Experienced Employment Attorneys
Serving Businesses of all Sizes
Legal Services for Employers
- Defense of Discrimination Claims in All Courts and Administrative Agencies
- Employee Handbooks
- HR Training
- Employment Litigation
- Defense of Fair Labor Standards Act (FLSA) and State Law Class Actions
- Non-Compete and Non-Solicitation Enforcement & Defense
- Trade Secret Protection
- Wrongful Discharge Defense
- Employment Tax Strategy
- Executive & Professional Employment Agreements & Compensation
- Severance & Separation Agreements
- Stock & Equity Agreements
- Confidentiality, Non-Compete and Non-Solicitation Agreements
- Outside General Counsel Services as Needed on Day-to-Day Labor & Employment Issues
- Defense of National Labor Relations Board (NLRB) Charges and Litigation
- Collective Bargaining
- Counseling on Union Issues
- Union ElectionsTraditional Labor (Management Side
- Defense of National Labor Relations Board (NLRB) Charges and Litigation
- Review of Employment Policies and Practices
- Employment Audits
Defending Employers before DOL, EEOC and OSHA
We routinely defend employers in federal and state court regarding all areas of labor and employment law. Our Labor & Employment attorneys also regularly appear before the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL) and similar state agencies to defend our clients against discrimination charges, as well as wage and hour and unemployment claims. We also work to prevent those claims in the first place through our time-tested employment audit and policy review programs.
The Coronavirus Pandemic:
What Does a COVID-19 Vaccine Mean for Employers?
The COVID-19 vaccine has created many questions, particularly in the workplace. Do employers have the right to require their employees to get it? Here’s what our Labor & Employment attorneys have to say about best practices for drafting a vaccine policy for your business.
Labor & Employment
Read Our Blog
On Dec. 13, 2022, the National Labor Relations Board (NLRB) issued a monumental decision that significantly expands upon the remedies available to employees for violations of the National Labor Relations Act (NLRA). In Thryv, Inc., the Democratic majority of the NLRB...
Last week, the Federal Trade Commission (FTC) published the Non-Compete Clause Rulemaking, a proposed rule that would prohibit the use of non-compete agreements and preempt all state laws that provide less protection to workers. If made final, the proposed rule would...
Starting a new business? The U.S. Bureau of Labor Statistics indicates that 20% of new businesses fail in the first two years, and that 45% fail in the first five years. As daunting as those figures may seem, there are measures you can take to avoid having your new...
Labor & Employment
Robert S. Gilmore
Alan M. Rauss
Samir B. Dahman
Jon W. Groza
Jay E. Krasovec
Andrea V. Arnold
Hannah J. Kraus
“Rob has a calm demeanor that perfectly translates his excellent advice on hiring, personnel and employer/employee relations. I recommend his advice and ability to help employers consider their options when engaging with employees in all aspect of staffing situations.”
– Rob Felber
PRESIDENT | FELBER PR & MARKETING
“I wanted take the time to thank you for the professional advice and guidance you gave on a timely basis to counter a former employee’s separation deal. It took a while from my anxiety and frustration perspective. However, I felt with your leadership we were able to resolve at minimal damages! Once again, thank you!”
– Sudhir Achar
CEO | EOX VANTAGE
EMPLOYMENT LAW FREQUENTLY ASKED QUESTIONS:
What is the best way to deal with an employee who consistently underperforms in his job?
Follow these steps:
- Make sure that the employee fully understands your expectations, and that they have the skill, training and opportunity to succeed. If they require any training, provide it.
- Give them a reasonable opportunity to succeed, while you regularly monitor their performance and provide feedback (positive and negative).
- If the employee continues to fail, provide appropriate warning(s) and time to cure. If they improve to a level that meets your expectations, maintain the relationship. If not, terminate the employment relationship.
- Thoroughly document all of the above.
Non-Compete and Confidentiality Agreements
Are employee agreements not to compete with the employer enforceable in Ohio?
Yes, if they are reasonable in scope, territory covered and duration.
- Scope relates to what the employee will be prevented from doing. It should be closely related to their duties at the current job.
- Territory should conform to the geographic area in which the employee worked.
- Duration should be no longer than it should reasonably take the employer to place a new employee into the same territory and for the new employee to develop a relationship as the employer’s representative. Ohio courts are not likely to enforce a restriction that exceeds two years.
- Note that the judge who hears the case has the power to modify an over-reaching non-compete to one that is reasonable. Also note that the enforcement of a non-compete depends in part on the attitude of the judge to these kinds of cases.
Does an employee need to be paid for signing a confidentiality agreement?
No. The inception or mere continuation of the employment relationship provides sufficient consideration.
- Confidentiality agreements need not have a fixed duration or territory. They can extend forever, if the information covered remains confidential, and can cover the universe.
- The definition of the items that are “confidential” is important. Items that become known to the public without disclosure by the employee are no longer deemed to be confidential.
Does an employee need to be paid for signing an agreement not to compete?
That requirement was formerly the law in Ohio, but it has recently changed.
- Prior law provided that, unlike an agreement of confidentiality (see below) an employer must provide “something of value” to the employee in order for the non-compete agreement to be enforceable.“Something of value” (which lawyers refer to as “consideration”) could mean the decision to hire if the non-compete was signed at the inception of the employment relationship, or it could be a pay increase, a bonus, a promotion, etc.
- Recently, Ohio courts have concluded that the mere continuation of an at-will employment relationship would be sufficient consideration to make the non-compete enforceable.
Family and Medical Leave Act (FMLA)
What is the FMLA?
The FMLA is a federal law that is designed to help employees balance their work and family responsibilities by allowing them to take unpaid leave for certain family and medical reasons.
Are all employers and employees covered by the FMLA?
- An employer is covered by the FMLA if it employs 50 or more employees (part-time employees count) in 20 or more work weeks in the current or previous calendar year. An employee is considered to be employed each working day of the calendar week if the employee works any part of the week.
- An employee is eligible for FMLA benefits if the employee worked for the employer for at least twelve months and at least 1,250 hours during the prior twelve months.
What benefits does the FMLA provide to employees?
The FMLA provides a number of benefits to employees.
- Employees may take up to 12 weeks of unpaid leave during a particular 12-month period if one of the covered reasons apply. Covered reasons include birth or care of a child, to care for a child, spouse or parent with a serious health condition or to deal with the serious health condition of the employee.
- The FMLA gives an employee who has taken FMLA leave the right to reinstatement to his former position, or to an equivalent position, without loss of pay or benefits, when the employee returns to work at the end of the leave.
- During leave, the employee does not accrue employment benefits, such as vacation pay, sick pay, pension, etc. However, group health benefits must be maintained during the leave, and any employment benefits accrued by the employee up to the day on which the leave begins will not be lost as a result of taking a FMLA leave.
Does an employee have to take all of his FMLA leave at one time?
No, but the total amount of time on leave cannot exceed 12 weeks in a 12-month period. Intermittent leave after the employee returns to work is also a possibility.
Fair Labor Standards Act (FLSA)
What is the Fair Labor Standards Act (FLSA)?
The FLSA establishes minimum wage, overtime pay and recordkeeping standards for private employers and federal, state and local governments. Absent a state law that imposes a higher minimum wage requirement, non-exempt workers should earn a minimum wage of not less than $7.25 per hour. The FLSA also requires that overtime be paid to all non-exempt workers at one and one-half times the worker’s regular rate of pay for all time he or she has worked in excess of 40 hours in a single workweek.
In what ways are exempt employees and non-exempt employees treated differently under the FLSA?
Exempt employees are not covered by the requirements of the FLSA. In order be exempt, an employee must earn a salary (rather than an hourly rate), earn at least $684 per week or $35,568 per year and perform specific job duties based on their classification. On the other hand, non-exempt employees must be paid at least minimum wage (either by salary or at an hourly rate) and are entitled to overtime pay for all time worked in excess of 40 hours per week. Please keep in mind that state laws may differ with respect to minimum wage, the amount of salary required for exempt employees and computation of overtime.
What workers are exempt from overtime?
FLSA regulations and overtime pay are not applicable to exempt employees, such as outside salespeople, professionals, administrative employees, executives and computer specialists. Each exemption category has its own set of rules and parameters that the employee must meet to be considered exempt. Determining if an employee is exempt or non-exempt is a highly fact-specific, legal inquiry, which is largely determined by the employee’s job duties and discretion in the workplace. Please note that an employee is not exempt based solely on his or her job title.
What is a “reasonable accommodation” under the Americans with Disabilities Act?
Under Title I of the Americans with Disabilities Act (ADA), a “reasonable accommodation” is a modification to an employee’s job duties or work environment due to the employee’s covered disability. If an employee has made a request for a reasonable accommodation, or if the employer is aware that the employee has a condition that would qualify as a disability and needs an accommodation, the employer has a duty to engage in an interactive process with the employee to determine if a reasonable accommodation exists for the employee in the workplace. Accommodations are generally considered reasonable if they do not create an undue hardship (i.e., too costly or unduly burdensome for the employer). Examples of reasonable accommodations include accessibility in the workplace, modified work schedules, modified equipment, change of presentation of tests and materials or reassignment.
What are my obligations to a disabled applicant during the hiring process?
The Americans with Disabilities Act (ADA) makes it unlawful to ask an applicant whether he or she is disabled and to require the applicant to take a medical examination before making a job offer. However, an employer may ask the applicant questions related to the job functions and/or accommodations to job functions, so long as the questions are not directed at the employee’s disability. After a job offer is made, and prior to commencement of employment, an employer may require that the applicant take a medical examination, which may include an alcohol and drug test. An employer may condition the job offer on the results of such medical examination. Once hired, an employer cannot require an employee to submit to a medical examination or ask the employee questions about a disability, unless the employer can show that it is “job-related and necessary” for business.
What employment practices are covered under the Americans with Disabilities Act?
The Americans with Disabilities Act (ADA) makes it unlawful for an employer to discriminate against a disabled employee with respect to recruitment, pay, hiring, firing, promotion, training, benefits and other employment-related activities.
Who is and is not covered under Title VII of the Civil Rights Act?
Title VII of the Civil Rights Act of 1964 is a federal law that protects employees from discrimination based on certain characteristics, including race, color, national origin, sex and religion. An employer may not discriminate with respect to any term, condition or privilege or employment. Title VII covers all companies and labor unions with 15 or more employees, employment agencies, state and local governments, and apprenticeship programs. It does not cover federal government employees or independent contractors.
What is the process after a Charge of Discrimination has been filed with the Equal Employment Opportunity Commission or a state equivalent?
After a charge of discrimination is filed with the Equal Employment Opportunity Commission (EEOC) or the state equivalent (NOTE: in Ohio, it is the Ohio Civil Rights Commission), the administrative agency will notify the employer. This notification will generally include steps of the investigation, how to login into the Respondent portal (if there is one) and a request as to whether the employer would like to engage in mediation with the Claimant. Mediation is completely voluntary and at the sole discretion of the parties.
If either the employee or the employer does not choose to engage in mediation, the EEOC or state administrative agency will continue its investigation, which may include the employer’s submission of Respondent’s Position Statement, a response to a request for information, witness interviews and/or on-site company visits. The investigation can potentially be extensive and is oftentimes rather lengthy. However, cooperation from the employer can help the administrative agency to promptly conclude its investigation.
Once the investigator has completed the investigation, the EEOC or state equivalent will make a determination as to the merits of the Charge. They may: (i) conclude that there is no reasonable cause to believe the discrimination occurred and issue a Dismissal and Notice of Rights letter to the employee, (ii) determine that there is reasonable cause to believe discrimination has occurred and invite the parties to join an informal resolution process called conciliation or (iii) if conciliation is unsuccessful, issue a Notice of Right to Sue letter to the employee.
If the employee receives a Dismissal and Notice of Rights letter or Notice of Right to Sue letter, he or she may file a lawsuit against the employer within 90 days of receipt.