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.
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).
In a perfect world, when an employee is injured on the job, the employee files for workers compensation, benefits are determined, and the employee returns to work when they are cleared to do so. But sometimes, employers view the risk of increased premiums as an unjust burden and terminate their injured worker for filing a claim. What, then, is an employee to do?
Further, the employee must also file suit within 180 days of the date of the retaliatory act. This is one of the shortest statutes of limitations in the field of employment law.
Because of these very short time periods, employees who believe they have been fired or retaliated against for seeking workers’ compensation benefits should consider contacting qualified legal counsel as soon as possible to assess their case and protect their rights.
Contact Matt Okiishi (513.943.6659) if you may have such a claim.
On Friday, July 18, 2025, the Sixth Circuit issued a ruling reversing a trial court’s dismissal of our client Matthew Warman’s Fourth Amendment unlawful seizure claim against Mount St. Joseph University and its individual police officers. Attorney Matthew S. Okiishi has served as local and co-counsel to Ron Berutti of Murray-Nolan Berutti LLC (licensed in New York, New Jersey, and Kentucky) in this matter.
Mr. Warman ‘s lawsuit alleges that, while a student at MSJU, he was invited the campus police station to discuss his refusal to take the Covid-19 vaccine on religious and medical grounds. This “meeting” quickly turned sour. Over the course of an hour, Mr. Warman was taken to a back room and told, among other things, that he was not free to leave, that he was an “[expletive] idiot,” “should get a new religion,” that his “beliefs were wrong,” and should “grow the [expletive] up and get the shot.”
Based on these facts, the Court of Appeals held that this conduct plausibly established a violation of his Fourth Amendment rights. The Court further held that MSJU and the individual officers involved could be subject to liability as “state actors” under 29 U.S.C. §1983, and that the university and officers were not entitled to qualified immunity at this stage of the proceedings. The Court further cast doubt on whether privately employed campus police officers can avail themselves of qualified immunity. The matter has been remanded to the trial court for continued litigation.
A copy of the decision in the case styled Warman v. Mount St. Joseph Univ., et al., is linked here. The opinion has been recommended for full publication, signifying its importance and significance.
Prior to June 5, 2025, an employee suing for discrimination in this Circuit was required present a prima facie case showing that: 1) they belong to a protected class; 2) they were qualified for the job; 3) they experienced an adverse employment action; and 4) the employer treated similarly situated employees outside their protected class more favorably. But members of a “majority-group” (think: White, male, heteronormative, and/or Christian) suing in the Sixth Circuit was required to show an additional element, namely that there were “background circumstances” that his was the “unusual” employer that discriminated against the majority.
Now, however, the Supreme Court of the United States has reversed this longstanding requirement. Writing for a unanimous court in in Ames v. Ohio Dept. of Youth Services, No. 23-1039, Justice Ketanji Brown Jackson found that this rule “cannot be squared with the text of Title VII or prior precedent.” The Court reasoned that because Title VII bars discrimination against any individual on the basis of protected characteristics and does not distinguish between minority or majority groups, there is no room under the statute for a special pleading or proof standard to be imposed on majority-group plaintiffs.
Without the heightened “background circumstances” requirement, majority-group employees who believe that they were discriminated against on the basis of their race, gender, national origin, or religion only have to prove the same prima facie case as minority employees.
Whether juries will need to be “sold” on the idea that “reverse discrimination” is possible remains to be seen. But for now, the path for majority-group employees to reach a jury trial has been made easier.
On August 9, 2024, a panel of the United States Court of Appeals for the Sixth Circuit held for a former public employee Eric Noble, represented by Matt Okiishi of our Employment Law group, that his posting of a meme critical of a well-known protest movement while on his private time was “protected speech” under the First Amendment.
While the public employer asserted that it terminated Mr. Noble because it “anticipated disruption,” the panel determined that this belief failed to be “objectively reasonable.” The panel also noted that the public employer’s decision to engage in the same debate as Mr. Noble cast “doubt on its motive for firing him,” undercut its interest in maintaining workplace harmony, and violated the First Amendment’s prohibition against allowing “one side of a debate from using the government to cancel the other side.”
The panel concluded that because Mr. Noble was terminated in retaliation for exercising his First Amendment speech rights, and prior precedent “does not give the Library carte balance to take away Mr. Noble’s means of livelihood based on his speech,” he was entitled to summary judgment in his favor. A copy of the decision in the case styled Eric Noble v. Cincinnati & Hamilton County Public Library, et al. is linked here.
The Court has recommended this victory for full publication, signifying that it views the case as one of great importance and significance. This victory also comes just three years after another free speech victory by our firm, Barger v. United Bhd. of Carpenters & Joiners of Am., 3 F.4th 254 (6th Cir. 2021) (discussed here).
On April 23, 2024, the Department of Labor announced a final rule increasing the salary threshold for the overtime exemption of administrative, executive, and professional employees. Beginning on July 1, 2024, the salary threshold will increase from $35,568 to $43,888 per year. The threshold will again increase to $58,656 per year on January 1, 2025. The DOL plans to review these thresholds in 2027 and every three years thereafter to determine additional increases.
The highly compensated employee threshold for overtime exemption is also increasing from $107,432 to $132,964 after July 1, 2024 and $151,164 after January 1, 2025.
Assuming the rule passes constitutional muster, employers who pay salaries below the prescribed thresholds may find themselves liable for overtime, additional damages, and attorney fees if the employee works over 40 hours in a week, even if the employee would otherwise be considered exempt from the overtime requirements. To protect against this, employers should engage competent legal professionals to audit their time records, job duties, and salary levels to ensure compliance with the new rule before January 1, 2025.
On April 23, 2024, the Federal Trade Commission (“FTC”) released its long-awaited rule concerning the validity of employee noncompete agreements. Following its effective date (projected to be 120 days after April 23, noncompete agreements will be considered a restraint of trade except where they are executed in connection with the sale of a business.
All existing noncompete agreements, with the exception of those signed by “senior executives” (defined as policy-making employees earning at least $151,164 in annual compensation) in existence prior to the rule’s effective date, will retroactively become unenforceable, and they will not be permitted going forward.
The rule does not apply to noncompete agreements that were breached prior to the effective date. So cases currently in court over an alleged breach are not affected by the new rule.
The new FTC rule will also impose an affirmative duty on all employers with existing noncompete agreements to notify workers that those agreements are no longer in effect by the effective date. Because the duty to notify is triggered at the rule’s effective date, employers should make arrangements to ensure compliance with the new rule.
There will likely be legal challenges to the FTC’s authority to make this Rule, so stay tuned. But if it survives it will be a true game changer for American workers.
In order to best serve our clients, the Finney Law Firm’s Employment Law team closely tracks proposed Ohio, Kentucky, and federal employment legislation. The Ohio General Assembly and Kentucky Legislature are currently debating small, yet significant, changes to their employment laws.
Ohio
In Ohio, Senate Bill 47 would amend Ohio’s wage and hour statute, O.R.C. 4111.01, et seq., to incorporate the federal “Portal to Portal Act” into Ohio law. Should the bill pass, the proposed O.R.C. 4111.031 Ohio would explicitly eliminate employees from being compensated for time travelling to and from the place of performance, activities that are preliminary to or postliminary to the principal activities, and activities requiring insignificant or de minimis time. The rule would not apply where the activities are preformed either during the regular work day or during prescribed hours, or at the direction of the employer.
As S.B. 47 merely harmonizes Ohio law with the federal Fair Labor Standards Act, most Ohio employers should be unaffected by the changes. However, all employers should have a knowledgeable employment attorney review their policies and procedures for the handling of out of office work, especially in regards to emails. While a simple review of an email outside of work hours is likely de minimis time, an email requiring a substantive response or directing to an immediate task would likely not be exempt time under the proposed O.R.C 4111.031.
Kentucky
Kentucky is currently one of 26 states with laws that prohibit discriminating against smokers who otherwise comply with workplace rules. Senate Bill 258 would eliminate protections for smokers from K.R.S. 344.040, allowing employers to, among other things, require an employee or job applicant to abstain from smoking or using tobacco during or outside of the course of employment. Should the bill pass, Kentucky employers would be permitted to modify their handbook and hiring policies to exclude smokers and create a generally healthier work environment.
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Please contact Stephen E. Imm (513.943.5678) of Matthew Okiishi (513.943.6659) for help with an employment law issue.
On June 15, 2020, the Supreme Court of the United States, in Bostock v. Clayton County, Georgia, held that gay and transgender employees may not be fired merely for being gay or transgender. In a 6-3 decision, the Court held that termination on the basis of gender identity or sexual orientation violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of sex, race, color national origin, or religion.
The Court only addressed the issue of whether termination on the basis of gender identity or sexual orientation is prohibited under Title VII. However, employees and small businesses should be aware that it is a near certainty that all forms of discrimination on the basis of sexual orientation or gender identity, including harassment, pay disparity, and discrimination in hiring and promotion decisions, are now prohibited under Title VII.
Title VII only applies to employers with more than 15 employees, and current Ohio and Kentucky jurisprudence has held that their respective antidiscrimination laws (Revised Code 4112.02, et seq. and Kentucky Revised Statutes 344, et seq.) do not prohibit discrimination on the basis of sexual orientation or gender identity. As a result, it is possible that businesses with less than 15 employees will not be affected byBostock. However, Ohio and Kentucky courts normally interpret their states’ antidiscrimination laws in a manner consistent with the interpretation of Title VII. Therefore, there is a very good chance that the protections now afforded to gay and transgender persons by Title VII will also be applied to smaller employers in Ohio and Kentucky.
The employment attorneys at the Finney Law Firm take pride in staying up-to-date with recent developments in employment law, including the recent Covid-19 leave requirements and expansion of Title VII protection. Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. For assistance with these matters, consult Matthew S. Okiishi (513.943.6659) and Stephen E. Imm (513.943.5678).
On April 6, 2020, the Department of Labor published its temporary rules for the Families First Coronavirus Response Act (“FFCRA”). Our firm has written prior entries regarding the FFCRA and Covid-19’s impact on the workplace, and I previously noted that a significant portion of the FFCRA would require additional federal guidance to understand. The rules define qualifying reasons for leave, employer and employee notice obligations, and the small business exemption.
Key Definitions
Under the new rules, a “Child Care Provider” is a provider who receives compensation for providing child care services on a regular basis and is licensed under state law. However, a Child Care Provider does not need to be compensated or licensed if they are a family member or friend who “regularly cares for the employee’s child.”
“Place of Care” means the physical location where care is provided for the Employee’s child while the employee works for the employer.
“Son or Daughter” includes biological, adopted, and foster children. It also includes stepchildren, legal wards, or the child of a person standing in loco parentis. Son or Daughter can also include persons over the age of 18 when that person is incapable of self-care because of a mental or physical disability.
“Subject to a quarantine or isolation order” includes the “shelter in place” or other general orders issued by states and municipalities in response to the Covid-19 epidemic, and includes when a governmental authority has advised certain categories of citizens to shelter in place.
Application to Emergency FMLA Leave
The qualifying reason for Emergency FMLA leave is narrow, applying only to employees who are unable to work or telework due to the need to care for a Son or Daughter if the child’s school or Place of Care is closed or the Child Care Provider is unavailable due to the Covid-19 pandemic. But as stated previously, the definition of a “Child Care Provider” is quite broad, including family members and other persons who regularly care for a child out of a neighborly or familial bond. Similarly, a “Son or Daughter” includes the full spectrum of children and persons who are regularly under the care of a parent. As such, it would be improper for an employer to deny EFMLA leave to an employee because the child is not necessarily a biological relative or the Child Care Provider is not a licensed day care.
Paid Sick Leave Implications
The six reasons for paid sick leave have also been impacted by the new regulations:
1. Subject to a federal, state or local quarantine or isolation order related to COVID-19.
Employees are only considered to be “subject to a quarantine or isolation order” when, but for being subject to the order, they would be able to perform work that is otherwise allowed by their employer. When the order shuts down the employer’s operations, an employee is not entitled to paid sick leave.
2. Advised by a health care provider to self-quarantine due to COVID-19 concerns.
A health care provider has advised self-quarantine only when the advice is based on a belief that the employee (1) has Covid-19; may have Covid-19, or the employee is particularly vulnerable to Covid-19 and (2) this advice prevents the employee from being able to work at the employer’s workplace or through telework.
3. Experiencing COVID-19 symptoms and seeking medical diagnosis.
The employee must be experiencing a fever, dry cough, shortness of breath, or any other recognized Covid-19 symptom from the CDC, and must be seeking a medical diagnosis. Paid sick leave under this reason is limited to the time the employee is unable to work because of their affirmative steps to obtain the diagnosis.
4. Caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns.
“Individual” is an immediate family member, person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for them. Employees may only take leave under this reason if, but for a need to care for the individual, the Employee would be able to perform work for their employer at the workplace or through telework.
5. Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
Subject to the same EFMLA definitions, an employee may only utilize this reason if no other suitable person is available to care for the Son or Daughter during the period of such leave.
6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (“HHS”) in consultation with the Secretary of the Treasury and the Secretary of Labor.
At the time of this posting, it does not appear that HHS has provided other “substantially similar conditions.”
Intermittent leave and Notice
Employees may only take intermittent leave under the FFRCA’s Emergency FMLA or paid sick leave provisions when the employer agrees. However, an employer may be required to grant “intermittent” leave when an employee is actively seeking a medical diagnosis, as doctor’s visits typically require employees to leave their worksite or telework desk.
Because of the rapid development of Covid-19 symptoms and an employee’s need for leave, the Department of Labor is not requiring employees to notify employers about their need for emergency FMLA or paid sick leave as soon as practicable. Instead, the Department generally advises employers to be proactive in notifying employees of the failure to give notice and an opportunity to provide documentation prior to denying the request for leave. Notice may only be required after the first workday where the employee takes EFMLA or paid sick leave.
From a content perspective, it is reasonable for an employer to require enough information to determine whether the requested leave is covered. This documentation is generally limited to: (1) the employee’s name; (2) dates for which leave is requested; (3) qualifying reason; and (4) a statement (oral or written) that the employee is unable to work because of the qualified reason for leave. For specific reasons, such as quarantine, doctor’s orders, or care for a child, additional documentation may be required. Employers are also permitted to seek information that is needed to support tax credits pursuant to the FFCRA.
Small Business Exemption
Employers with less than 50 employees may be exempt from providing paid sick leave or emergency FMLA leave when the imposition of such requirements would “jeopardize the viability of the business as a going concern.” An employer is entitled to this exemption when an authorized officer has determined that:
The leave requested would result in the business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services by the employee or employees requesting leave and these labor or services are needed for the small business to operate at a minimal capacity.
Small businesses must document an exemption determination internally and maintain the records in its files.
Conclusion
The FFRCA has changed the way business is done in this country, albeit on a temporary basis (The FFRCA sunsets on December 31, 2020). In approaching requests for leave, the law and regulations contemplate that employers will engage in a thoughtful and well-documented manner and avoid knee-jerk reactions or blanket assertions of “business viability.” Employers of all sizes would be well-served to engage competent legal counsel to assist in navigating the FFRCA’s new requirements.
The Finney Law Firm’s labor and employment attorneys are well-versed in the rights and obligations of both employers and employees, including the rapidly evolving COVID-19 changes. For assistance with these matters, consult Matthew S. Okiishi (513.943.6659) and Stephen E. Imm (513.943.5678).
