Employment Status & Unions

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. The rights under a union contract for employees serving during a probationary period are rather limited. You still 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 or 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 have recourse to pursue a claim for employment discrimination:

  • On the basis of race, color, creed, national origin, sex, religion, handicapped status, or age

  • Because you “blew the whistle” on a violation of federal or state law amounting to a felony or affecting public health and safety

  • Because you are the victim of retaliation for having reported occupational safety and health issues to appropriate authorities

  • 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

  • Because your privacy rights have been violated

  • For any reason that would support a claim of “wrongful discharge ” for the employer has 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

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

  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 should always take advantage of the grievance process outlined in his or her union contract before initiating any other action seeking redress.

Many union members call my office because they are dissatisfied with the level of attention they receive 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 wish to explore your grievance in greater detail to determine whether a more comprehensive investigation should be launched or whether more could be done. This could be either working with your union or not. To improve your chances of success, call our office to schedule an appointment.

Are There Special Rules for Public Sector Employees in Unions?

Public 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. However, some municipalities in Ohio allow their unionized workforce the option of electing to pursue grievances against management under the terms of their union contract or under the city’s civil service laws, but not both. Consult with an experienced “civil service” attorney for more details and for help in deciding whether to invoke the jurisdiction of a civil service commission.

Public sector employees in both federal and non-federal jobs are also protected by laws guarding against unfair labor practices. Federal employees can lodge claims with the National Labor Relations Board and non-federal employees in Ohio can bring claims with the State Employment Relations Board. There are strict time limits for bringing such claims, so check with an employee rights lawyer as soon as you think your employer and/or your union may have violated rights to fair treatment and fair representation guaranteed by law.

For federal employees, the Merit System Protection Board serves the role that would be played by a civil service commission for non-union local government employees working for municipalities and townships in Ohio that have created such commissions or the State Personnel Board of Review that is available to all other non-union government workers in Ohio. The deadline for taking an appeal to any of these agencies varies, but is always rather short, so do not delay if you think you may have grounds for an appeal from action you regard as a violation of your civil service rights.

Public sector employees holding non-federal jobs under union contracts have one additional benefit that no other public sector or private sector employee enjoys … the right to tell his or her union that its help in prosecuting or administering a grievance or arbitration process is not required because the employee will go it alone or with the help of his or her own employee rights attorney.

Section 4117.03(A)(5) of the Ohio Revised Code extends this right to any such employee, but only if he or she (1) exercises such right in a timely fashion and (2) does not act to exclude the union in the process of adjusting the employee’s grievance. One appellate court in Ohio has ruled that an employee gives up this right if he or she relies on the union to represent him or her at any stage of the grievance adjustment process, so you should act quickly to reserve your rights under this statute if you feel your union is not looking after your interests properly or effectively.

In other words, Ohio law recognizes that a public sector employee’s property interest in continued public sector employment is so valuable that he or she should not be forced to continue relying on a union that the employee believes is ill-equipped to represent his or her interests effectively, or has lost interest in the case, or does not have the funding or other resources needed to take on the case all the way through arbitration, if necessary, or has assigned someone who the employee does not trust to represent him or her in prosecuting the grievance or that representative is perceived to have a personal ax to grind (e.g., the employee actively opposed the union president at the last union leadership election).

If you are a state or local government employee covered by a union contract and suspect you may want to proceed with the adjustment of your grievance without the intervention of your union, you will need to make that decision at the earliest stages of the grievance process.

This is a very valuable right for public sector employees not employed by the federal government, but this right can be lost or compromised if not asserted in a timely fashion. If you are dissatisfied with your public sector union, you should act promptly to seek the help of an experienced employee rights attorney to make sure your rights are fully protected.

What Does “At-Will” Employment Mean to Me?

Unless you have your own written employment contract, 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.

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.

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—in good economic times and especially in bad economic times.

Would Having an Employment Contract Help Avoid “At-Will” Employment Doctrine?

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 “key” employees in an organization generally can persuade their employers to enter into individual employment contracts to protect their specific interests.

I have years of experience in 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 they hire attorneys to attend to all the details. Why shouldn’t other employees have the same opportunities to protect themselves and those 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. The employer often will draft an 8-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.

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.

Are There Other Ways Around the “At-Will” Employment Doctrine without An Employment Contract?

Under Ohio law, your only recourse would be to pursue a claim for employment discrimination as an employer’s actions would constitute violations of public policy in the State of Ohio as articulated by federal or state statutes or regulations.