Do you know? Guns at work

Do you know? While the 2nd Amendment famously guarantees the  right to bear arms, Ohio law protects the right of employers to prohibit weapons of any kind from entering the workplace.

Ohio Revised Code section 2923.126(C)(1) provides:

Nothing in this section shall negate or restrict a rule, policy, or practice of a private employer that is not a private college, university, or other institution of higher education concerning or prohibiting the presence of firearms on the private employer’s premises or property, including motor vehicles owned by the private employer.

In Plona v. UPS (3/6/09), the Sixth Circuit recently confirmed the right of an employer to terminate an employee for violating a no-weapons policy. In that case, UPS fired Plona for violating its policy against possessing firearms on its premises after he was found with a pistol in his car. Plona claimed that the termination violated Ohio’s public policy in favor of the right to bear arms. The Court correctly disagreed:

Although the Ohio Constitution provides a general right to bear arms, the state certainly does not have a “clear public policy” of allowing employees to possess firearms on the premises of their private employers. To the contrary, the Ohio legislature has specifically provided that employers may limit their employees’ rights to bear arms…. UPS was thus plainly within its rights … to prohibit its employees from possessing firearms in the parking area.

If your business does not have a policy banning weapons anywhere on its premises, consider contacting your employment counsel to have a policy drafted.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Ohio law protects employers that give negative job references

There are more people looking for work than at any time in the last 25 years. If you happen to be one of the companies hiring at the moment, you will likely have more applicants than you will know what to do with. How do you sift the good candidates from the bad, those who were laid off through no fault of their own from those who were terminated for poor performance? References are one tool, yet many employers seldom provide them out of a mistaken fear that they can be sued for giving a poor one.

Do you know? Ohio has a specific law, R.C. 4113.71, that protects employers that give negative job references. One employer can give another employer information about an employee’s job performance without fear of liability, unless:

1. the former employer knows the information is false, or makes the disclosure with the intent to mislead, in bad faith, or with a malicious purpose, or

2. the information is provided in violation of the employment discrimination laws (for example, an employer gives good references to white employees and bad references to black employees).

Thus, the only catch in giving employment references is that the information must be truthful and non-discriminatory. Business should not fear accurately responding to inquiries from other business about past employees. The next time you are asked for a reference on a former employee, consider responding accurately and honestly. Who knows, you might get the same courtesy in return.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Continued health benefits under COBRA

Last week, the federal government mandated a 65% employer-sponsored subsidy of employees’ health insurance premiums under COBRA for those employees involuntarily severed from employment between September 1, 2008, and December 31, 2009.

Do you know? What is COBRA, who and what does it cover, and what does it require?

“COBRA” stands for the Consolidated Omnibus Budget Reconciliation Act of 1986. It covers employer-sponsored group health plans of businesses that employed at least 20 employees (both full-time and part-time) on more than 50% of its typical business days in the previous calendar year. COBRA only applies to group health plans. It does not cover other type of employer-sponsored plans, such as disability or life insurance plans.

It requires employers to offer continuation coverage to covered employees, their spouses, their former spouses, and their dependent children when group health coverage would otherwise be lost due to certain specific events. The following chart summarizes the various qualifying events under COBRA, which beneficiaries are eligible for continuation coverage, and for how long:

QUALIFYING EVENT	QUALIFIED BENEFICIARIES	MAX. PERIOD OF CONTINUATION COVERAGE
Termination for reasons other than gross misconduct) or reduction of hours of employment	Employee Spouse Dependent Child	18 months
Employee enrollment in Medicare	Spouse Dependent Child	36 months
Divorce or legal separation	Spouse Dependent Child	36 months
Death of employee	Spouse Dependent Child	36 months
Loss of “dependent child” status under the plan	Dependent Child	36 months

 

Employers may require individuals who elect continuation coverage to pay the full cost of the coverage, plus a 2% administrative charge.

When a qualifying event occurs, employers must provide the employee or other beneficiary a notice describing their rights under COBRA and a form under which they can elect whether to continue group health coverage under COBRA.

Note that Ohio has its own mini-COBRA law, which requires the extension of COBRA benefits for 6 months to employers of as few as 10 employees.

Do you know? Agreements cannot waive future claims

Do you know? One of the mistakes that I see made over and over again in agreements I review is waivers of future claims. Take, for example, Hamilton v. General Electric Co. (6th Cir. 2/12/09), in which an employee had signed a “last chance agreement.” In exchange for reinstatement following an earlier termination, the employee agreed that he would not file legal action over any future termination. The 6th Circuit found that promise unenforceable because it amounted to a release of future claims.

For a waiver and release of claims to be valid, it only can release claims based on past conduct, and not future claims: As explained by the 6th Circuit in Adams v. Philip Morris, Inc.:

An employer cannot purchase a license to discriminate. An employment agreement that attempts to settle prospective claims of discrimination for job applicants or current employees may violate public policy … unless there were continuing or future effects of past discrimination, or unless the parties contemplated an unequivocal, complete and final dissolution.

If you are using any agreements for employees (such as severance agreements in connection with layoffs), be careful to ensure that they are not seeking to waiver any claims based on future conduct.

Do you know? Unpaid internships

Do you know? There are specific standards that govern whether an unpaid internship passes muster under the Fair Labor Standards Act. If you business uses unpaid interns or externs, these rules are worth paying attention to.

The Department of Labor’s Wage and Hour Division uses a six-factor test to determine whether a trainee, intern, extern, apprentice, graduate assistant, or similar individual is an employee. If even one of these factors fails, then the individual is an employee and all of the regular minimum wage and overtime rules apply. The six factors are:

1. The training is similar to what would be given in a vocational school or academic educational instruction;

2. The training is for the benefit of the trainees or students;

3. The trainees or students do not displace regular employees, but work under their close observation;

4. The employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion the employer’s operations may actually be impeded;

5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and

6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

In the typical internship or externship program (i.e., where the work is simply an extension of an academic program), these factors are usually met, an employer-employee relationship does not exist, and the business does not have to worry about minimum wage or overtime laws for the interns or externs. If you use interns and are concerned about whether they are considered employees that must be paid minimum wage and overtime, consult an employment attorney.

Do you know? The FLSA’s Computer Employee Exemption

Do you know? One of the FLSA’s lesser-known exemptions is the Computer Employee Exemption.

For an employee to qualify for the computer employee exemption, the employee must either be paid a salary of at least $455 per week or an hourly rate of at least $27.63. The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field.

Additionally, the employee’s primary duty must fall into one of the following four categories:

1. The application of systems analysis techniques and procedures, including consulting with users, to  determine hardware, software or system functional specifications;

2. The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

3. The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or

4. A combination of the aforementioned duties, the performance of which requires the same level of skills.

This exemption does not include:

• Employees engaged in the manufacture or repair of computer hardware and related equipment.

• Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (such as engineers, drafters, and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming.

As with the FLSA’s other exemptions, determining whether an employee or group of employees falls under this classification is very fact-specific, and it is often worth obtaining a professional opinion.

For information on some of the FLSA’s other exempt classifications, see:

• Do you know? The FLSA’s exemptions for salespeople

• Do you know? The FLSA’s Administrative Exemption

• Do you know? The FLSA’s Executive Exemption

  
  

Do you know? The FLSA’s exemptions for salespeople

Do you know? The FLSA has two different exemptions that could cover salespeople – the outside sales employee exemption and the commissioned retail employee exemption. If an employee qualifies for either of these exemptions, that employee is not owed overtime for any hours worked in excess of 40 in any given work week.

To qualify for the outside sales employee exemption, both of the following must be met:

1. The employee’s primary duty must either be making sales, or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and

2. The employee must be customarily and regularly engaged away from the employer’s place or places of business.

Because sales employees are often commissioned (at least in part), there is no salary requirement with this exemption.

Outside sales typically do not include sales made by mail, telephone, or the Internet. For example, this exemption does not cover telemarketers.

To quality for the commissioned retail employee exemption, all three of the following requirements must be met:

1. The employee must be employed by a retail or service establishment;

2. The employee’s regular rate of pay must exceed one and one-half times the applicable minimum wage; and

3. More than half of the employee’s earnings must be in form of commissions.

For information on other FLSA exemptions, see the following:

• Do you know? The FLSA’s Administrative Exemption

• Do you know? The FLSA’s Executive Exemption

Do you know? Ohio’s jury duty rules for employers

Do you know? Ohio has specific rules that govern how employers handle employees who are summoned for jury duty – Ohio Revised Code 2313.18.

Rule number 1 is simple. It is illegal for an employer to discharge, threaten to discharge, or take any disciplinary action that could lead to the discharge of any permanent employee summoned to serve as a juror, provided that the employee gives reasonable notice to the employer of the summons prior to the commencement of the employee’s service as a juror and if the employee is absent from employment because of the actual jury service.

Rule number 2, though, is counter-intuitive. It is illegal for an employer to require or even request an employee to use vacation time, or sick leave, or other paid time off for time spent responding to a jury duty summons, time spent participating in the jury selection process, or time spent actually serving on a jury.

Rule number 3 provides some relief for small businesses. If a company with 25 or fewer full-time employees (or their equivalent) has more than one employee summoned for jury duty within the same court term, the court must postpone and reschedule the service of the later-summoned employees.

Companies should take these rules seriously. Violations can be punished as contempt of court, and employees terminated in violation of this statute could pursue a wrongful discharge claim.

Do you know? “Comp” time in lieu of overtime

Do you know? Unless you are a state or local government, it is illegal to provide “comp” time in lieu of time-and-a-half for hours worked in excess of 40 in a work week.

Federal law requires that all non-exempt employees receive an overtime premium of one-half the regular rate of pay for all hours worked in excess of 40 in a given work week. To save on wages, some employers seek to provide overtime as “comp” time to employees. In other words, instead of paying an employee time-and-a-half for overtime worked, the employee would be paid the regular straight time rate, and receive an additional half-hour of paid time off to be banked and used in the future. Under the FLSA, this practice is illegal for private employers. It interferes with employees’ right to be paid their overtime premium.

For state and local governments, the FLSA has a specific provision that allows for the payment of comp time in certain circumstances, such as where it is provided for in a collective bargaining agreement or other agreement between the employer and employee.

For most employers, though, implementing a comp time program to skirt overtime obligations is a huge wage and hour no-no.

Do you know? The FLSA’s Administrative Exemption

Do you know? What does it take for an employee to qualify under the Fair Labor Standards Act’s Administrative Exemption?

To qualify for the administrative employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;

• The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and

• The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

“Primary duty” means the principal, main, major or most important duty that the employee performs, with the major emphasis on the character of the employee’s job as a whole.

Work “directly related to management or general business operations” includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities. It’s work directly related to assisting with the running or servicing of the business, as distinguished from working on a manufacturing production line or selling a product in a retail or service establishment. It also covers employees acting as advisors or consultants to their employer’s clients or customers.

The exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. It implies that the employee has authority to make an independent choice, free from immediate direction or supervision. Factors to consider include, but are not limited to:

• whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices;
• whether the employee carries out major assignments in conducting the operations of the business;
• whether the employee performs work that affects business operations to a substantial degree;
• whether the employee has authority to commit the employer in matters that have significant financial impact; and
• whether the employee has authority to waive or deviate from established policies and procedures without prior approval.

“Matters of significance” refers to the level of importance or consequence of the work performed.

Information on other FLSA exemptions is also available:

• The Executive Exemption.

Next week, we'll examine the Professional Exemption.

Do you know? The FLSA’s Executive Exemption

Do you know? What does it take for an employee to qualify as exempt under the Executive Exemption of the Fair Labor Standards Act? Yesterday, we examined a $35.5M verdict in a wage and hour collective action over certain management-level employees misclassified under the FLSA’s executive exemption. As that case illustrates, job titles do not determine exempt status. For an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the DOL’s regulations.

Today, we’ll examine exactly what it takes for an employee to qualify under the executive exemption. Over the next several weeks, we’ll also look at exemptions for administrative, professional, computer, and outside sales employees.

To qualify for the executive employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;

• The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;

• The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent (such as one full-time and two part-time employees, or four part-time employees); and

• The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

“Primary duty” means the principal, main, major or most important duty that the employee performs, with the major emphasis on the character of the employee’s job as a whole.

“Management” includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.

“Customarily and regularly” means greater than occasional but not necessarily all the time. For example, work normally done every workweek is customarily and regularly, but isolated or one-time tasks are not.

Factors to be considered in determining whether an employee’s recommendations as to employment decisions are given “particular weight” include whether it is part of the employee’s job duties to make such recommendations, and the frequency with which such recommendations are made, requested, and relied upon. An employee’s recommendations may still be deemed to have “particular weight” even if the employee is not the ultimate decisionmaker.

Do you know? Ohio’s Civil Theft Statute

Do you know? Ohio has a specific statute that allows for one to sue civilly for theft. Not only can one recover the amounts stolen, but also three-times that amount as liquidated damages. Because of this penalty provision, Ohio’s civil theft statute is a powerful tool to combat employee theft.

Ohio Revised Code 2307.61 is Ohio’s civil theft statute. It permits recovery for theft and willful damage of property. In addition to compensatory damages for the value of the property stolen or damaged, it also allows for the recovery of three times the value of the property as liquidated damages.

Moreover, it the amount at issue is less than $5,000, the owner of the stolen property is also entitled to recover costs (which includes the cost the written demand for payment, postage, and court costs) and attorneys’ fees if the following three conditions are met:

1. A written demand, via certified mail, for payment must be made at least 30 days prior to filing suit.

2. The written demand must identify the alleged theft offense, inform that suit will only be brought if repayment is not made within 30 days, and advise that the suit could result in a potential judgment that could include costs and attorneys’ fees. 

3. Repayment is not made or an agreement to repay is not reached within the 30-day period.

Pursuing a claim under this statute is not without some risk. If the defendant (for example, the employee accused of theft) prevails, he or she is entitled to recover the cost of defending the civil action plus any compensatory damages that may be proven. Because of this risk, it is important that an employer considering pursuing a civil theft claim has conducted a full investigation and is reasonably confident in its right to recover.

Do you know? Child labor rules

While I was watching Rudolph the Red Nosed Reindeer with my family and something struck me. The elves making toys for Santa looked awfully young. Is it possible that the North Pole lacks child labor laws? Is this how Santa keeps his costs down? After all, he needs toys for hundreds of millions, if not billions, of children.

Do you know? What are Ohio’s child labor laws?

Ages 14 and 15

• When school is in session: i) they cannot work between the hours of 7 p.m. and 7 a.m.; ii) they cannot work for more than 3 hours on any school day; and iii) they cannot work more than 18 hours during any school week

• When school is out of session: i) they cannot work between the hours of 9 p.m. and 7 a.m.; ii) they cannot work more than 8 hours per day; and iii) they cannot work more than 40 hours per week.

Ages 16 and 17

• When school is in session: i) 11 p.m. before a school day to 7 a.m. on a school day (6 a.m. if not employed after 8 p.m. the previous night); and there are no limits on hours worked per day or week.

• When school is not in session, there are no limits on starting or ending times, or hours worked per day or week.

Unlike adult workers, all minors are required to have a 30 minute uninterrupted break when working more than 5 consecutive hours.

Prohibited Occupations

All minors are prohibited from working in the following occupations:

• Slaughtering, meat-packing, processing rendering
• Operation of power driven slicers; bakery machines; paper product machines; metal forming; punching or shearing machines; circular and band saws; guillotine shears; woodworking machines
• Manufacture of brick, tile, and kindred products
• Manufacture and storage of chemicals or explosives, or exposure to radioactive and ionizing radiation substances
• Coal mining and mining other than coal
• Logging and saw milling
• Motor vehicle, railroads, maritime , and longshoreman occupations
• Excavation operations, wrecking, demolition, and shipbreaking
• Power-driven and hoisting apparatus equipment
• Roofing operations

Only 14 and 15 year olds are prohibited from the following occupations:

• Manufacturing and warehouse occupations (except office and clerical work)
• Public messenger services occupations
• Work in freezers; meat coolers and all preparations of meats for sale (except wrapping, sealing labeling, weighing, pricing and stocking)
• Transportation; storage, communications, public utilities; construction and repair
• Work in boilers or engine rooms; maintenance or repair of machinery
• Outside window washing from window sills, scaffolding, ladders or their substitutes
• Cooking, baking, operating, setting up, adjusting, cleaning, oiling, or repairing power-driven food slicers, grinders, food choppers cutters, baker type mixers
• Loading or unloading goods to and from trucks, railroad cars or conveyors
• Work with cars and trucks involving pits, racks, or lifting apparatus
• Inflation of tires mounted on rimes equipped with a removable retaining ring
• For-profit door-to-door employment (unless the employer is registered with the Ohio Dept. of Commerce Division of Labor & Worker Safety)

Do you know? EEOC filings reach a record number

Do you know? In 2008, the EEOC received 95,402 private sector charges of discrimination, which is a 15.2% increase from 2007. Given the current state of the economy, it is fair to assume a larger percentage increase for 2009, brining the EEOC’s charge processing well into six digits for next year.

The information comes from the EEOC’s Fiscal Year 2008 Performance and Accountability Report, which is akin to its annual report if it was a publicly traded company. Other highlights:

• In 2009, the EEOC will publish regulations providing guidance to employers and employees on the Genetic Information Non-Discrimination Act (GINA), which prohibits public and private employers from using genetic information in employment decisions.
• The EEOC will issue regulations implementing the Americans With Disabilities Act Amendments Act of 2008, which changes the way EEOC will be evaluating charges of discrimination received under Title I of the ADA.
• The EEOC will continue to pursue its E-RACE Initiative by taking a hard look at issues that impact race and color discrimination.
• The EEOC will focus its resources on combating systemic workplace discrimination.

What does this mean for you? For one thing, there is a good chance that a terminated employee who belongs to a protected class will pursue a claim at least via the filing of an EEOC or OCRC charge. Secondly, employers will get much needed guidance on how the EEOC will interpret GINA and the ADA Amendments. While this guidance is not binding on courts, it is very persuasive and will provide employers with a great jumping off point on how to put these new laws into play in the workplace. Finally, if your company has a policy or practice that systemically targets a protected class, there is a decent chance you will find yourself on the EEOC’s radar, if not in 2009 then at some point.

Do you know? Preservation of personnel files

Do you know? In Ohio, employers should preserve personnel files for six years after an employee leaves an organization. Under Ohio Revised Code section 4112.99, an employee has six years to file a discrimination lawsuit for all types of discrimination other than age (which, for some unknown anomalous reason is only 180 days). Because of this long statute of limitations, companies should not alter, destroy, dispose of any employee files or records until that time period expires. Moreover, all employees should be instructed pursuant to a written record retention policy of this requirement.

The potential penalties for the premature alteration, destruction, or disposal of any employee’s files or records are severe. For example, if an employee files a lawsuit related to his or her termination, and the employee’s personnel file cannot be located, a court may bar the employer from presenting evidence of the employee’s poor performance that led to the termination. A court might also create an inference, binding for the case, that the employee was, in fact, a good employee and that the performance problems did not exist. If a court believes that the disposal was done willfully to hide evidence, it may even go so far as to enter judgment in the employee’s favor. Courts take these obligations seriously, and so should you.

Do you know? The Pregnancy Discrimination Act at 30

Do you know? The Pregnancy Discrimination Act turned 30 years old last week. The PDA outlawed employment discrimination on the basis of “pregnancy, childbirth, or related medical conditions” as unlawful sex discrimination. It does not require that employers give pregnant women preferential treatment (that, after all, would discriminate against men), but it does mandate that pregnant women be treated as would any employee with a similarly disabling temporary condition. Yet, despite being ingrained into our way of thinking that pregnancy discrimination is wrong, the number of claims filed with the EEOC continue to rise. In 2007, pregnancy discrimination filings with the EEOC hit an all-time high of 5,587 (source: Time Magazine).

According to a study published by the National Partnership for Women & Families, the number of claims might actually be higher, as women may under-report pregnancy discrimination out of fear of causing long-term career damage. Who knows if this conjecture is true. What is true, however, is that employees, regardless of gender, have the right to have a career and a family and not be punished for the choice. The sooner businesses recognize this undercurrent of potential bias the sooner they can put measures in place to prevent pregnancy discrimination from becoming a potential problem area.

Do you know? Time off to vote on election day

Do you know? Ohio law requires that employers provide all employees a reasonable amount of time off to vote on election day. According to O.R.C. 3599.06:

No employer, his officer or agent, shall discharge or threaten to discharge an elector for taking a reasonable amount of time to vote on election day.... Whoever violates this section shall be fined not less than fifty nor more than five hundred dollars.

The time off does not have to be paid, but companies should be wary of docking salaried employees.

Next Tuesday is election day. Voter turnout is expected to reach an all-time high. Don’t make the mistake of disciplining employees if they arrive late, leave early, or take a long lunch because they are exercising their right to vote.

Do you know? Ohio’s wage payment statute

Do you know? Ohio has a specific law that details how companies are to pay their employees. O.R.C. 4113.15 provides, in relevant part:

(A) Every individual, firm, partnership, association, or corporation doing business in this state shall, on or before the first day of each month, pay all its employees the wages earned by them during the first half of the preceding month ending with the fifteenth day thereof, and shall, on or before the fifteenth day of each month, pay such employees the wages earned by them during the last half of the preceding calendar month….

(B) Where wages remain unpaid for thirty days beyond the regularly scheduled payday or, in the case where no regularly scheduled payday is applicable, for sixty days beyond the filing by the employee of a claim or for sixty days beyond the date of the agreement, award, or other act making wages payable and no contest court order or dispute of any wage claim including the assertion of a counterclaim exists accounting for nonpayment, the employer, in addition, as liquidated damages, is liable to the employee in an amount equal to six per cent of the amount of the claim still unpaid and not in contest or disputed or two hundred dollars, whichever is greater….

(D) As used in this section:

(1) “Wage” means the net amount of money payable to an employee, including any guaranteed pay or reimbursement for expenses, less any federal, state, or local taxes withheld; any deductions made pursuant to a written agreement for the purpose of providing the employee with any fringe benefits; and any employee authorized deduction.

In plain English, businesses have to pay their employees at least two time a month, at least as frequently on the 1st and 15th of each month. Of course, employers can choose to pay more frequently, but any less often would violate the statute.

If wages go unpaid for 30 days past a regularly scheduled payday, or 60 days if no payday applies (such as a vacation or bonus payout), the employer could be held liable for liquidated damages of the greater of 6% of the unpaid wages or $200, provided that there is not a legitimate dispute over the payment of the wages. For example, if an employee claims that they are owed unused vacation days on termination, or claims that a bonus is owed, and an employer disputes that claim in good faith (based on a policy, for example), the liquidated damages provision would not apply.

This law does specifically speak to the handling of unpaid wages on termination. One reasonable reading of the statute would make them due on the first regularly scheduled payday following the last day of employment. Another reasonable reading would make them due within 60 days after the last date of employment. The more prudent interpretation of the statute would suggest that employers make a habit of including final paychecks with the next regular payroll. However, under 4113.15(B), the employer will not incur any potential liability until 30 days after that next payroll.

Do you know? Breastfeeding at work

Today, I start what will become a weekly feature, which I am calling, “Do you know?” I have a lot of different sources from where I get ideas – recent cases, newspaper articles, other blogs, search terms, or something else that happened to catch my eye. Often, I use one of these sources to give people some general information about a specific area of employment law. For example, take a look at recent posts on FMLA intermittent leave, or meal and rest breaks under the FLSA.

Starting today, and hopefully every Tuesday from now on, I’m going to be presenting a general refresher on a different topic. Today’s topic: breastfeeding employees.

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Did you know? Ohio has one of the most liberal breastfeeding laws in the country. R.C. 3781.55 provides:

A mother is entitled to breast-feed her baby in any location of a place of public accommodation wherein the mother otherwise is permitted. “Place of public accommodation” has the same meaning as in section 4112.01 of the Revised Code.

In April 2007, the Ohio Civil Rights Commission issued its first probable cause finding under this statute, against a fitness club that prohibited a member from breast-feeding her 6-month-old son in its daycare area.

Does this provision prohibit an employer from stopping a lactating employee from taking time out of her day to nurse or pump. Under 3781.55, the question hinges on the definition of a “public accommodation.” A “place of public accommodation” is any “inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public.” This provision typically covers public areas that have to be accessible to the disabled. Because private work areas are not generally open to the public, this provision typically does not apply to employees. So, although there are cases on this issue, my best guess is that 3781.55 does not apply to the employer/employee relationship.

Just because 3781.55 might not protect a mother’s right to nurse at work does not mean that a company should immediately prohibit the activity. To the contrary, a company has to take a look at its other similar policies. A no-breast-feeding policy will, by its very nature, only apply to women. What other similar policies might a company have? Does it allow bathroom breaks during the work day? Smoke breaks? Other personal time? If so, a ban on nursing during the work day very well might be deemed discriminatory on its face, because it is necessarily targeted only at women. In other words, before you discipline that employee for taking break to pump, stop and think whether you want to risk the likely lawsuit and the bad publicity that will probably go along with it.