Author Archives: Stephen E. Imm

There is a great deal of discussion about the rights of employees with respect to their employers. Most of us are familiar with the laws that protect employees from things like discrimination, harassment, retaliation, not being paid overtime or minimum wage, unsafe working conditions, etc.

We hear a lot less about what employers have the right to expect from their employees. One important duty that employees do owe to their employers is what is called the “duty of loyalty,” or what in the old days was called the “faithless servant” doctrine.

This is not a duty that it is imposed by a statute passed by the legislature. It is rather what we call a “common law” duty. It is not necessary for the employer to state this in a contract or otherwise. It is an implied duty that exists in all employment relationships in the state of Ohio. If you are an employee, you owe this duty of loyalty to your employer.

What this means as a practical matter is that and employer may have a right to sue a former employee if the employee does something, during the course of his or her employment, that is directly contrary to the employer’s best interests, or that deliberately causes harm to the employer.

The duty of loyalty ends when the employment ends. The employee no longer owes such a duty after resigning or being terminated. But while the employment lasts, the employee must act honestly and in good faith in matters that directly affect the employer’s interests.

Examples of violating the duty of loyalty include competing with the employer while still employed with it, trying to solicit the employer’s customers before resigning, diverting business opportunities from the employer to a third party, misusing the employer’s property or money, or taking kickbacks or bribes from the employer’s customers.

So the duties between employers and employees do run both ways. Both sides of the employment relationship should keep that in mind.

On August 26, Federal Judge Stephanie Bowman issued an important ruling in Finney Law Firm’s fight to get justice for former Cincinnati Fire Chief Mike Washington. Judge Bowman rejected the efforts of the City of Cincinnati and its City Manager, Sheryl Long, to have his claims dismissed on Summary Judgment.

The Court agreed with the arguments made by FLF attorneys Samantha Isaacs, Matt Okiishi, and Stephen Imm that Chief Washington had a Constitutionally protected interest in his employment, and that he did not receive the due process of law to which he was entitled before he was fired on March 24, 2023. You can read a copy of Judge Bowman’s opinion here.

Several issues remain to be decided at trial, but this is a key win for the Chief. FLF looks forward to the trial, and to achieving full vindication for Mike, a devoted public servant to the people of Cincinnati for 30 years.

You may read the decision here: Chief Washington decision

For assistance with your employment law matter, please reach out to any of Steve Imm (513.943.5678), Matt Okiishi (513.943.6659) or Samantha Isaacs (513,797.2859).

Many people have become familiar with the concept of “reasonable accommodation” under the Americans with Disabilities Act (“ADA”). Basically, the law requires employers to “accommodate” the needs of a disabled employee if it can be done reasonably, and without causing an “undue hardship” to the employer.

Less well-known is the employer’s duty to accommodate the religious beliefs of its employees. This duty arises under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of such characteristics as race, color, sex, and religion.

The classic example of a religious accommodation case under Title VII is whether an employer must excuse an employee from working on their Sabbath day if their religion prohibits it. As in the case of the ADA, the law requires employers covered by the Act to reasonably accommodate the sincerely held religious beliefs of an employee if it can be done without causing an undue hardship for the employer.

But what constitutes an “undue hardship“? If providing an accommodation would cause some inconvenience, difficulty, or expense for an employer, how do we determine whether it is significant enough to be considered an “undue” hardship under the law? How much hardship is “too much”?

Recently, in a case called Groff v. DeJoy, the United States Supreme Court provided some guidance on this question. In doing so, it significantly increased the burden of proof employers must meet in order to show that a proposed accommodation of an employee’s beliefs would impose upon it an “undue hardship.”

Previously, the Court had suggested that any hardship that was more than “de minimis“ – meaning, “barely noticeable” – was enough to constitute an “undue” hardship in the context of a reasonable accommodation. This was a pretty low burden for employers to meet. In Groff, however, the Court held that the employer must meet a significantly higher burden. Specifically, employers must be able to show that a proposed accommodation would impose a burden that is “substantial,” such as by causing the employer to incur “substantially increased costs,” if it wanted to deny an accommodation on the basis of undue hardship. If it cannot show a “substantial“ hardship, then the employer must ordinarily accommodate the beliefs of the employee.

While the exact contours of this definition are still somewhat unclear, the Court is certainly saying an employer must now show much more than a “minimal” hardship in order to legally deny a requested accommodation of an employee’s religious beliefs.

Both employers and employees should be mindful of this new standard, and should seek competent employment counsel for guidance when these issues arise.

Many employers require their employees to sign noncompete agreements as a condition of employment. These agreements purport to prohibit employees from working for a competitor for a period of time after their employment ends, usually a year.

These agreements are enforceable in most states, with certain restrictions. They have to be reasonable in time and scope, and they cannot impose an undue hardship on the employee, or be injurious to the public interest.

In recent years, however, many states have passed laws to place significant limits on noncompete agreements, and even to outlaw them altogether. In Ohio, Kentucky, and Indiana, however, these agreements are still legal and enforceable in most instances.

Now, noncompete agreements are under attack on a national level. The Federal Trade Commission has proposed a rule that would ban noncompetes nationwide, except in very limited circumstances. The FTC is currently receiving public comment on its proposed rule, and a final rule is expected to be issued early next year.

The National Labor Relations Board has also gotten into the act. This Board, which regulates employer-employee relations and the rights of workers to act in concert with one another, recently issued a ruling banning confidentiality clauses and non-disparagement clauses in  employees’ severance agreements. Recently, the general counsel (lead attorney) of the NLRB issued a memorandum expressing the view that noncompete agreements violate the legal right of workers to engage in “concerted activity” about their working conditions, because they effectively prevent workers from resigning, or threatening to resign, over unsatisfactory conditions in the workplace. Although the general counsel’s memorandum does not have the force of law, it signifies that the Board may make that ruling in the near future.

As of now, noncompete agreements are still often enforceable in Ohio and surrounding states. That could be changing very soon, however. Stay tuned!

Mandatory arbitration of employment claims has become almost commonplace in recent decades. The courts have repeatedly upheld the enforceability of arbitration “agreements“ between employees and employers, even though employees typically don’t have any choice in signing them. They are normally given to employees at the time of hire, and employees must sign them in order to get the job and start work.

Lawyers who represent employees in discrimination, harassment, and other employment claims historically have disliked these agreements. They believe that employees often can expect better outcomes from a jury than from an arbitrator. Nevertheless, efforts to fight the enforceability of arbitration agreements have largely been unsuccessful.

With respect to sexual harassment claims, however, that changed this year when a new law went into effect, called the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” The Act is a federal law that applies to all claims arising out of sexual misconduct, regardless of whether the claim is asserted under a federal or state statute, or under the common law. It gives employees who have sexual harassment or sexual assault claims the right to “opt out” of any mandatory arbitration agreements they may have signed during their employment with the employer they are suing.

This is important not only because it means employees can get their sexual harassment claims heard by a jury, but also because lawsuits are public proceedings, whereas arbitration proceedings are confidential and private. The public nature of litigation can provide employers with an added incentive to settle cases that could cause them embarrassment. It also means that data about lawsuits filed against individual employers, and how employers have handled such lawsuits, are available to the general public.

Some employees who have sexual harassment claims may also have other claims against the same employer that are not related to sexual misconduct. For instance the employee may also have a claim of race discrimination, breach of contract, or unpaid overtime. In this instance, the employee’s case may have to be heard in two different forums. The employee can file a lawsuit over the sexual harassment claim, because the Act says an employer can’t force arbitration of that claim. But the employee may still have to go to arbitration to pursue her other claims, in accordance with the arbitration agreement she signed.

Employees who have potential sexual harassment claims, and employers facing such claims, should definitely be aware that mandatory arbitration agreements are no longer enforceable with regard to such claims. This will dramatically change the landscape of litigation when it comes to these types of cases.

 

The Americans with Disabilities Act and state law both require employers to provide reasonable accommodations to their employees, if they are necessary to allow the employees to perform the essential functions of their jobs. These accommodations can take many forms. They can involve supplying equipment, removing barriers, restructuring an employee’s job, modifying his or her schedule, etc.

What if an employee needs a leave of absence because of a disability? For instance, what if they need time off due to a flare up of their condition, or to recover from a disability-related surgery or treatment? This obviously requires the employee to be away from work entirely during the leave of absence. Does an employer have to provide this kind of accommodation, essentially allowing the employee to not work for a while, and then return him or her to the job they held previously?

The answer is “yes,“ as long as certain conditions are met. First, the amount of the leave requested be reasonable, and it cannot be indefinite. The employer is entitled to know approximately when the employee will be able to return. Second, if the leave of absence requested would impose an undue hardship on the employer, the employer does not have to provide it. So if the employer can show that doing without the employee for the period of time requested would do harm to the employer’s business, it may not be necessary in that circumstance for the employer to accommodate employee’s request for leave.

It is important to note that the employer does not have to provide paid leave in these situations, and can require the employee to pay for the cost of keeping their insurance in place while they are off.

Obviously, questions about whether a particular leave of absence is a “reasonable accommodation” can be tricky. Both employers and employees should get qualified legal representation when addressing these kinds of issues. Making mistakes in this arena can be very costly, and can result in significant damages if the wrong choice is made.

If you see a headline about a jury verdict in an employment case, it’s likely to be about a case where an employee was fired. Those are the cases where the impact of discrimination can be the most harmful. A wrongful firing can often cause enormous financial and emotional distress to a family, and the jury verdicts in such cases can sometimes be eye-popping.

But people often forget that federal and state employment laws prohibit discrimination at ALL phases of the employment relationship. They apply at the hiring stage as much as at the termination stage. And they also apply at various stages DURING the employment relationship. When employers make decisions about promotions, for instance, they are required to give opportunities without regard to race, sex, age, disability, etc. The same is true for decisions about pay. Employees cannot be denied raises or other benefits based on these characteristics.

Another example is training. And this can be key. If an employee is denied training opportunities, that in turn can lead to being denied opportunities for advancement later on. The Civil Rights Act of 1964, and comparable state laws, provide that employers must not discriminate when making decisions about which employees will be given the chance to learn new skills.

Employers are often mindful of anti-discrimination laws when preparing to terminate employees. They tend to be most fearful of lawsuits when making those kinds of momentous decisions. They sometimes are less careful, however, when making other kinds of employment decisions, and that lack of care can come back to haunt them. Their hiring, promotion, and pay practices and processes are very important as well, and can expose them to significant legal liabilities if they are not even-handed in their application.

Employers are well-advised to have good legal counsel review these process and procedures And employees should be mindful that they have the right to be free from illegal discrimination not just at termination, but at all phases of the employment relationship.