenience.

What does “at-will” employment mean to me?file

Unless you have your own written employment contract or you work under a union contract of some sort or you are protected by civil service laws, you are employed "at-will" in Ohio. This means you can be fired and the terms and conditions of your employment can be modified with or without cause, with or without notice, at any time. Most times, this principle works to the employer's advantage, not the employee's.

Many people wonder why the employment “at-will” doctrine is the law in Ohio. Our ultra-conservative State Legislature and courts have not seen fit to modernize Ohio’s employment laws for the protection of employees. This policy of trying to make Ohio a “business-friendly” state actually has turned back many of the strides made in defending the rights of employees when more progressive politicians lived in the Governor’s Mansion and controlled the State Legislature.

The policy “advanced” by the “at-will” doctrine is that our free enterprise system of economics thrives best when the marketplace for talent in the workforce remains dynamic or fluid. Supposedly, by allowing both employers and employees to terminate the employment relationship at any time, with or without notice, and without having to have any justification whatsoever, both employers and employees have more flexibility and more options when seeking to fill job openings.

Of course, this policy works best when economic times are great. During seven of the eight years of the Clinton Administration, for example, the economy in Ohio was booming and if one of my employment clients lost his or her job, it was not so hard to find another job. So negotiation of severance or separation terms was not as critical during those good economic times.

But the “at-will” policy does not work so well during bad economic times. When I formed my law firm in 1989 upon voluntarily leaving Corporate America as in-house counsel for a large Northeast Ohio company, the administration of President George H.W. Bush was struggling with our nation’s economy and my practice as an employee rights lawyer took right off. After President Clinton left office, the good economic times eroded and President George W. Bush and the Republican-led Congress have delivered record-high budget deficits and soaring unemployment numbers during the rocky years of the current administration.

Since I formed my law firm in 1989 dedicated to the representation of the individual in the employment setting, Ohio’s laws have become more and more “business-friendly” and less and less “family-friendly.” This makes it all the more important for you to secure the services of an experienced employment attorney to protect your most valuable assets – your career and your income – both in good economic times and especially in bad economic times.

Are there ways around the “at-will” employment doctrine? Would my having an employment contract help me?

Individuals protected under union contracts and most government workers protected by civil service laws are not affected by the “at-will” employment doctrine.

For most employees in the private sector, the best way around the “at-will” employment doctrine is to negotiate your own individual employment contract with your employer. Executives and senior-level managers generally find it easier to persuade their employers to abandon the built-in employer-friendly benefits of “at-will” employment relationships. But mid-level managers, “key” employees in an organization, those hired to assure a smooth transition once a merger or acquisition has occurred, top-producing sales personnel, “key” workers with indispensable technical skills, engineers, and employees having solid relationships with important customers, clients, and vendors also generally can persuade their employers to enter into individual employment contracts to protect their specific interests.

I have years of experience with negotiating and drafting employment contracts for both employers and employees. I take a comprehensive approach to the employment contract process. Professional athletes and performing artists hire agents to negotiate their deals for them. Those agents either are lawyers themselves or hire attorneys to attend to all the details of the terms and conditions of employment, the bonuses and benefits for which the athlete or artist will be eligible, and other important terms that spell out the duties undertaken, the conditions under which the relationship can be terminated or modified, the consequences if either party breaches the employment contract, and the transition benefits to be paid under severance or separation terms if the employment relationship should terminate for reasons other than “just cause” as defined in the contract.

Why shouldn’t other employees have the same opportunities to protect themselves and the ones they love with individual employment contracts?

If an employer agrees to offer an individual employment agreement, the employee must be careful about scrutinizing the proposed terms and conditions. Often times, the employer will draft an eight-page contract that looks good on its face until the employee or his or her counsel realizes that the contract merely re-confirms an “at-will” employment relationship in the guise of an individual employment contract. Other draft agreements leave far too much to the employer’s discretion in terms of defining job duties, reporting relationships, eligibility for incentive compensation, stock options, perquisites of employment (commonly called “perks”), rights to ownership of technological advances made by the employee during his or her tenure with the company, obligations to refrain from competing with the employer once the employment relationship terminates regardless of who initiated the termination of that relationship, etc.

An experienced employment attorney can help you to identify all of the key employment contract issues while negotiating and drafting an agreement that will let you truly realize the benefit of your bargain and protect what you earn against unfair employer conduct in the future or the uncertainties that come with having to weather harsher economic times as the employment relationship continues.

Can I sue for my employer’s violation of policies or procedures outlined in a policy manual or handbook?

An employment policy manual or handbook usually does not offer much help for the employee. Typically, the employer includes in the policy manual or handbook a disclaimer conspicuously located among the early passages that declares that the policies or procedures of the employer are mere guidelines and are not to be regarded as contractual obligations of any sort. The disclaimer also usually includes a reservation of the right to amend, suspend, abandon, or terminate any policy or procedure at any time, with or without notice. A well-written disclaimer also generally reconfirms in express terms the “at-will” nature of the employer’s relationship with its employees.

There are circumstances under which an employment policy manual or handbook could provide the basis for a claim against an employer. However, an employee usually would have to show that there is no disclaimer and that the employer’s “agreement” or commitment to be bound by the policies or procedures communicated to its employee(s) was supported by some form of “consideration” or reciprocal promise made by the employee(s) at the same time the policy manual or handbook was published or circulated by the employer. In other cases, it is possible that a promise made by an employer to an employee to abide by the terms expressed in an employment policy manual or handbook can be enforceable for other reasons under the theory of promissory estoppel even where a court would not enforce the manual or handbook against the employer as a binding contractual obligation. Since each case in this area depends on the facts and circumstances, contact us if you would like to set up an appointment to discuss your specific situation.

attorney Is my employer ever bound by promises made to me?

Certainly. But the promises must be enforceable in a court of law in order for you to force the employer to comply with them.

A promise made in the employment setting is enforceable if (1) it is supported by the terms of an express contract (e.g., a written employment agreement or an offer letter spelling out the terms and conditions of employment with enough specificity that the court would not have to guess about what the employer agreed to do), or (2) the fact the promise was made can be proved by evidence other than a written commitment (e.g., how the employer and employee dealt with each other during the course of the employment relationship or how similar circumstances involving similar classes of employees have been handled), or (3) the employer somehow would receive a windfall or other form of “unjust enrichment” if the promise were not enforced (e.g., the employer would keep all of the commissions payable on a sale for itself instead of distributing them), or (4) the promise was made by circumstances under which it would be unjust or “inequitable” for the employer to avoid having to live up to that promise.

This fourth area of the law is called “promissory estoppel.” An employer can be bound by a promise made to an employee where the promise was expressed in clear or specific terms and was made under circumstances where the employer reasonably could expect that the employee would rely on it, the employee in fact did rely on it in changing his or her position in some fashion (e.g., doing something he or she was not required to do or refraining from doing something he or she otherwise might have done), and the employee suffered some adverse consequence, loss, or damages as a result of the employer’s failure to live up to the promise made.

The theory of “promissory estoppel” can be used in a wide variety of circumstances where the “at-will” employment doctrine otherwise would condone an employer’s unilateral decision to modify the terms and conditions of employment or terminate the employment relationship with or without cause and with or without notice. An example might be where an employer and a job applicant specifically discuss the type of employment benefits that will be offered or the fact that no non-compete agreement will be required of the employee if the job is accepted and the employer later changes or eliminates some employment benefit or tries to force its employee to sign a covenant against competition. The law may protect the employee under these circumstances. Since each case in this area depends on individual facts and circumstances, contact us if you would like to set up an appointment to discuss your specific situation and see whether the theory of “promissory estoppel” might help you in dealing with a problem you have with your employee

I don’t have an employment contract and my employer won’t enter into one with me. Are there any other ways around the “at-will” employment doctrine?

Under Ohio law as it currently stands, your only recourse would be to pursue a claim for employment discrimination on the basis of race, color, creed, national origin, sex, religion, disability (handicap) status or age, harassment based on sex, race, religion, or age, or because you are a “whistleblower ” with respect to a violation of federal or state law amounting to a felony or affecting public health and safety, or for retaliation because you reported occupational safety and health issues to appropriate authorities, or because you filed or assisted someone else in filing a claim for worker’s compensation, unemployment compensation, employment discrimination, or any claimed entitlement under an employee benefit plan, or for “wrongful discharge” as the employer’s actions would constitute violations of public policy in the State of Ohio as articulated by federal or state statutes or regulations.

My employer wants to give me the option of resigning instead of being fired. Should I resign? Can I still sue my employer after I resign?

Under Ohio law, a resignation – even if coerced – will pose a significant hurdle to the prospects for success in enforcing of an employee’s rights and in bringing any case he or she might want to bring in the future. The law generally affords no post-termination remedies to an individual as against his or her former employer where the employee has voluntarily resigned his or her position.

When a voluntary resignation takes place, the former employee can recover only if he or she could provide clear proof to the effect that no reasonable person of ordinary sensibilities would have continued to work under the conditions presented by the employer. For example, an employee is not required to continue providing services where his or her employer insists that tasks are performed that will put the employee in harm’s way, or would constitute criminal or otherwise unlawful behavior, or would expose the employee to revocation of a license, or would require the employee to engage in acts of moral turpitude, or would require the employee to expose co-workers, members of the public, business invitees, or the like to personal injury, property damage, or any of the other types of misconduct mentioned above. Where any of these things occurs, the employer is deemed to have “constructively discharged” the employee, meaning that the resignation is treated as if the termination of the employee’s job had been initiated by the employer because of the employer’s conduct or indifference to job conditions that would cause any reasonable person of ordinary sensibilities to resign rather that to continue to subject himself or herself to the risks, embarrassment, humiliation, or personal threats that would come with carrying out the employer’s wishes.

A resignation also will complicate your claim for unemployment compensation. Generally, an employee who quits his or her job is treated as someone who voluntarily left the work force or job market and the state will not pay unemployment benefits to such an individual. An attorney experienced in representing the rights of employees can negotiate terms in a severance or separation agreement that will reserve the right to make an unemployment compensation claim without risking a successful challenge by the employer to the employee’s eligibility for unemployment compensation benefits.

unlawful How do I know if I am the victim of unlawful employment discrimination?

Discrimination and its close cousin, harassment, can take a number of different forms in the workplace. Federal and state laws prohibit discrimination and harassment against individuals on the basis of race, color, creed, national origin, sex (gender), religion, disability (handicap), pregnancy, and age.

Essentially, discrimination in the work setting requires first that the court or administrative agency find that the alleged victim qualifies to bring a discrimination action because he or she is a member of the class of employees intended to be protected by an anti-discrimination law, that he or she was qualified to hold the position held or for which he or she applied, and that he or she suffered some adverse job action supposedly on the basis of one of the categories of discrimination prohibited by law.

The burden of proof then shifts to the employer to show that the employee does not qualify to bring a discrimination action, or that the alleged act of discrimination did not occur or did not have a discriminatory effect, or that there was a legitimate non-discriminatory reason for taking the adverse job action against the employee.

At this point, the burden of proof shifts back to the employee who must present evidence to show that an overt act of discrimination took place based on direct or indirect (circumstantial) evidence of that act, or that a “pattern” or “practice” of condoning similar acts of discrimination in the past had evolved over time, or that the reason for the adverse job action that was identified by the employer either was not supported by the evidence or is a “pretext” (or ruse or excuse or cover-up) for the fact that unlawful employment discrimination was allowed or took place.

You should engage the services of an experienced employee rights attorney to help guide you through the investigation of your situation to determine if you have been victimized by unlawful employment discrimination or harassment.

If you are dissatisfied with conditions at work and your efforts to get your employer to take you seriously should fail, the next step would be either to hire an experienced employment attorney to help you to investigate your claim or to file a charge of discrimination with either the Equal Employment Opportunity Commission (EEOC) or the Ohio Civil Rights Commission (OCRC), or both. Before going straight to the EEOC or OCRC, however, there are at least three considerations you should give to your circumstances.

First, you should know that neither the EEOC nor the OCRC would represent you the same way a private lawyer would. These agencies represent the government, not the individual claimant. So while each agency is equipped to investigate your claim and determine whether there is “probable cause” for believing that you in fact were victimized by an act of employment discrimination, there is no assurance the agency ultimately will take on your case. The number of people who file charges on a weekly basis overwhelms these agencies. Their resources are stretched to the limits of their budgets as they deal not only with employment discrimination cases, but other forms of discrimination such as housing and public accommodation discrimination. As a result, while they are obligated by law to accept every charge of discrimination that is presented to them, the EEOC and OCRC try to sift through the cases and tackle only the ones presenting the most outrageous acts of wrongdoing, or offering the best chance for making an example of an employer, or giving the agency a chance to test an area of the law not yet fully developed through legislative, regulatory, or judicial action, or letting the agency follow up with an employer already under closer scrutiny because it is operating under a consent decree or some other order requiring it to refrain from illegal discrimination based on prior instances of unlawful conduct. Consequently, the EEOC and OCRC frequently close cases for administrative convenience or after the case becomes too old for it to continue on the agency’s docket under regulatory guidelines designed to move cases along to a decision.

Second, the remedies (i.e., what you can get out of the proceedings) are limited in cases brought before the EEOC or OCRC. Generally, each agency can get you your job back with back pay. While this might work for many people, you should be aware that you might be entitled to much more than that if you were to sue your employer in court and win. While the EEOC and OCRC are limited to ordering reinstatement with back pay, an experienced employee rights lawyer can help you recover a money award for damages caused by pain and suffering, emotional distress, mental anguish, embarrassment, humiliation, inconvenience, job hunting expenses incurred in finding a new job, certain consequential losses sustained because of having to dip into your savings or retirement plans, the value of any lost employee benefits and pension rights, restoration of your vacationpay, medical leave entitlements, and holiday pay, and other losses. And while your recovery for some of the non-economic losses is limited under federal law, state law in Ohio provides no limit for the amount you can recover for non-economic losses.

Third, if you file your charge of discrimination with the OCRC, state law prevents you from making a claim in court over the same issues once the OCRC has decided your case. For this reason, if an individual cannot afford to hire a private employee rights lawyer to handle his or her case, I generally recommend that the individual look into filing a charge of discrimination with the EEOC only and specify on the EEOC’s form that no charge is being filed with the OCRC. The EEOC’s form assumes the charging party will want to “dual file” with both agencies for “administrative convenience.” So if you want to preserve your rights to the fullest extent possible under the law, you should consider telling the EEOC that you do not want your case to be “dual filed,” but rather you want it to be filed only with the EEOC.

And if you find yourself having to use the services of the EEOC and/or OCRC because you could not afford an attorney, you should seek the assistance of an experienced employment lawyer if the agency should find in your favor after completing its investigation, but before it puts any more time into trying to resolve the matter by post-investigation conciliation efforts or more formal actions before an administrative law judge or in court. The reason is that you may be giving up significant rights and benefits by allowing the EEOC or OCRC to continue handling your case for you. An experienced employee rights attorney can help you to evaluate your options and make the right decision for your career and the benefit of your family. If you are in Northeast Ohio and already have gone through the investigation process with the EEOC and/or OCRC and would like to have an employee rights attorney help you with understanding your options and map out a strategy best suited to your individual circumstances in light of the agency’s “probable cause” finding, contact us today to schedule an appointment at a time convenient to your schedule.

My boss or a co-worker is harassing me at work. What can I do about it?

We receive many calls each month from people complaining about the “harassment” they are receiving from their bosses or co-workers and wanting to do something about it in court.

Whether such harassment comes from management representatives or co-workers, it remains that under federal and state law, the only forms of harassment that are actionable in court are acts that are directed at an individual because of his or her race, color, sex (gender), religion, or age or because of his or her involvement in unionizing activities or helping members of a union with protecting or enforcing their rights under union contracts .

General unspecific acts of harassment – while offensive, annoying, or downright distracting – unfortunately do not constitute the sort of conduct for which the law will provide a remedy. The only exceptions to this general principle are found in the context of rights guaranteed by a union contract or to government employees by federal or state statutes or regulations or under principles of law prohibiting harassment on the basis of one’s race, color, sex (gender), religion, or age.

Sexual Harassment What types of harassment on the job can I sue for?

If you are being harassed at work because of your race, color, sex (gender), religion, or age, you may have a claim under federal or state law for unlawful harassment in the employment setting. Other general harassment on the job customarily cannot serve as the basis of a lawsuit unless coupled with some other unlawful conduct.

Because sexual harassment and harassment on the basis of one’s race are by far the most litigated forms of harassment, I have decided to include in this FAQ details on only these two types of claims. If you believe you may be the victim of harassment in the work setting on the basis of your color, religion, or age, contact my office for an appointment to discuss your individual circumstances.

Sexual harassment and racial harassment are serious problems. The victimized employee experiences mental anguish, emotional distress, losses of productivity, diminished income, and the pain that comes with having to live with the stigma of being isolated or ignored by co-workers who cannot understand why the victimized employee “couldn’t take a joke” or “wouldn’t play along” or would report the unlawful conduct to the company’s management in the first place.

Sexual harassment is considered to be a form of sex discrimination under both federal law and the law of the State of Ohio. Harassment on the basis of one’s race is considered under federal and state law either to be a form of race discrimination or to be a specific type of unlawful discrimination under statutes tracing their roots back to the end of the Civil War or the Civil Rights Movement of the 1960s.

Racial harassment generally results from the conduct by an employer or any of its management employees that has the purpose or effect of unreasonably interfering with an employee’s performance on the job or creating (or allowing) a work environment that is intimidating, hostile, or offensive to the ordinary sensibilities of an individual of the same race as the victimized employee. The same standards are used in some types of sexual harassment claims.

In addition, sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature where the victimized employee’s submission to such conduct expressly or implicitly becomes a term or condition of employment or the victimized employee’s submitting to or rejecting such conduct becomes a factor used in making employment decisions affecting the employee.

Under federal law, employers are liable for acts of sexual or racial harassment where they know of the conduct and do not stop it, act with reckless disregard about the conduct so as to condone it, or fail to take measures that reasonably would be expected to prevent a recurrence of the offensive conduct. This is why more and more employers are adopting “sensitivity” or “tolerance” training programs or “diversity awareness” seminars and requiring their employees to participate in those initiatives. And it is why employers most concerned about avoiding harassment claims have adopted policies that prohibit harassment of any kind, require the posting of signs about company property to keep the issue in front of their work forces, and provide specific procedures for notifying the employer of the harassment and attempting to resolve the issue.

Under Ohio law, both employers and the offending employees involved can be held liable for acts of sexual or racial harassment. But not all acts of harassment are actionable under the law. For example, unless the harassment was at the hands of the victimized employee’s supervisor and some tangible employment action can be tied to the supervisor’s relationship with that employee, an employer may defend against an employee's claim of harassment by showing that it exercised reasonable care to prevent and correct alleged acts of harassment and that the offending employee unreasonably failed to take advantage of preventive or corrective opportunities or otherwise failed to avoid conduct not expressly or implicitly condoned by the employer.

What is “retaliation” and can I sue for losses I suffer as a result?

In Ohio and under federal law, retaliation can serve as the basis for a claim against an employer that is just as worthy of redress as the discriminatory or unlawful act that preceded it.

“Retaliation” goes well beyond a former employer giving bad references. No employer may take any adverse job action against you, fire you, demote you, refuse to promote you, reassign you, modify your terms of employment, or take any steps not otherwise justified by law if such conduct was related in any way to your having filed a charge of discrimination, a complaint for violation of occupational health or safety laws, a report with authorities with evidence of your employer’s having committed a felony or having engaged in conduct that would tend to compromise public health or safety, or a claim for benefits under an employer-sponsored group benefit plan or for worker’s compensation. Likewise, no employer may retaliate against you for helping anyone else to file a discrimination action, act as a “whistleblower," or file a claim for worker’s compensation benefits or unemployment compensation.

If you feel you have been the victim of retaliation in the work setting, contact my office for an appointment to discuss your individual circumstances.

What constitutes “wrongful discharge” or “wrongful termination” in Ohio?

Many of our clients are outraged by the way in which their employers callously disregard their employees in dismissing them without cause because Ohio's "at-will" employment doctrine allows them to do just that.

A select number of our clients are able to take advantage of the claim of "wrongful discharge" or “wrongful termination.” In Ohio, an employer who exercises rights under the "employment-at-will" doctrine nevertheless can be held liable for a "wrongful discharge" if the employer's conduct in terminating its "at-will" employee effectively amounts to a violation of some federal or state law or regulation spelling out an important public policy in this state.

The easiest way I can explain this to my clients is to think about “wrongful discharge” cases in terms of answering this question: In terminating the employee, did the employer try to get away with something the law otherwise prohibits or did the employer try to avoid doing something the law otherwise requires?

The classic example of a valid claim for “wrongful discharge” is the case of the divorced employee who was ordered to pay child support and to have his wages garnished to cover that obligation. When the garnishment order was received, the employer decided to fire the “at-will” employee instead of being inconvenienced by having to garnish wages and pay them over to the court and run the risk that the employer would have to cover any shortage if a mistake was made in calculating the exact amount to be taken or in administering the garnishment process for the benefit of the employee’s ex-spouse and children. The Ohio Supreme Court ruled that such an “at-will” employee cannot be fired under these circumstances because the public's interest in an efficient and effective child support system cannot be undermined by the act of an employer in firing an “at-will” employee who has to have his (or her) wages garnished as the court's way of making sure the child support payments were made.

An experienced employee rights attorney can evaluate your circumstances against this principle of Ohio law and let you know whether your claim might qualify for protection under Ohio’s “wrongful discharge” or “wrongful termination” doctrine.

What are the chances I could get a good settlement instead of having to go to court?

The best time to try to settle an employment-related dispute is when your employer is still worried about whether or not you will sue. Getting your employment lawyer involved at the earliest possible time may substantially improve your chances of successfully negotiating a settlement of your claim.

Once you assert your claim in some formal manner (lawsuit, administrative complaint, etc.), management will hand off the responsibility for defending your case to the employer’s lawyers. Before then, management has to worry about all the distractions that may come with having to defend your claim, the burden this will have on meeting other deadlines and attending to the day-to-day business of the company, the inconvenience of having to deal with your claim instead of spending more time trying to make more sales, the expense of the defense and the impact those costs will have on the company’s budget and “bottom line,” and the uncertainty of letting a judge or jury decide a case that otherwise could be settled on negotiated terms satisfactory to the company.

An experienced employee rights attorney can help you understand your rights and appreciate whether your claim is more valuable that what your employer is offering to settle it. In addition, certain important protections should be included in any agreement to settle an employment-related dispute or claim. If you are in the Cleveland or Akron areas and would like to have an employment attorney help you with understanding your options and map out a settlement strategy best suited to your individual circumstances, contact us today to schedule an appointment at a time convenient to your schedule.

What rights do I have as an employee covered by a union contract?

A union contract offers significant benefits for employees covered by its terms. Through the process of collective bargaining, a union generally can negotiate terms for its members that would be more favorable than those the individual members likely would be able to negotiate for themselves in one-on-one sessions with the employer.

When a dispute arises in a work setting governed by a union contract, the best route for an employee to take would be to contact the union representative or steward. Generally, the prospects for success in resolving employment-related disputes are better when claims are made in the context of a grievance filed under a union contract than by filing a lawsuit.

Federal law prohibits an employee from resorting to court to resolve a dispute that could have been brought as a grievance under a union contract unless (1) the employee first exhausts every step in the dispute resolution process as outlined in the union contract and (2) the employer and the union have acted fraudulently, in bad faith, or in such a manner as to discriminate against the employee who could not get a resolution of his or her grievance through the union contract’s dispute resolution process. So an employee always should take advantage of the grievance process outlined in his or her union contract before initiating any other action seeking redress.

Many members of unions call my office because they are dissatisfied with the level of attention they are getting from the union or have lost confidence in the ability of the union representative or steward to look after their interests competently or effectively. An experienced employee rights attorney can help in the grievance process.  Union officials sometimes welcome such assistance.  Other times, union officials rely on the lawyer chosen by the employee simply because the union lacks the resources to hire an attorney on its own. In rare circumstances, the union has so badly botched the grievance process that the member harmed by such misconduct can sue his or her union for breach of its duty of fair representation.

Contact us if you are in either of these situations and you should wish to explore your grievance in greater detail and determine whether a more comprehensive investigation should be launched or whether more could be done – either working with your union or not – to improve your chances of success, call my office to schedule an appointment.

clock What are “civil service” laws and can they help me?

The “civil service” includes a broad range of employees of local, county, state, and federal government entities. In Ohio, the “civil service” also includes a number of employees of colleges and universities operated by the state.

Laws are on the books to protect “civil service” employees against unfair or unreasonable employment practices that they otherwise might face because they usually work in offices managed by politicians who sometimes lose their own jobs at election time. Workers in the “civil service” are protected by laws that guarantee merit selection in the hiring process and prevent the winner of an election from harassing individuals on his or her predecessor’s staff or firing them just so the politician can give jobs to his or her own friends or supporters.

The modern era of “civil service” protection really began with the administration of Chester Arthur, the 21st President of the United States. President Arthur took office when President James Garfield, an Ohioan, was assassinated by someone disappointed by his failure to land a job in the federal government after Garfield was elected. Mostly in reaction to that tragedy, so-called “civil service” laws were passed at all levels of government to promote merit selection in the hiring process and to guard against arbitrary dismissal or discipline of those holding positions in public service.

Not all government workers are protected under “civil service” laws. The law recognizes that election winners must have some discretion when filling certain high-level and policy-making positions in government. So when it comes to such appointments, “civil service” laws generally exempt management from the obligation to provide the same merit selection guarantees and job security extended to middle management personnel and rank-and-file workers. Moreover, government employees working under a union contract typically enjoy job security benefits only through the terms of the contract negotiated on their behalf by their union leaders, though some municipalities in Ohio allow their unionized work force the option of electing to pursue grievances against management either under the terms of their union contract or under the city’s “civil service” laws, but not both.

Workers in the “civil service” of the State of Ohio are protected by Chapter 124 of the Ohio Revised Code and regulations found in Part 124 of the Ohio Administrative Code. Local and county workers in Ohio are protected either by other state laws and regulations or by local rules adopted by the legislative authority responsible for the government entity for which the “civil service” employee works.

If a “civil service” worker thinks his or her rights have been violated, recourse is available before administrative agencies and in the courts. State employees, including employees of state colleges and universities, and employees of counties and municipalities not organized under the charter form of government, can take an appeal from most adverse job actions to the State Personnel Board of Review in Columbus. All other “civil service” workers must pursue their appeals before local civil service commissions or other administrative agencies specifically set up to handle such actions. An appeal should be treated as if it were a lawsuit as the parties must present evidence through witnesses, can be required to prepare briefs and other written materials in support of their positions, can subpoena witnesses and documents, and frequently engage in pre-hearing motion practice as well as discovery in the form of depositions and written discovery requests. The agency responsible for handling the appeal will consider only the evidence actually presented in the record of the proceedings and will not make a decision based on extraneous evidence. So while a “civil service” employee can handle his or her own appeal, it is generally a good idea to consult a civil service attorney who practices regularly in this area of the law.

Time limits for bringing a “civil service” case can vary from municipality to municipality, but a “civil service” employee allowed to invoke the jurisdiction of the State Personnel Board of Review customarily must initiate his or her appeal in writing and deliver that appeal to the board and the agency from which the appeal is taken within ten days of the date the final decision of that agency. Failure to file an appeal in the proper manner and with all appropriate agencies will result in losing the right to appeal.

Since the right to continued employment in the public sector is considered a property right entitled to protection under the Due Process Clause of the United States Constitution, an employer cannot take an adverse job action against a “civil service” employee unless it first outlines the claims or charges against the employee with enough detail so the employee can understand them and then gives the employee notice of a meeting specifically designed to give the employee a chance to explain his or her actions or to challenge the validity of the claims or charges asserted by management. Any evidence or arguments advanced by the employee during this meeting must be taken into account by management before rendering a final decision in writing and making sure that decision gets into the hands of the employee or his or her attorney. An employee has the right to engage a civil service lawyer to assist in the meeting.

If the “civil service” employee does not like the decision made in his or her case, Ohio law allows just 30 days to take an appeal of that final decision to the Court of Common Pleas having jurisdiction over the “civil service” appeal. This process is fairly technical and the failure to perfect the appeal in the manner specifically provided both by statutes and by court decisions will result in the dismissal of the appeal to court.

In reviewing a “civil service” appeal, a court will review only the record of the “civil service” proceedings and will overturn the decision only if the agency improperly interpreted or applied the law, acted arbitrarily in rendering its decision, violated the rights of one of the parties in conducting the appeal proceedings, or failed to base its decision on “substantial, reliable, and probative evidence” actually appearing in the record.  Only in rare instances will a court allow the employee to present new evidence in the appeal when such evidence could have been presented to the administrative agency in the first instance.

Do“probationary” employees have rights during their period of probation?

If you still are in your probationary period at the time your employment is terminated, the law in Ohio is not very helpful to your situation.

In Ohio, employees serving a probationary period largely cannot expect to enjoy the same sorts of rights as employees who have completed their probationary periods. This is especially so for individuals who are covered by union contracts. In essence, the rights under a union contract for employees serving during a probationary period are rather limited. Still, you should consult with the union representatives to determine whether you would have grounds for filing a grievance against your former employer.

For employees not covered by union contracts, those serving probationary periods under the law of the State of Ohio largely are treated as if they were at-will employees, meaning that their services can be terminated and the terms and conditions of employment can be modified at any time, with or without cause, and with or without notice.

Probationary employees are not without any rights, regardless of whether they are covered by union contracts or not. If you are a probationary employee, you would still have recourse to pursue a claim for employment discrimination on the basis of race, color, creed, national origin, sex, religion, handicapped status or age, or because you “blew the whistle” on a violation of federal or state law amounting to a felony or affecting public health and safety, or because you are the victim of retaliation for having reported occupational safety and health issues to appropriate authorities, or because you filed or assisted someone else in filing a claim for worker’s compensation, unemployment compensation, employment discrimination, or any claimed entitlement under an employee benefit plan, or because your privacy rights have been violated, or for any reason that would support a claim of “wrongful discharge ” for the employer’s having fired you in a way that also would constitute a violation of public policy in the State of Ohio as framed by federal or state statutes or regulations.

clock What constitutes “trade secrets” and what are my duties and my employer’s rights to protect them?

A “trade secret” is any information that (1) derives independent economic value – whether actual or potential – from not being generally known to and not being readily ascertainable by persons outside of the staff of the employer’s business except by means that are not improper and (2) is the subject of efforts made by the employer that are reasonable under the circumstances to maintain the secrecy of such information. The only proper means for outsiders to obtain an employer’s “trade secret” would be a disclosure made with the express or implied consent of the employer, e.g., by license, contract, or course of dealing or performance under a commercial transaction to which the employer was a party.

Unauthorized disclosure of a “trade secret” subjects the violator to liability for “misappropriation” of the “trade secret.” Not all disclosures rise to the level of “misappropriation,” but enough of them do so as to merit your careful attention to the law in the event you are contemplating the act of using the “trade secret” of a current or former employer for yourself or for the benefit of any third party. The law subjects the violator to an award of up to three or four times the actual loss suffered by the employer for the “misappropriation” of the “trade secret” as well as an injunction to prevent both the further disclosure of the “trade secret” as well as anyone’s continued use of the “trade secret” for commercial gain. In addition, the prevailing party in any “misappropriation” action is liable for an award to reimburse reasonable attorney fees incurred in prosecuting or defending any action where the “misappropriation” was made in bad faith, or a motion to terminate proceedings for an injunction is made or resisted in bad faith, or the “misappropriation” is found to have been “willful and malicious.”

Any action for “misappropriation” of a “trade secret” may be brought as late as 4 years after the “misappropriation” was discovered or by the exercise of reasonable diligence should have been discovered, but a “continuing misappropriation” is treated as a single claim, meaning that the 4-year limitation period will not begin until the act of “misappropriation” is discontinued.

Employers routinely ask key executives, senior-level managers, sales, marketing, financial, and technical personnel and engineers to sign confidentiality agreements not only to reconfirm the employee’s obligation to protect the employer’s rights in any “trade secret,” but also to impose additional obligations that go beyond the limits of the law in terms of protecting the company’s proprietary information. Thus, a confidentiality agreement generally will define “confidential information” more broadly to include more than what the law already defines and safeguards as a “trade secret.”

Before signing a confidentiality agreement or considering the disclosure or use of any information that might remotely be considered to be a “trade secret,” you should consult an experienced employment lawyer to help you. If you are in the Cleveland or Akron areas and would like to have an employment attorney help you with understanding your duties and options in this area of the law given your individual circumstances, contact us today to schedule an appointment at a time convenient to your schedule.

I was forced to sign a non-compete agreement. Am I really bound?

In Ohio, non-compete agreements (also called “non-competition agreements” and “covenants against competition”) are binding and legally enforceable to the extent reasonably necessary to protect the legitimate business and competitive interests of the employer.

If a non-compete term is challenged in court, it is possible to get the judge to declare that it either does not apply in a particular situation or must be modified or “equitably reformed” so it will be more in line with the specific business and competitive interests the employer seeks to protect. Often times, courts will find that a non-competition terms is too broad and will modify or reform the geographic scope or duration of the non-compete agreement or covenant. Courts generally will not alter any definition of what constitutes “competition” unless the definition in the non-compete agreement or covenant itself is too broad, vague, or ambiguous or it would be unconscionable or unreasonably restrictive on the former employee’s ability to make a living to apply the literal definition of “competition” that is included in the non-compete agreement or covenant.

I frequently receive calls from individuals when it is too late to address non-compete terms. The best time to consult an attorney over a non-compete agreement or covenant is before you sign it. Reasonable negotiation over such a term is possible, particularly for executives, senior-level managers, sales and marketing personnel, finance executives, and technical personnel and engineers. Usually, this negotiation leads to agreement over terms governing access, use, and ownership of trade secrets, inventions, and intellectual property, and the obligations to maintain the confidentiality of information the employer considers the most sensitive.

I also receive several calls each year from outraged executives and senior-level managers who want to know why their current or former employers believe they have the right to enforce a non-compete agreement or covenant even thought the employer never mentioned a non-compete term during pre-employment negotiations or in the offer letter.

It used to be in Ohio that a non-competition agreement or covenant against competition could not be enforced unless it was supported by a reciprocal promise made by the employer. So employers used to have to match the non-compete term with something of value given to the employee (e.g., additional compensation, a raise, a bonus, eligibility for an incentive compensation plan, additional vacation leave, etc.) unless the non-compete term was included in the original employment offer.

No more! Thanks to the ultra-conservative Republican-dominated Ohio state government – where Republicans have had a lock on all three branches of government for more than a decade – this has all changed. Apparently in its zeal to help Ohio become a more “business-friendly” state, the Ohio Supreme Court has held that when an employment relationship is “at-will ,” as most employment relationships in this state are, each day offers a new opportunity for either party to terminate the relationship or for the employer to propose a modification of the relationship, with or without cause and with or without notice. The Ohio Supreme Court reasons that the offer of “continued employment” is all the value the employer must give in suddenly insisting on the execution of a non-compete agreement or covenant where none existed before!

So even if you were enticed to relocate yourself and your family to embark on a new career or job by terms that did not originally call for you to sign a non-compete agreement or covenant, be aware that in Republican-dominated “business-friendly” Ohio, you and your family can have your lives turned upside down by an employer who decides to place onerous terms in front of you without notice or negotiation and simply insists on a take-it-or-leave-it basis that you sign it or exercise your own right as an “at-will” employee to quit your job on the spot, probably at the risk of becoming ineligible for unemployment compensation benefits. The moral of this story is that you should consult an employee rights lawyer as soon as your employer first brings up the idea of having you sing a non-compete agreement.  If you wait until you want to leave your job for a better offer from a competitor, it might be too late.  Contact us if you need an employment attorney in the Cleveland or Akron areas to help you with a non-competition agreement.

That is the sad reality of employee rights law in Ohio under Republican leadership. But enough “soap box” time from me on this subject!

My former employer is giving me a bad reference. Is there anything I can do about that?

Defamation is an intentional act committed for the purpose of injuring the reputation of another. It requires various elements, the most important of which are that a statement made about the other person must have been false when made and must have been communicated in some fashion with either an understanding that it would be interpreted by the listener or reader in a way that would hold the subject of the communication in disrepute or in a way that manifests a conscious or reckless disregard for whether the statement would have that effect. The proof on each of these elements under Ohio law must be based on “clear and convincing” evidence.

In the employment setting, a Republican-dominated State Legislature and Republican Party control of both the Governor’s Mansion and the Ohio Supreme Court for more than a decade have allowed the adoption of laws that head off a lot of what otherwise might be done regarding a potential defamation claim against one's former employer.  Not long ago, the State Legislature in Ohio passes a bill that essentially immunizes a worker's former employer against claims of defamation asserted with respect to an evaluation of an employee's performance during a reference check.  Thanks to this law passed by the Republicans, you cannot sue your former employer or any of its management employees personally unless you would be able to prove by "clear and convincing" evidence that our former employer either knew that the information shared with another about you was false or acted with conscious disregard for the truth of such information and you further can show that your former employer shared this false information for the specific purpose of maligning your reputation.  The law passed by the Republicans in the State Legislature effectively has immunized those who engage in so-called "good faith" efforts to share work histories with prospective employers.

The law was far different a decade ago when the Democrats were more interested in protecting families and the interests of the men and women of this state who have to work for someone else for a living than the Republicans who pretty much look out only for the interests of the Chamber of Commerce and its members in their zeal to make Ohio a “business-friendly” state.

So much for the notion of looking out for “family values” as practiced by Republicans in this state!

And so much for the “soap box” portion of my website!

Does the law protect the “whistleblower”?

There are significant protections for individuals who turn their employers in for violating laws in ways that amount to felonies or acting in ways that jeopardize the public’s health or safety. The law also guards against adverse job action being taken after public employees point out instances of budget abuse or the failure of management to abide by laws or regulations governing the administration of public services. And anyone reporting a violation of occupational health and safety regulations to the Occupational Safety and Health Administration (OSHA) also has additional protections under federal law.

But not all “whistleblowers” can take advantage of those protections under all circumstances. Laws protecting the “whistleblower” spell out precisely who is covered by the protections afforded under the statute, the steps the “whistleblower” first must have taken to secure management’s cooperation in recognizing and solving the problem, and the precise steps the “whistleblower” then must take – and the time table within which those additional steps must be taken – to preserve his or her rights to protection under the “whistleblower” law.

If an employer is able to show that its employee either did not have a good faith basis for approaching authorities, did not make a good faith effort to determine the accuracy of the information reported to authorities, or did not otherwise follow the steps that would entitle the employee to “whistleblower” protection, the employer can avoid liability under the “whistleblower” law.

The time for laying the foundation for full protection as an employee with “whistleblower” status under the law is before you take any steps to report the information you have to someone outside of the company. If you are in that position and wonder whether the “whistleblower” law might help you, contact my office for an appointment to discuss your individual circumstances.

I was hurt on the job or my doctor tells me that the disease I have was caused by my occupation. Should I file a workers’ compensation claim?

Our office as a general rule does not handle worker’s compensation claims. Our focus in the worker’s compensation area is on seeking remedies when an employer retaliates against an employee either for filing a worker’s compensation claim or helping someone else with their own worker’s compensation claim.

If your situation pertains to the rights of injured workers and victims of occupational diseases to compensation under Ohio law, call my office and I can help you find a lawyer in your area who is an experienced and very capable advocate for the rights of those injured in the work setting.

clock Under what circumstances can I collect unemployment compensation benefits?

Assuming that you qualify for benefits in the first place, Ohio law presumes you are entitled to collect unemployment compensation unless you are disqualified for one of the reasons spelled out in Section 4141.29 of the Ohio Revised Code.

Generally, you are eligible for unemployment compensation benefits in the State of Ohio if you worked for an Ohio-based employer for at least 26 weeks in the 78 weeks leading to the loss of your job and you otherwise remain eligible for benefits under other technical requirements of the law and file a complete application for benefits in the manner prescribed by Section 4141.28 of the Ohio Revised Code.

You will receive unemployment compensation benefits unless any of the following applies to you: (1) Your unemployment resulted from a labor dispute unless the dispute resulted in an employer lock-out, involves a location other than the one at which the dispute exists, or your employer is not involved in the dispute that forced the employer’s business to cease operations; (2) you were laid off for misconduct in connection with your work; (3) you quit your job without just cause or were discharged for just cause in connection with your work; (4) you refused without good cause to accept an offer of suitable work when made by an employer or refused or failed to investigate a referral to suitable work when directed to do so by any state’s employment office unless your refusal was within your rights under a union contract or you were attending a qualifying vocational training course at the time the referral was made to you; (5) your unemployment resulted from your having been sent to jail; or (6) you became unemployed due to your having committed “substantive theft,” fraud, or deceitful acts in connection with any base period work.

If you do not fall into one of the six categories listed above, you are "not disqualified"  from getting unemployment compensation benefits. Frequently, prospective clients will call my office and want to sue their former employers for wrongful discharge or wrongful termination based on the letter they receive from state officials confirming the approval of their application for benefits because they were not “discharged for just cause” in connection with their work. Prospective clients routinely misinterpret this phrase to mean that a state agency has found that they were terminated “without just cause” and a claim for wrongful discharge or wrongful termination should be an easy one to bring and win. I would like $50.00 for every time I have heard this from a prospective client since opening my own law office in 1989 . . . I would be a wealthy man! If you receive a letter approving your claim for unemployment compensation benefits, please recognize that the language used by the agency in writing the letter is lifted directly from the statute that establishes the grounds for disqualification. And if you are "not disqualified," you receive benefits. So a finding that you were not “discharged for just cause” simply means that – only for purposes of determining your qualifications to receive unemployment compensation benefits – you will not be disqualified from receiving such benefits.

Any party who disagrees with the administrative decision allowing or disallowing a claim for unemployment benefits has the right to take a series of appeals from that decision.  An employee rights lawyer can help you with the evidentiary hearing that will be conducted on your appeal.  So if you are faced with the prospects of an appeal, you should consider contacting us today to see if we can handle your case for you or at least can help you through the process of representing yourself and knowing what evidence you will need to present and what arguments you will need to make in order to improve your chances of success.

You may very well have a claim for wrongful discharge or wrongful termination, employment discrimination, harassment,whistleblowing”, retaliation, or unpaid wages, or a grievance that could be filed under your union contract. Contact us today to schedule an appointment at a time convenient to your schedule if you think you may have any of these other types of claims for post-termination remedies.

My employer has not paid my wages or other compensation. What are my options?

At the root of any employment relationship is a contract – whether in writing or not – that dictates the terms and conditions of the parties’ agreement respecting terms and conditions of employment and compensation.

When an employer goes bankrupt, closes up shop and leaves town, or just simply stops meeting payroll obligations, an employee’s recourse is to terminate the employment relationship and sue the employer for “damages” equal to the amount of unpaid wages. Qualifying amounts of “wages” and “fringe benefits” not paid within 30 days of the last day of any given pay period are subject to an additional sum for so-called “liquidated damages” under Ohio law equal to six percent (6%) of the unpaid wages or fringe benefits.

Unfortunately, the problem often times lies in the fact that the employer is “judgment-proof” (i.e., does not have sufficient assets to satisfy a judgment rendered against the employer) or is not able to be located. Another problem often arises when the employee realizes that while the individual who is the “owner” of the business is more than capable of covering the payroll obligations of the business, that “owner” is not legally liable for the unpaid wages since the employment contract was between the unpaid employee and the corporation set up by the “owner” and the “owner” has not done or failed to do things under Ohio law that would subject himself or herself to personal liability for the corporate obligations.

Besides quitting, your recourse would be to pursue a claim against your former employer in court and filing an unemployment compensation claim. (This is a situation that likely would qualify for treatment as a “constructive discharge," so you would not lose your right to receive unemployment compensation benefits just because you quit.)

If your unpaid wages and “liquidated damages” do not exceed $3,000.00, you can file a claim in the Small Claims Division of the municipal court having jurisdiction over the community in which your wages were earned. Otherwise, you would have to file your case in either the General Division of the same municipal court (if your claim does not exceed $15,000.00) or the Court of Common Pleas of the county in which your wages were earned.

If your employer seeks protection under the Bankruptcy Code, you would have a “priority” claim against the employer’s bankrupt estate in the amount of your unpaid wages, up to $3,000.00, and you would have an “unsecured” claim against that bankrupt estate for any amount in excess of that amount. Of course, your claim will be satisfied only to the extent there are sufficient assets left after administrative expenses and other claims with “higher” priority are satisfied. And any “unsecured” portion of your claim would be paid only if all priority and “secured” creditors’ claims are first satisfied.

What are my privacy rights as an employee?

Laws exist to protect an employee’s right to privacy.  An employer generally may not disclose information to co-workers or anyone outside of the company to the extent such information is acquired only because of the employment relationship and it would be offensive to an ordinary and reasonable person unless the information would be of reasonable concern to the public.  Thus, an employer could disclose information suggesting that one of its employees may be involved in some sort of criminal activity or may be planning to do harm to someone’s welfare or property.  But an employer usually cannot disclose an employee’s Social Security number or what it has learned about an employee’s problems with alcoholism or about an employee’s genetics, investments, health issues, or other similar matters generally accepted as being private in nature.

Likewise, an employee generally is free from unreasonable searches in the areas of the workplace in which a “reasonable expectation of privacy” may exist.  For example, employees usually can expect that their employers cannot insist on searching a purse, handbag, or wallet, or their lockers where they are allowed to use their own locks to secure their belongings, or their body cavities or fluids (except in connection with a drug-testing policy that complies with the law).
Congress passed the Health Information Portability and Accountability Act (HIPAA) to safeguard an employee’s medical information by prohibiting an employer from disclosing confidential medical information it receives concerning its employees.

When it comes to regulating telephone use and employee access to the Internet and company computers, employees should know that employers in Ohio generally have the privilege of monitoring such use.  This would include allowing employers to screen and read e-mail, listen to Voice Mail messages, and monitoring telephone calls under certain circumstances, particularly for the purposes of preventing employee theft or monitoring an employee’s performance.

Criminal background checks generally involve a review of public records and such activity by an employer usually would not constitute an unreasonable invasion of the privacy rights of an employee or a job applicant.

On the other hand, an employer cannot conduct a credit check on an employee or job applicant without first notifying the employee (in the manner prescribed by law) and receiving written permission to do so.  Moreover, it would be unlawful for an employer to use the results of a credit check against an employee without giving the employee a copy of the report and offering an opportunity for the employee to challenge the results of the report or the author of that report.

Another question that frequently comes up in my practice is whether an employee may be compelled – under threat of job loss – to submit to a lie detector test (polygraph) and an employer cannot retaliate against an employee or job applicant for refusing to submit to such a test.  However, an employee lawfully can be asked to submit to a polygraph to the extent he or she is involved in a “workplace incident” (or is suspected on reasonable grounds of being involved) where the employer’s interests were adversely affected by that “workplace incident.”  In addition, the law exempts certain types of employers from the ban on requiring employees and job applicants to submit to lie detector tests (e.g., security personnel, jobs associated with controlled substances, etc.).

What are an employer’s wage-and-hour obligations under federal and state law?

Wage and hour standards for employees are established by the federal Fair Labor Standards Act (FLSA) and a state law covering most smaller employers in the State of Ohio that are not otherwise subject to the federal statute.  Federal law fixes the national minimum wage and establishes as a matter of national policy that men and women must receive "equal pay for equal work."  The law also forbids the employment of children under the age of 14, sets limits on the length of time children between the ages of 14 and 16, and the duties children may perform.
Federal and state laws on wages also set minimum standards for employees working overtime.  Employees who work more than 40 hours in a seven-day workweek must be paid “time-and-a-half” for each hour (or fraction) worked during that period in excess of 40 hours.  Merely working over 8 hours in a day or more than five days in a week or on a weekend or a holiday does not trigger an employer’s liability for overtime compensation.

Not all employees are eligible for overtime compensation.  Hospitals and care centers may calculate overtime on a 14-day basis instead of the seven-day work week standard applying to other workers, meaning that overtime would be paid to such workers only to the extent they worked more than 80 hours during that 14-day period.  The law also gives public employers the option of allowing their employees to be credited with “compensatory time” in lieu of paying overtime.

Certain management employees also are exempt from wage standards under federal and state law.  An employer is not required to pay overtime compensation to a management employee who is paid at least $455.00 per week as a set salary not tied to a minimum number of hours worked will be ineligible for overtime compensation is his or her work is directly related to the management or business operations of the employer, is in the computer field, or is employed in sales away from the employer’s place of business.  This exemption also applies to employees holding jobs requiring a specific license or specialized professional training or requiring artistic or creative duties or responsibilities.  A special exemption applies to any hourly computer employee who is paid at the rate of at least $27.63 an hour.

The overtime regulations were substantially changed in 2004.  If you were previously entitled to overtime pay, you should consider seeking legal advice concerning your continued eligibility for premium pay.

If your employer has failed to meet its minimum wage obligations to you, contact us to determine if you have a valid claim and can seek an award of double the amount due, plus reimbursement of your attorney fees.  Generally, awards are limited to the past two or three years of unpaid wages.

Can I be liable for injuries or property damage I cause while acting within the scope of my job duties?

Generally, an employee is not directly responsible to third parties for acts of negligence committed within the scope of his or her employment. This does not mean, however, that the employer or the employer’s insurance company might not want to pursue the employee, in subrogation, or otherwise, to recover any losses the employer or its insurance company have realized as a result of having to adjust the claim of the person victimized by the act of negligence. An experienced employment attorney can help you to understand and manage your risks in this area of the law.

There are other ways an employee could become liable for acts committed within the scope of his or her duties on the job. Aside from claims of defamation, an employee can be held liable personally under Ohio law for any act committed without the express or implied authorization of his or her employer, or resulting in discrimination in the employment setting, or constituting fraud or any other intentional misconduct, or exposing the employee to possible criminal liability, or having the effect of misleading or defrauding the government or obstructing justice.  Contact us if you believe you may have one of these types of claims that might expose an employer to personal liability for committing a wrongful act against you or your interests.

Are there time limits for bringing claims? What is the “statute of limitations”?

Potential civil actions against others must be commenced within certain time frames carved out by the state legislature or Congress by statute . . . hence the term “statute of limitations.” Claims not filed before the “statute of limitations” runs out are lost forever.

The limitation period generally begins on the date the claimant knew or should have known facts that he or she reasonably could have determined to serve as the basis for a claim. We say that this is the date on which the claim “accrued.” If a civil action is commenced after the last of the applicable limitation periods expires, no court has jurisdiction (i.e., judicial power) to hear the claim.

In Ohio, statutes of limitations run from as little as 30 days for some sorts of civil proceedings to as long as 15 or more years. Moreover, claims brought under federal laws may have their own limitation periods or they may borrow the limitation periods fixed under state laws. An experienced employment lawyer can help you to identify all the limitation periods that apply in your circumstances and make sure you do not lose your claim by waiting to long to assert it.

Special care must be taken in respect of employment discrimination claims. Most claims under state law must be asserted within 180 days of the date the claim “accrued” if initiated with the Ohio Civil Rights Commission (OCRC). Most claims under federal law must be asserted within 300 days of the date the claim “accrued” if initiated with the Equal Employment Opportunity Commission (EEOC). Sexual harassment claims brought under federal law may have to be asserted within 120 days of the date the claim “accrued.”

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Office Location

Law Offices of S. David Worhatch
Ohio Employment Lawyer and Succession & Estate Planning Attorney
4920 Darrow Road
Stow, OH 44224
(330) 650-6000 - Akron / Kent
(330) 656-2300 - Cleveland / Cleveland Suburbs
(330) 650-2390 - Fax