Do you know? Charging for work uniforms

More and more businesses are looking to cut costs anywhere they can. Many require their employees to wear a certain uniform. Can they pass on the costs of the uniforms to their employees?

Generally speaking, there is no law that forbids an employer from mandating that its employees pay for required work uniforms. There are two important exceptions to this general rule: minimum wage and OSHA.

1. Minimum Wage.

The added expense from the uniforms cannot reduce the employee’s effective hourly rate below the minimum wage. Currently, Ohio’s minimum wage is $7.30 per hour. For example, if an employee is paid $8 per hour, and works a 40-hour week, the employer could charge up to $28 that week for uniforms. Any charge greater than $28 would illegally reduce the employee’s hourly rate below $7.30 for the week.

2. OSHA and Personal Protective Equipment.

Employers must also be careful if the uniforms include items that are required for employees’ personal safety. Recently enacted OSHA rules prohibit employers from requiring employees to pay for required personal protective equipment. Employers must pay for most required safety equipment. The only exceptions are non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots), non-specialty prescription safety eye wear, logging boots, and everyday clothing.

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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.

What’s your five? A question for my readers and fellow bloggers.

As a member of the Ohio Chamber of Commerce’s Employment Law Committee, I was asked to respond to the following questions:

What would you say the top 5 labor & employment issues are that HR professionals and employers (large and small) would like to know more about or are struggling with in this economy?

What can be changed/done to make such labor & employment issues less onerous for employers?

Here’s my list:

1. Job losses, job creation, and managing workforces to ensure, as best as possible, as much work as possible for as many people.

2. The risk of increased unionization in the face proposed federal legislation and a down economy.

3. Layoffs and the litigation risks that flow from them.

4. The threat and proliferation of wage and hour litigation.

5. Rising health care costs.

Figuring out what can be done to fix these problems is a much harder question to answer. Any program designed to aid employers has to start and end with training and education. Being proactive is the best measure to guard against these potential problems.

To my readers and fellow bloggers, if you had to list the top 5 labor and employment issues facing employers in 2009, what would they be? Perhaps more importantly, what can be done to limit or temper these issues for businesses? I’m very interested in what everyone has to say. Please comment. If you post on your own blog, please email a link. I’d like to update this post next week with everyone’s thoughts.

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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.

WIRTW #76

Courtesy of Anthony Zaller at the California Employment Law Report, the link of the week is How to Nail and Interview. The author of that site posted a fake job on craigslist for a marketing position and recorded the interviews. Hilarity ensued. My personal favorites are #9, in which the applicant is caught off-guard when pressed on her inappropriate Facebook page, and #13, where the applicant hoped her willingness to “do anything” would score her the job. It is definitely clicking over and watching some of the videos.

In other news, from Martha Neil at the ABA Journal is a story about two Dominos Pizza employees who thought it was a good idea to perform inappropriate acts on customers’ food and post the videos on YouTube. Not only were they fired, but they are also facing criminal charges for food tampering.

Nick Fishman at the EmployeescreenIQ Blog has more on Ohio’s attempt to ban the use of credit reports in employment decisions.

George’s Employment Blawg reports on a $17.5 million verdict in a trade secret theft case.

The Laconic Law Blog tells how an employee’s use of profanity directed at his employer cost him any protection against retaliation.

Tim Eavenson at Current Employment uses news of 2 recent EEOC settlements to instruct on preventing HR catastrophes.

Michael Haberman at HR Observations makes an observation workplace privacy and social networking.

Finally, this week brought us oral argument in Ricci v. DeStefano, which will decide whether the city of New Haven violated Title VII when it declined to certify the results of an exam that would have make disproportionately more white applicants eligible for promotion than minority applicants. In layman’s terms, is it discriminatory to void a test that disproportionately favors white applicants over minority applicants. For very detailed analysis of these issues and the Supreme Court oral argument, read Dan Schwartz at the Connecticut Employment Law Blog and Marcia McCormick at the Workplace Prof Blog.

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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.

Employers should be planning for the Employee Free Choice Act

Even the most ardent supporters of the Employee Free Choice Act agree that passage in its current form is unlikely. The Cleveland Plain Dealer quotes Ohio Sen. Sherrod Brown:

Although Brown backs the legislation in its current form, he says it won’t get enough votes for passage in the Senate now that former backers including Pennsylvania Republican Sen. Arlen Specter have withdrawn their support.

He said he expects a compromise will be reached to continue the secret-ballot elections, but require them to be conducted swiftly and handled in a way that doesn’t inordinately favor businesses.

Despite these delays and possible changes, employers should be vigilant about preparing for its passage in one form or another. As Texas attorney Michael Maslanka points out on Law.com, “Some version of EFCA will be the law no later than next year at this time. Advice: Avoid ostrich-like attitudes of self-delusion.”

What can you do, as employers, do to keep your heads out of the sand? Plan on attending KJK’s next Breakfast Briefing, How to Stay Union Free in a Union-Friendly World. The event will be held May 13 from 8 a.m. to 10 a.m., and it is totally free. If you would like to attend or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com.

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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.

EEOC releases “Employer Best Practices for Workers with Caregiving Responsibilities”

It’s been almost two years since the EEOC released its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. Since that time, buzz words such “work-life balance,” “family-friendly,” and “family responsibilities” have been put to use in companies all across America, and juries have continued to punish businesses that punish employees who prioritize their families over their work.

To help employers navigate these dangerous waters, today the EEOC published its Employer Best Practices for Workers with Caregiving Responsibilities. While these “Best Practices” are couched in terms of discrimination against caregivers, the tips offered by the EEOC, while not groundbreaking, are universally applicable to any employment practice. Some of the more important tips are:

• Develop, disseminate, and enforce a strong EEO policy that provides examples of illegal conduct and identifies a contact person for questions or complaints.
  
• Ensure that managers at all levels are aware of, and comply with, the organization’s policies.
  
• Respond to complaints of discrimination efficiently and effectively.
  
• Protect against retaliation.
  
• Focus on qualifications, not characteristics.
  
• Develop specific, job-related qualification standards for each position that reflect the duties, functions, and competencies of the position.
  
• Identify and remove barriers to re-entry for individuals who have taken leaves of absence from the workforce.
  
• Ensure that employment decisions are well-documented and transparent (to the extent feasible).
  
• Monitor compensation practices and performance appraisal systems for patterns of potential discrimination.
  
• Reassign job duties that employees are unable to perform because of pregnancy or other caregiving responsibilities.
  
• Provide reasonable personal or sick leave.

Do you know? A company cannot represent itself in an Ohio court

In the April 9 New York Times, Jonathan Glater reported that more and more people are turning to self-representation during the current economic downturn. In Ohio, individuals may be able to do it themselves without lawyers, but businesses cannot.

If a business appears in court without an attorney, the representative is illegally engaging in the unauthorized practice of law. Under Ohio law, a corporation or other business only can maintain litigation or appear in court through an attorney. It may not do so through an officer of the corporation or some other appointed agent or representative. At least in Ohio, there is no such thing as a business appearing pro se (without a lawyer).

The only exception exists in small claims court, where a corporation can bring a claim based on a contract to which it is a party, as long as the representative does not “engage in cross-examination, argument, or other acts of advocacy.” For example, without a lawyer a company can file a claim in small claims court to recover an unpaid account. If the individual disputes the amount due, however, a non-lawyer cannot cross-examine the individual or argue to the magistrate.

Next time your business thinks about going it alone in court to save a few dollars, think about whether it worth the likely risk of a default judgment or dismissal of the case for not being represented by an attorney.

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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.

Ohio Senate seeks to ban use of credit in employment decisions

There is little doubt that the current economic crisis has caused havoc on a lot of good intentioned people’s credit scores. During the good old days , people over-extended their credit, bought houses they can no longer afford, and otherwise lived beyond their means. With the retraction of the credit market and the exponential rise in home foreclosures, many people’s credit histories and FICO scores have suffered.

Ohio Senate Bill 91, however, is a reactionary move to this crisis that simply goes too far. This bill proposes to prevent employers considering people’s credit histories when makes an employment decision:

It shall be an unlawful discriminatory practice for an employer to use a person’s credit rating or score or consumer credit history as a factor in making decisions regarding that person’s employment, including hiring, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.

Jim Siegel, a reporter for The Columbus Dispatch, quotes Tony Fiore of the Ohio Chamber of Commerce:

Senate Bill 91 will face opposition from business groups that want flexibility in how they determine whether someone is right for a job.

“Do you want someone with a bad credit history managing the company’s money, or yours?” said Tony Fiore, a lobbyist for the Ohio Chamber of Commerce.

“The employer needs that ability because they want to make sure they’re putting the best people forward, not only to help the company, but help the people relying on the company.”

Aside from the concerns voiced by Mr. Fiore (which I wholeheartedly echo), there is also a bigger issue at play here. There already exists a federal law the gives employees significant protections in how employers use credit information. The Fair Credit Reporting Act [PDF] make it illegal for any employer to obtain or use one’s credit for making an employment decision without the individual’s written authorization. And, an employer cannot take an adverse action (such as firing, or refusing to hire) based on information contained in a credit report without first giving the individual a reasonable amount of time to dispute the accuracy of the information or otherwise offer an explanation. With these federal protections in place for employees and applicants, Ohio’s businesses do not need to be prohibited from using this important tool.

[Hat tip: employeescreenIQ Blog]

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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.