The Department of Labor's breakup with liquidated damages in wage and hour investigations lasted only four years. Late last week, the agency announced that it would again seek liquidated damages (an amount equal to the unpaid wages themselves) in investigations, undoing a policy change made by the Trump administration.
Wednesday, April 14, 2021
DOL reopens the floodgate to liquidated damages in wage and hour investigations
The Department of Labor's breakup with liquidated damages in wage and hour investigations lasted only four years. Late last week, the agency announced that it would again seek liquidated damages (an amount equal to the unpaid wages themselves) in investigations, undoing a policy change made by the Trump administration.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 13, 2021
The top 11 things you need to know about being sued by an (ex) employee
Because of the impending changes to Ohio's workplace discrimination law that take effect in two days, the filing of employment discrimination lawsuits in my state is seeing record numbers.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 12, 2021
Coronavirus Update 4-12-2021: It’s time to end pandemic PTO hesitancy
I haven't taken a proper vacation in 25 months. We were supposed to go to Portugal last March, but then Covid happened. In the 13 months since, there's been little point in taking off from work for any length of time because I haven't been able to go anywhere. "I can't go anywhere, so I might as well work," has been a popular pandemic refrain (me included).
Americans were bad at vacations before Covid. The pandemic certainly hasn't helped our PTO hesitancy.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, April 9, 2021
Coronavirus Update 4-9-2021: Income tax season has exacerbated the ongoing Covid plague of unemployment fraud
One of the lasting lessons of the Covid-19 pandemic for businesses is our broken state unemployment systems. State governments have paid out tens of billions of dollars in bogus unemployment claims. And with claims paid comes tax forms reporting the income related to those claims.
Consider the story of just one taxpayer, as relayed by the Wall Street Journal.
Michael Baird, a 33-year-old marketing manager in Chicago, hasn't lived in Texas for several years. And yet there was a tax form from the state of Texas sitting at his parents' house in Houston, showing that the state had paid him $1,014 in unemployment benefits.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, April 8, 2021
Title VII and “fringe" religions
"A pagan says she faced religious discrimination while working at Panera. Now, she’s suing." So reads the headline at the Washington Post. The plaintiff claims that after she told an assistant manager that she was pagan, her hours were cut and she was told they wouldn't be restored until she "found God" (in addition to other alleged workplace harassment).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, April 7, 2021
6th Circuit applies False Claim Act’s anti-retaliation protections to ex-employees
In the history of this blog's 3,603 posts, I've never written about the False Claim Act. If you've been waiting with bated breath for me to fix this omission, today's your lucky day, thanks to United States ex rel. David Felten, M.D., Ph.D. v. William Beaumont Hosp. (6th Cir. 3/31/21). Before diving into the Felten case, let's first take a 61-word peek at the False Claims Act and to what it applies.
The False Claims Act is a federal statute that imposes liability on people and companies that defraud the federal government, and further, relevant to Felten, permits private citizens (which the law calls "relators") to file lawsuits (known as qui tam claims) on behalf of the government and protects relators from retaliation when the lawsuit they are filing is against their employer.
At issue in Felten is whether the FCA's anti-retaliation protections only cover current employees, or whether they also extend to an employer's former employee who blows the whistle by filing a qui tam suit.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 6, 2021
Coronavirus Update 4-6-2021: Is work from home not all it’s cracked up to be?
Three weeks ago I returned to the office. That return matched my start date at Wickens Herzer Panza. I decided that it'd be difficult, if not impossible, to learn a new firm and its systems, and build camaraderie and teamwork with my new co-workers, if I'm working remotely. Thus, I made the decision to break free of my self-imposed Covid cocoon and start working most days in person in the office.
I thought about this decision as I read this article in the Wall Street Journal: After Covid, Should You Keep Working From Home? Here’s How to Decide.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 5, 2021
Coronavirus Update 4-5-2021: The Covid lawsuits are coming
Thirteen months into the pandemic, the COVID-related employment lawsuits are starting to roll into courthouses. Consider the following, all of which made headlines over the past couple of weeks.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, April 1, 2021
No foolin': the most meaningful changes to Ohio's employment discrimination law take effect in two weeks
Two weeks from today, H.B. 352 takes effect and brings the most significant changes to Ohio's workplace discrimination statute since its passage decades ago. What are these changes?
- Creates a universal two-year statute of limitations for all employment discrimination claims.
- Requires individuals to file an administrative charge with the Ohio Civil Rights Commission as a prerequisite to filing a lawsuit.
- Unifies the filing of age discrimination claims to the same procedures and remedies as all other protected classes.
- Eliminates individual statutory liability for managers and supervisors.
- Caps non-economic and punitive damages based on the size of the employer.
- Establishes an affirmative defense to hostile workplace sexual harassment claims not alleging that did not result in an adverse, tangible employment action, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 31, 2021
Coronavirus Update 3-31-2021: Covid-19 vaccination cards will be required to do lots of things, including possibly even working
According to the Wall Street Journal, Covid-19 vaccination cards are our only proof of vaccination status and will soon be as essential as a drivers' license or passport. With no national or statewide centralized databases of vaccination records, the piece of paper you receive with your vaccine dose is your only proof of vaccination.
The article suggests that we'll need this record to do lots of things moving forward, such as travel. What about returning to in-person work? Can employers ask for or require that employees provide proof of vaccination?
According to the EEOC, the answer is yes as to the ask.
Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?
No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.
The question then becomes what does an employer do if an employee cannot provide proof of vaccination? If the vaccine is mandatory and a condition of employment, it can deny access to the workplace or even terminate, provided that it is considering exceptions for employees' disabilities and sincerely held religious beliefs, practices, and observances. If the vaccine is not mandatory, why ask for the vaccine record in the first place?
We are entering a very interesting era of privacy, including employee privacy. If you are not mandating the vaccine, while you are within your legal right to ask about vaccination status, why would you? Do you really want to catalogue your employees' vaccination status and for what purpose?
* Photo by Marco Verch Professional Photographer on Flickr [Attribution 2.0 Generic (CC BY 2.0)]
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 30, 2021
Let's meet employees where they are on their pronouns
In Meriwether v. Hartop, the 6th Circuit recently decided that a state university cannot force a professor to use students' preferred gender pronouns, and permitted the prof to proceed with his lawsuit challenging the school's discipline for his misgendering.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 29, 2021
Supporting our AAPI employees in their time of crisis
The stats are jarring, disturbing, and scary. During the past year of the COVID-19 pandemic, there have been nearly 3,800 reported anti-Asian hate incidents, including shunning, slurs, and physical attacks. That number represents a stunning 46 percent increase over the prior year, and still just a small percentage of the actual number that has occurred. These incidents culminated last week in Robert Aaron Long shooting and killing eight people at three Atlanta-area massage parlor.
Your AAPI (Asian Americans and Pacific Islanders) employees are hurting. Here are some thoughts on how we, as their employers, can best support them.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, March 26, 2021
Coronavirus Update 3-26-2021: 5 Considerations for Drafting Your COVID-19 Vaccination Policy
At some point over the next several months, most of your employees will receive one of the various COVID-19 vaccines that the Food & Drug Administration has approved for Emergency Use Authorization. As your employees consider whether and when to obtain the vaccine, you, as their employer, have numerous issues to consider regarding the vaccination status of your employees. You should also formalize these decisions in a written Vaccination Policy that you provide to each of your employees, so that everyone is on the same page as to your requirements and expectations regarding the vaccine.
What are the five key issues every employer should be considering and incorporating into a COVID-19 Vaccination Policy? You'll have to head over to the Wickens Herzer Panza website to find out.
* Photo by Joshua Hoehne on Unsplash
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 25, 2021
Coronavirus Update 3-25-2021: Ohio legislature foolishly and dangerously limits the authority of the governor to respond to public health crises
"I can tell, as you're smirking at me not wearing a mask, you are not good at public health. This is not your lane, you need to get out of it."
Here was House Minority Leader Emilia Strong Sykes' floor speech criticizing the override vote for Senate Bill 22
— Tyler Buchanan (@Tylerjoelb) March 24, 2021
"You are not good at public health," she tells maskless GOP colleagues pic.twitter.com/RYUCR1yxlx
That's Ohio House Minority Leader Emilia Strong Sykes chastising her Republican colleagues for their support of Senate Bill 22, which Governor DeWine vetoed on Tuesday, and the state legislature overrode that veto yesterday.
What is S.B. 22? It limits the authority of the governor, Ohio Department of Health, and local health departments to respond to a public health crisis such as the ongoing COVID-19 pandemic.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 24, 2021
Coronavirus Update 3-24-2021: Which of your employees should you bring back to work
For the past year, an astounding 44 percent of employees have been working remotely full time, and two-thirds of employees have been working remotely at least one day per week. With vaccination rates on the rise and offering a light at the end of the pandemic tunnel, employers are starting to plan for bringing employees back to the physical workplace.
These decisions involve a lot of key questions an employer needs to answer in planning for where employees will work in a post-vaccine, post-pandemic world.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 23, 2021
The 7th nominee for the “Worst Employer of 2021” is … the penny pincher
The law of every state I can think of requires that an employer timely provide a departed employee with his or her last paycheck. I know of no law that says how that final payment must be paid. There should be a law, however, that prohibits an employer from doing so by dumping a pile of oily pennies in someone's driveway.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 22, 2021
Coronavirus Update 3-22-2021: Covidiots at Whole Foods
"I'm Jewish; I don't have to wear a mask." That's what the maskless woman (shopping with her maskless teenage daughter) in front of me in line yesterday at the Whole Food fish counter said to the employee who politely reminded her that the mask she was holding in her hand was required to be on her face while inside the store.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, March 19, 2021
Coronavirus Update 3-19-2021: CDC is now recommending COVID-19 screening tests of asymptomatic employees of certain employers
The CDC is now recommending that certain non-healthcare employers test asymptomatic employees for COVID-19. According to the CDC, this screening "may be useful to detect COVID-19 early and stop transmission quickly" and can be done in done "in addition to symptom and temperature checks, which will miss asymptomatic or presymptomatic contagious workers."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 18, 2021
Coronavirus Update 3-18-2021: Employers facing lawsuits for failing to pay for pre-shift Covid screenings
In the early days of the COVID-19 pandemic, I asked this question: "Are employers legally responsible for paying workers for the time it takes to record their body temperatures before entering the workplace?"
My answer was a legal, "Probably," and a moral, "Definitely."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 17, 2021
Coronavirus Update 3-17-2021: CDC allows large employers to establish vaccination sites
Yesterday, the CDC released guidance permitting large employers to establish temporary sites to vaccinate employees.
The CDC says that employers should consider opting for an on-site vaccination program if they have a large number of employees with predictable schedules and enough space to set up a pop-up clinic while still allowing for COVID-appropriate social distancing.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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