Ohio Supreme Court Decides Whistleblower Statute Does Not Protect Governmental Employees Who Report Third-Party Violations.

Ohio's general "whistleblower" statute, R.C. 4113.52, protects employees from discipline, including termination, if they discover and report suspected felonies, among other things, by their employer during the course of their employment. What if, however, a local governmental  employee discovers and reports felonies by a company over which the local government has jurisdiction? Is the reporting employee a whistleblower under R.C. 4113.52?  No is the answer according to the Ohio Supreme Court. The issue is whether the employee reported crimes by his own employer, not by a third-party.  The plaintiff’s wrongful termination in violation of public policy claim was not addressed by the Court. The appellate court had reversed summary judgment for the employer on the whistleblower claim but (incorrectly, in my opinion) affirmed summary judgment on the wrongful termination claim based on a failure to satisfy the jeopardy element, on the grounds that the plaintiff had an adequate remedy under the whistleblower statute. The Ohio Supreme Court chose not to accept an appeal from the court of appeals' wrongful termination decision.

Lee v. Village of Cardington, 2014-Ohio-5458.

NLRB Issues Complaints Against McDonald's.

Remember the nationwide protests by McDonald’s fast food employee in the last few years? Apparently, McDonald’s took adverse employment actions against many employees who participated in these protests and other actions aimed at improving their wages and working conditions. On December 19, 2014, the National Labor Relations Board issued complaints against McDonald’s franchisees and their franchisor, McDonald’s USA, LLC. Significantly, the NLRB found that franchisees and McDonald’s USA, LLC are joint employers due to the degree of control exerted by the latter control over local franchisee operations. The NLRB had for years decided that franchises could only be labeled joint employers if they set wages and employed workers.  NLRB Page.

Failure To Report Racially Hostile Work Environment Dooms Claim.

Despite a clear case of a racially hostile work environment, plaintiff’s claim was dismissed on summary judgment where he failed to utilize the remedies contained in an employee handbook to address the situation.

Baker v. Supreme Beverage Co., Inc., 2:13-cv-00222 (N.D. Ala., Dec. 15, 2014).

Work Breaks Of Short Duration Count Towards Overtime.

         Plaintiffs were logged out of the employer’s time-keeping system when taking short breaks. The Fair Labor Standards Act requires employers to compensate employees for all “hours worked.” 29 C.F.R. § 785.18 (1961) provides that rest periods of 5 to about 20 minutes constitute “hours worked.”  See also Chapter 31a01(a) of the Department of Labor’s (“DOL”) Field Operations Handbook; DOL Wage and Hour Division Opinion Letter (Dec. 2, 1996), 1996 WL 1005233. But see Chapter 31a01(c) of the DOL Field Operations Handbook (Dec. 15, 2000)(three prong test for determining when unauthorized extensions of approved breaks are not counted as hours worked). Interpreting these various provisions, the Court held that all rest periods of short duration must be compensated except for breast milk expression breaks (29 U.S.C. § 207(r)) and in the narrow circumstances specified in Chapter 31a01(c) of the Field Operations Handbook.

Lillehagen v. Alorica, Inc., SACV 13-0092 (C.D. Cal., Dec. , 2014).

Plaintiff Survives Summary Judgment In USERRA Case.

A plaintiff has survived summary judgment in a lawsuit brought under the Uniformed Service Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4311.  Plaintiff was a reservist with the United States Marine Corps. In September 2012, the defendant employer promoted plaintiff to a supervisory position. Following his promotion plaintiff’s superiors made comments critical of his time off due to his military obligations, according to the deposition testimony of a co-plaintiff.  At a meeting in December 2012 an upcoming layoff was discussed among managers. Plaintiff was chosen for layoff and his last day of employment was later in December. Plaintiff was on active reserve duty between the time of his promotion in September and his termination in December.

The court noted that in a USERRA case a plaintiff must demonstrate that military service was a motivating factor in the termination. In a reduction in force case a plaintiff must also come forward with additional direct, circumstantial or statistical evidence indicating that the employer singled him for discharge for impermissible reasons. The employer must then produce evidence to show that it would have made the decision anyway, for a valid reason. In this case the court found that plaintiff had met his initial burden of demonstrating that he was singled out for discharge based upon his military status, based on evidence that plaintiff’s work issues surfaced only after he had performed reservist duties . The court then determined that reasonable minds could differ on whether plaintiff was terminated for valid performance reasons or singled out because of his military status.

Vaughn v. Titan International Inc., 3:13 cv 409 (N.D. Ohio, Dec. 5, 2014)

Attorney-Client Privilege Waived, Invoices and Fee Agreement Discoverable.

Plaintiff testified at deposition that his father-in-law was present during all of his meeting with counsel and that plaintiff forwarded a fee arrangement and progress invoices received from his counsel to his father-in-law.  The Court held that the attorney-client privilege was waived because the presence of plaintiff’s father-in-law was for support purposes as opposed to being necessary to facilitate the attorney-client relationship. The Court also decided that federal privilege law applied because plaintiff invokes federal question jurisdiction, notwithstanding plaintiff’s supplemental state law claim under Ohio Revised Code 4112.02. Moreover, the Court held that the the fee arrangement and invoices were discoverable.

Lucas v. Gregg Appliances, Inc., 1:14-cv-70 (W.D. Ohio, Dec. 5, 2014).

Exhaustion of Remedies Requirement of R.C. 4112.14(C) Does Not Apply to Disability Discrimination Claims.

             The Ohio Eleventh District Court of Appeals has decided that disability discrimination plaintiffs do not have an obligation to exhaust available administrative remedies such as arbitration under a collective bargaining agreement. Plaintiff Worley, a teacher, sued Defendant Newton Falls School for disability discrimination under Ohio Revised Code 4112.02. Defendant raised R.C. 4112.14(C), arguing that plaintiff ‘s claim was barred because she had failed to arbitrate her discharge pursuant to a collective bargaining agreement. Plaintiff countered that  R.C. 4112.14(C) applied only to age discrimination claims.

             R.C. 4112.14(C) states:

The cause of action described in division (B) of this section [for age discrimination] and any remedies available pursuant to sections 4112.01 to 4112.11 of the Revised Code shall not be available in the case of discharges where the employee has available to the employee the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause.

             The bolded language suggests the argument made by Defendant – exhaustion is required of not only age discrimination plaintiff but all other plaintiffs bringing suit to enforce their rights under R.C. 4112.02. That is indeed what R.C. 4112.14(C) appears to say. Fortunately for plaintiffs that is not what the majority of courts have decided. The central theme running through these cases is the plaintiff employment lawyers’ dear friend, R.C. 4112.99. Thus, read these cases: Luginbihl v. Milcor Ltd. Partnership, 3rd Dist. Allen No. 1-01-162, 2002-Ohio-2188 ("R.C. 4112.14(C) is not applicable to the case at bar nor to any non-age discrimination claim brought pursuant to R.C. 4112.99.*** "[n]owhere in the language or the interpretation of the statute could it be said that R.C. 4112.14(C) applies to actions brought pursuant to R.C. 4112.99."); Braud v. Cuyahoga Cty. Career Ctr, N.D. Ohio No. 1:06 CV 1059, 2007 U.S. Dist. LEXIS 22526, 16 (Mar. 27, 2007) ("[t]here is no requirement that an administrative process be followed *** prior to bringing suit under §§ 4112.02 and 4112.99 for handicap discrimination"); Dworning v. Euclid, 119 Ohio St.3d 83, 2008-Ohio-3318, 892 N.E.2d 420 ("an individual [may] file a civil action to remedy discrimination without having invoked the administrative remedies available through the OCRC [and] "the filing of a charge of discrimination with the OCRC does not preclude a person from filing a civil action under R.C. 4112.99. * * * [A] public employee alleging employment discrimination in violation of R.C. Chapter 4112 need not exhaust the administrative remedy of appeal to a civil service commission before pursuing the civil action allowed in R.C. 4112.99.") See also Elek v. Huntington Natl. Bank, 60 Ohio St.3d 135, 137, 573 N.E.2d 1056 (1991); Pingle v. Richmond Hts. Local School Dist. Bd. of Ed., N.D. Ohio No. 1:12-cv-02892, 2013 U.S. Dist. LEXIS 141194, 14 (Sept. 30, 2013) ("§ 4112.14(C) is properly limited to age discrimination claims, as its statutory history and placement in the 'age discrimination by employers' statute would suggest") Contra Hopkins v. United Parcel Serv., Inc., 1st Dist. Hamilton No. C-990392, 2000 Ohio App. LEXIS 443 (Feb. 11, 2000) ("[t]he plain language of [R.C. 4112.14(C)] indicates the General Assembly's intent to bar civil actions for age discrimination as well as 'other remedies available under this chapter' when the employee has the ability to arbitrate his claims.")

Worley v. Newton Falls Exempted Village School Board of Education, 2014-Ohio-5385, 2014-T-0024 December 8, 2014 Eleventh District, Trumbull

Supreme Court Reinforces Summary Judgment Standard in Section 1983, Qualified Immunity Context

From the United States Supreme Court this week comes a case that makes you scratch your head wondering why justice took so long to arrive for ordinary citizens.  Imagine you are in your home after midnight on New Year's Day when you hear a commotion outside your door.  You open the door to find your teenage son lying on the porch and a police officer standing over him with his gun drawn.  The officer tells you your son stole the car parked in front of your house, an obvious misunderstanding because you own the car. You tell the officer that the allegedly stolen car belongs to you.  

Two more officers arrive on the scene.  The first officer tells your wife to stand against the garage door. When she objects the officer, according to your family, grabs her arm and slams her against the garage door. When your son tells the officer to get his hands off his mother, the officer fires three shots. A bullet collapses your son's right lung and pierces his liver, thus ending his promising professional baseball career and an injury that causes your son pain on a daily basis.

Now imagine that the trial court judge and two of three court of appeals judges decide that the officer was acting in the course of duty and is immune from being sued for his actions. How would you feel about that?

Fortunately, the United States Supreme Court breathed life back into the case and given the family its day in court. In a per curiam opinion with Justices Scalia and Alito offering a separate concurring opinion, the Court vacated the court of appeals' decision in this Section 1983 case. The Court reiterated the legal principles that guide a court's analysis of a state actor's defense of qualified immunity, a doctrine that "balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 129 S.Ct. 808, 815 (2009). When evaluating the qualified immunity defense on summary judgment, courts must first determine whether there is evidence that the defendant's conduct violated a federal constitutional right. This inquiry necessarily requires a balancing between the nature and quality of the intrusion on the plaintiff's constitutional rights against the importance of the governmental interest justifying the intrusion. Here, the constitutional right at issue was the Fourth Amendment's guarantee of freedom from unreasonable searches and seizures. The governmental interest was the officer's right to protect himself. Next, courts must decide whether the right was clearly established at the time of the alleged violation. Officers cannot be liable when the right's contours are murky or have not been defined or established by the courts.

The high Court did not decide that the officer is liable for his actions. Instead, the court decided the case based on the straightforward procedural rule that when deciding a motion for summary judgment a court must view the evidence in a light most favorable to the party opposing the motion. The Court recognized several factual disputes arising from the evidence presented by the parties, all of which focused on whether the officer acted in a reasonable manner under all of the surrounding circumstances, and whether he had a reasonable belief that he needed to protect himself. Genuine issues of material fact arose from contradictory evidence offered by the parties -- whether the porch was dimly lit, whether the victim's mother acted out of control, whether the victim rose to feet to protect his mother or whether he merely rose to his knees from off the ground. In the end, the Court decided that these and other factual disputes precluded summary judgment.

The case will now go back to the trial court for further proceedings.  You can read the Supreme Court's opinion here: Tolan v. Cotton, 572 U.S. ___ (May 5, 2014).

Seventh Circuit Rejects National Origin Discrimination Claim

Plaintiff Cung Hnin is of Chin ethnicity from the country of Myanmar.  He began working for defendant TOA (USA) LLC on the production floor in 2007 at TOA's automobile metal stamping plant . A female co-worker, Brock, reported to management that Hnin was making comments and gestures suggesting she was having a sexual relationship with a male co-worker.  Although not acknowledged in the court's opinion, the harassment was probably not severe or pervasive enough to give rise to a claim for unlawful sexual harassment.  Nevertheless, whenever a co-worker complains about harassment on the basis of sex, the employer has a legal obligation to investigate and take prompt remedial action.  Many companies faced with such complaints deal with it by terminating the offending employee.  Such was the the case here.  The company investigated by interviewing witnesses who supported her report.  The company also interviewed Hnin.  He denied the allegations.  The company terminated his employment on the spot during the interview, perhaps because he raised his voice and became angry, which corroborated reports of other witnesses that he was a bully.

Hnin sued the company for national origin discrimination.  His claim failed because he had no evidence that similarly-situated American born employees had been treated more favorably than he was.  All but one of these comparators had not been accused of sex harassment. The remaining comparator was terminated one day after his interview, which did not logically equate to more favorable treatment than Hnin, who was terminated during his interview.

The employee accused of sexual harassment often faces the cruel reality that if terminated there is little that can be done to reverse the decision. It should have been apparent to Hnin's lawyer that rather than litigating through the summary judgment stage the best course of action was to negotiate improvement to Hnin's personnel file, such as treatment of his separation from employment as a resignation, agreement to a neutral (or positive) reference when prospective employers made contact, a non-disparagement provision, and then perhaps a severance payment.  This outcome is far better than litigating a weak case and seeing it dismissed on summary judgment. 

Boston Police Department's Use of Hair Samples to Drug-Test Might Discriminate Against African-Americans

This week we get a "hairy" case from the United States Court of Appeals for the First Circuit. African-American former Boston police officers, a former cadet and others who tested positive for cocaine use claimed that the department's use of hair samples to test for drug use had a disparate impact on blacks. The plaintiffs denied any use of illegal drugs and argued that hair common to many blacks resulted in false-positives. The trial court granted summary judgment to the department, but the court of appeals reinstated the case.

Disparate impact cases do not require a showing that the employer intentionally discriminated. The legal theory underlying disparate impact is that a specific employment practice has greater impact on the protected class. Statistical analysis is usually required to establish these claims.  The plaintiffs presented statistical evidence that the results of hair sample testing over an 8-year period were not due to random chance, meaning that the use of hair samples could be the factor that caused more blacks than whites to appear to be using illegal drugs.  

The court of appeals ultimately sent the case back to the trial court to finish what remained of the legal analysis. All the court of appeals did was decide that plaintiffs had presented a prima facie case of disparate impact discrimination.  On remand, the trial court will have to determine whether the department's drug-testing program advances its legitimate goal of weeding out illegal drug users, and then whether plaintiffs have proved the department's failure to adopt an available alternative method of testing that advances the legitimate goal and reduces the disparate impact on blacks.  Jones v. City of Boston, Case No. 12-2280 (1st Cir., May 7, 2014).

Walgreens Assistant Store Manager, 58, Loses Age Discrimination Case

In a rather straightforward application of employment law analysis, the United States First Circuit Court of Appeals decided that a former Walgreens manager had not presented sufficient evidence of age discrimination for his case to proceed to trial.  Manager Adamson was written up for poor customer service on two occasions.  For the prior three years on the job his record was clean. The first write-up resulted from a customer complaint that no one was available to take a product return.  Adamson was in the stockroom, knew he was needed up front but decided to finish what he was doing in the back of the store.  In response to the write-up he acknowledged that he used poor judgment. Moral of that short story, if you're a manager and a customer needs you up front, go up front and take care of the customer.  The customer always comes first.  Adamson momentarily at least forgot that golden rule. He received a final written warning.

Not quite four months later, Adamson forgot that rule again.  He was in the back office trying to contact an employee who did not show up for work.  No one was up front just after the store opened.  Another customer entered the store to make a return.  Adamson appeared shortly after the disgruntled customer left the store.  Video recordings confirmed the event. Adamson's second lapse resulted in his termination. The district court (the first level trial court) granted Walgreens summary judgment.

The appeals court's decision is a study in applying the proper legal framework to a discrimination claim. When a plaintiff lacks direct evidence of discrimination (e.g., a supervisor's comment such as "We're letting you go because you're too old to do the job," which is rare), courts use the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  In an age discrimination case, the first stage of this framework requires the employee to establish a "prima facie" case by producing evidence that shows: (1) he was at least forty years old when he was fired; (2) his job performance met the employer's legitimate expectations; (3) he suffered an adverse employment action such as a firing; and (4) the employer filled the position, thereby showing a continuing need for the services that he had been rendering." [Note: The fourth step of the prima facie case differs among the federal circuit courts somewhat, as well in state courts. In Ohio's state and federal courts, the replacement prong requires a showing that a substantially younger employee replaced the plaintiff, not just that the plaintiff was replaced.] Presenting evidence for all four steps gives rise to a rebuttable presumption of discrimination and shifts the burden of production -- but not the burden of persuasion -- to the employer to articulate a legitimate, non-discriminatory reason for its decision. If the employer meets this burden, the focus shifts back to the plaintiff, who must then show, by a preponderance of the evidence, that the employer's articulated reason for the adverse employment action is pretextual and that the true reason for the adverse action is discriminatory.

Walgreens disputed the second element, arguing that Adamson failed to meet the company's legitimate expectations. The courts of appeals assumed that Adamson had satisfied this element because the main dispute was whether Walgreens' stated reason for its termination decision was the real reason or whether it was a pretext for discrimination.  As is almost always the case, the court found that Walgreens had stated a legitimate basis for termination.  The court then analyzed plaintiff's evidence of pretext and rejected all of it. Adamson pointed a factual dispute about how long the second customer was kept waiting.  The important point for the court was not the amount of time the customer waited, but that Adamson left the front of the store after the doors had opened with no coverage up front.   Adamson presented no evidence that the length of time he was in the back of the store played a part in the termination decision. 

Sometimes the best evidence of pretext is that the employer did not uniformly apply its policies and procedures between members and non-members of the protected class. Adamson pointed to younger employees who had not been fired for poor customer service, but the evidence failed to show pretext because they had not had two occurrences whereas Adamson was fired for his second occurrence of poor customer service.

This case serves as a reminder that discrimination cases are often won or lost at the pretext stage. I have learned over the years that the critical junction of the case is when the decision-makers -- the persons involved in the termination or other adverse employment action -- are interrogated at deposition.  This is the best and perhaps only opportunity to gather evidence to establish a question of fact regarding pretext.  If such evidence is obtained and presented to the court in response to the employer's motion for summary judgment, the court should deny the motion.  And that's when good things can happen, because the employer then knows that it will have to go to trial where it can actually lose the case.  Case values rise after denial of summary judgment and settlement becomes a real possibility. This is not to say that trial should be avoided.  Rather, it's recognition that trials present lots of uncertainty and that yes, you as the plaintiff can lose too.  Of course, I think I can win any case at trial, which is a trait to be valued in a lawyer.  But I have learned over the course of four decades of litigation and trial work that a client needs to understand the realities of a courtroom foray. Sometimes settling for less than everything you want is the best course.  In the end, though, the client makes the decision based on the advice of counsel.  

You can read the full case decision here.

Law Firm Discrimination Study Finds Confirmation Bias.

Cleveland Employment Law Blog - Law Firm Discrimination Study Finds Confirmation Bias.

According to a just released study, law partners graded the same writing sample based at least in part on the race of the writer. The study published by the consulting firm Nextions, "Written in Black and White: Exploring Confirmation Bias in Racialized Perception of Writing Skills," used perhaps a somewhat flawed methodology. and does not purport to have statistical significance. On its face, though, the study does seem to confirm "confirmation bias," which it describes as "[a] mental shortcut – a bias – engaged by the brain that makes one actively seek information, interpretation and memory to only observe and absorb that which affirms established beliefs while missing data that contradicts established beliefs."

Five partners from five different law firms wrote a legal research paper supposedly prepared by two, third year litigation department associates. To it were added spelling or grammar mistakes and substantive technical writing errors. The memo was distributed to sixty law firm partners at twenty-two different law firms who had been told they were part of a writing analysis study. Twenty-one were members of a racial/ethnic minority and thirty-nine were Caucasian. Everyone received the exact same memorandum to analyze

This is where it gets interesting. Fifty percent of the partners received a memo written by a "Thomas Meyer," a white graduate of New York University. The other half were informed that the author was "Thomas Meyer," a black graduate from the same school. The reviewers also received identical research material supporting the memorandum.

The black Thomas Meyer averaged a 3.2/5.0 rating whereas the white Thomas Meyer averaged a 4.1/5.0 rating. Reviewer comments were consistently more positive for the white Thomas Meyer. For example, reviewers of the supposedly white=written memorandum made comments like “generally good writer," “has potential” and “good analytic skills.” Comments for the black Mr. Meyer included “needs lots of work,” “average at best” and “can’t believe he went to NYU.”

Sure, the methodology of the study can be criticized, but the results are reality based. Racism exists. The results might not confirm outright racial animus. They do highlight confirmation bias in writing skills; in other words, a bias that makes one look for information that affirms established beliefs while glossing over data that contradicts them -- confirmation bias.

Massachusetts Moves to Eliminate Non-Competition Agreements.

Massachusetts is on the move to eliminate non-competition agreements.  Non-competition agreements are used by employers supposedly to prevent competition from former employees who might use information gained during employment.  The purpose of a non-competition agreement is to prevent unfair competition. More often, it prevents the former employee from earning a living.  In Ohio, courts have the power to rewrite such agreements.  The general rule in Ohio is that an agreement that prevents former employee competition for two years within a reasonable geographic area will be upheld.

Massachusetts Governor Deval Patrick has submitted legislation to get rid of non-compete agreements in favor of adoption of the Uniform Trade Secrets Act (UTSA).  In essence, the UTSA forbids former employees use of information developed by a company that is unavailable to other companies. Classic examples of a trade secret  include the Coca-Cola formula and Colonel Sanders' secret herbs and spices. Allowing employees with access to such trade secrets to leave the company, set up shop and use the secret is and should be unlawful.  But when it comes to things such as a customer list that can be duplicated by searching for customers on the internet or a business-to-business phone book, the the non-compete restriction tends to prevent legitimate competition.  

It's about time for other states to take the same action as Governor Patrick has in Massachusetts.  

MetLife Settles with Employees for $1.97 Million.

Cleveland Employment Lawyer David W. Neel

Employment Law – MetLife Settles with Employees for $1.97 Million.

A plaintiff’s class has submitted a request for preliminary approval of a settlement with MetLife for $1,970,000.  In a case before the United State District Court for the Central District of California, a class representing MetLife financial service representatives alleged that MetlIfe made improper withholdings for office expenses and forfeiture of earned commissions upon termination from employment.  The court must approve the settlement before it becomes final and enforceable. Johnson v. MetLife Inc., Case No. 8:13-cv-00128 (Plaintiff’s Memorandum filed Apr. 11, 2014)

David W. Neel, Attorney at Law

Company Shareholder-Director Not an Employee Entitled to Employment Law Protections.

Casa Marshall and her four brothers inherited a trucking company from their father.   Casa had started working for her father as a driver.  After his death she became the company’s office manager and human resources officer.  Casa and her brothers were directors of the company and had equal voting rights.  Casa later became the company’s vice-president. 

Casa became ill and took time off for surgery.  Following her return to work her brothers became dissatisfied with Casa’s job performance and eventually terminated her employment.  Casa filed a complaint with the Equal Employment Opportunity Commission (EEOC), which declined to prosecute her case.  She filed suit in federal court claiming that the company had retaliated against her for exercising her rights under the Family & Medical Leave Act (FMLA), and for gender and disability discrimination under Title VII, the federal anti-discrimination law.

The district court granted the company’s motion for summary judgment because Casa was not an “employee” within the meaning of the FMLA and Title VII, which defines an “employee” as an individual employed by an employer.  The court stated that an employer “is the person, or group of persons, who owns and manages the enterprise [who] can hire and fire employees, can assign tasks to employees and supervise their performance, and can decide how the profits and losses of the business are to be distributed [and] are those whose authority and interests are so aligned with the business as to render them the legal personification of the business, i.e., principals rather than agents.”  Because Casa fell within the definition of employer, the court decided that she was not an employer and, therefore, not protected under Title VII or the FMLA. (Marshall v. G.E. Marshall, Inc. Case No. 2:09-cv-198 APR (N.D. Ind., April 14, 2014).

David W. Neel - Employee Rights Attorney

Employment Law - Employees have rights too.

Were you wrongfully terminated from your employment? Have you been discriminated against or harassed at work? Are you supposed to get paid overtime but you're not? Is your employer giving you a hard time about taking time off to deal with a personal or family medical issue?  Have you been denied unemployment compensation benefits? Do you think that your civil rights have been violated?

Is so, you've come to the right place.

Employment Law Experience

I am an employee and civil rights attorney with 28 years of legal experience. I am a dedicated, passionate advocate for people whose employment and civil rights have been violated. I believe that people need a lawyer who will level the playing field in disputes with their employer and the government.

About Employment Lawyer David W. Neel

David W. Neel is an AV-Preeminent* attorney in Cleveland, Ohio, with 28 years experience as a civil trial lawyer. In addition to his practice, Mr. Neel is an adjunct Professor Law at Cleveland State University.  Mr. Neel received a Bachelor of Arts with honors from Kenyon College, his law degree with honors from Cleveland-Marshall College of Law and a Masters Degree in Law from Columbia University. After serving as a federal judicial clerk, Mr. Neel represented Fortune 500 companies in complex commercial and employment litigation. In 2003, Mr. Neel began focusing his practice on helping people, not corporations. Mr. Neel has wide-ranging experience in the trial and appellate divisions in both federal and state courts and before numerous administrative agencies.

*CV, BV and AV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies. For more information please visit www.martindale.com

Recover Unpaid Overtime Now

Get paid overtime for your hard work - David W. Neel, Esq. 216-522-0011/dwneel@neellaw.com

A maximum of generally 40 hours per week has been set by various state and federal laws on the amount of work that an employer may obtain from an employee without paying overtime.  This ceiling is generally designed to assure employees a reasonable amount of time off, to provide a stimulus for the creation of additional jobs, and to place limits on the ways firms compete with each other.  When an employee works beyond the number of hours set as the ceiling, those laws generally require a payment of one and one-half times the employee’s regular hourly rate for the extra hours of work.  The Fair Labor Standards Act (FLSA) contains the basic federal law on overtime pay.  Its rules are the model for overtime pay rules under the laws of various states, including Ohio.

• In sum, employers are required to pay employees overtime for hours over 40 worked during a week. Overtime pay is 1-1/5 times an employee’s regular wage rate. For example, if you are paid $10 per hour and work 60 hours in a week, then you are entitled to be paid $15 per hour for the 20 hours above your normal 40 hours.

The FLSA does not limit the number of hours the employee may work during a week, but simply designates those hours that must be paid at the overtime rate.  An employee may work as many hours a week as the employee and the employer see fit, as long as overtime is paid.  There are certain exceptions to this rule. For example, federal law and the laws of various states limit the number of hours that can be worked in certain jobs, such as mining, driving, and manufacturing.

Exempt Employees

The overtime compensation rules do not apply in like manner to all employees.  Some workers are completely exempt from the rules, while others are exempt or partially exempt from some of the rules.  The most widely used and recognized exemptions from federal and state overtime requirements are the exemptions for “white collar” employees, such as executives, administrators and professionals.

• An executive employee is generally one whose primary duty is management, who supervises the work of at least two other employees on a regular basis, and who has the power to hire or fire, or who has a say as to the employment status of other employees.

• An administrative employee is generally one whose primary duty is office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, including the exercise of discretion and independent judgment with respect to matters of significance.  For example, employees working in a tax, labor relations, human resources or IT department can be exempt administrative employees, if they regularly make important business judgments.

• “Professional employee” refers generally to the traditional professions, including teaching, as opposed to the mechanical arts or skilled trades

• While technically not exempted by the white collar exemptions, skilled computer employees and outside salespersons may also be classified as exempt employees.

Whether an employee is exempt is determined by the employee’s actual work activities, not by an employer’s characterization of those activities through a job title, job description or by the nature of the employer’s business.

Salary Requirements For Exempt Employees

No employee may be considered an exempt “white collar” employee unless his or her wages meet the minimum compensation requirements.  Currently, the minimum compensation requirement is $455 per week on a salary basis; however, this pay requirement does not apply to teachers, doctors, medical residents and interns, and lawyers.  For computer employees, the pay requirement is met by compensation of at least $27.63 per hour. President Obama has called for an increase to the minimum salary requirement so that millions more Americans can get overtime.

Penalties for Employers

Unpaid overtime carries stiff penalties for employers. In addition to paying the amount of unpaid overtime, employees can collect an additional 2 to 5 times that amount in damages. Unpaid overtime can also result in employer liability for the employee’s attorney’s fees and litigation costs and expenses. Not only that, an employee can sue on behalf of other employees who were the victim of unpaid overtime. In such cases, the employee who sues can collect an additional amount as the representative for class of employees with unpaid overtime claims.

Who Is An Employer?

Moreover, the legal definition of “employer” includes “any person acting directly or indirectly in the interest of an employer in relation to an employee.” This means that business owners and others can be personally liable for unpaid overtime and additional damages.

More information about your rights can be found at the DOL website and, more generally, at Wikipedia. The DOL also provides an overtime calculator that you can use to calculate what you might be owed.

The above statements are general and are not intended to be relied upon as legal advice. The overtime laws are complicated. If you have questions please feel free to contact me at 216-522-0011.

Employment Law - Unlawful Discrimination Based on Pregnancy, Race, Gender, Religion, Age, Disability, National Origin & Ancestry

Lawyer David Neel | Top Attorney Discrimination

Discrimination in employment is unlawful.  Employers cannot base decisions on race, color, religion, sex, military status, national origin, disability, age, or ancestry.  Legislation is pending in Congress and Ohio’s General Assembly to prohibit employment discrimination on the basis of sexual orientation and gender identity.  If passed into law members of the LGBT community will be protected against discrimination by employers.

Employment Law - Who Are Considered "Employers"?

Federal anti-discrimination law (Title VII) applies to employers with at least 15 employees. Ohio anti-discrimination law covers employers with 4 or more employees.  Under Ohio law supervisors are considered employers.  This means that supervisors can be held liable for employment discrimination along with the company.

Employment Law - How is Discrimination Proved?

The question to be asked in a discrimination case is always “why” – Why did the employer make the employment decision?  The successful discrimination plaintiff is able to prove that the employer made its decision because of the protected characteristic (race, religion, sex, etc.)

Proving the reason for an employer’s decision is difficult because it requires getting into the mind of the employer. For example, most employers are not so dumb that they will tell an employee they are being let go because of their race.  The employer (or its supervisors) rarely makes comments that show a discriminatory motive.  Most discrimination cases are, therefore, based on circumstantial evidence. Recognizing the difficulty employees have in proving discrimination circumstantially, the U.S. Supreme Court in 1973 set forth the basic elements of a circumstantial case.   We lawyers call this the prima facie (Latin for “at first sight”) case.  Proof of these elements eliminates most non-discriminatory reasons for the employer’s decision.  The elements are (1) the employee is a member of one of the protected classes (e.g., race, religion, gender, etc.); (2) the employee was qualified for the job; (3) the employee suffered an “adverse employment action”; and (4) a “similarly-situated” (comparable) employee who is not a member of the same protected class was treated more favorably.  This forces the employer to state the reason for its decision.  The plaintiff-employee must then offer evidence that the employer’s stated reason is not worthy of belief.

Experience Matters in Employment Law

Success in an employment law discrimination case requires an experienced litigation attorney with knowledge of applicable laws, rules and regulations.  If you have any questions you should feel free to call me at 216-522-0011.  I offer a no-charge consultation and will tell you whether, in my opinion, you have a case.

The above statements are quite general and should not be relied upon as legal advice.  The intent is to paint a picture of the legal landscape.  Again, just give me a call to get more information about your situation.

Inability to Sit Can Be a Disability Under the ADA

Is the inability to sit for an extended period of time a disability under the Americans with Disabilities Act?  One court has said that it could be.  In Parada v. Banco Industrial de Venezuela, C.A., Case No. 12-3525 (2^nd Cir., Mar. 25, 2014), the United States Court of Appeals for the Second Circuit has asked the trial court to decide whether the plaintiff’s condition meets the definition of disability under the ADA. The questions for the trial court are whether sitting is a “major life activity” and whether plaintiff’s condition substantially limited his ability to sit.   The case is noteworthy because the appeals court did not completely reject plaintiff’s claim that the inability to sit for a prolonged period is an ADA disability. 

David W. Neel - Employee Rights Attorney

EEOC Must Pay Employer $189,000 in Attorneys' Fees

The EEOC got hammered for dawdling in its investigation and bringing a claim that prejudiced the employer because of the delay.  The employee, a supervisor, said he got fired for complaining that only Hispanics received certain supervisory positions. He claimed discrimination based on his “American” national origin – somewhat of a reverse national origin discrimination claim.  He went to the EEOC for help. Six and one-half years later, the EEOC filed suit. The district court granted the employer's motion for summary judgment and awarded the employer just over $189,000 in attorneys’ fees – ouch!.  The court found the EEOC acted unreasonably in pursuing litigation.  On appeal the EEOC argued that the trial court abused its discretion by awarding fees.  The appeals court disagreed.  The EEOC has ninety days to ask the U.S. Supreme Court to accept the case for review. EEOC v. Propak Logistics, Inc., Case No. 13-1687 (2^nd Cir., Mar. 25, 2014).

David W. Neel - Employee Rights Attorney

Employer's Confidentiality Policy For Wage Information Violates Labor Laws

Unfair Labor Practice Found

In Flex Frac Logistics, L.L.C., et al. v. NLRB, Case No. 12-60752 (5^th Cir., Mar. 24, 2014), Flex Frac, a non-union trucking company, asked the court of appeals to overturn an Administrative Law Judge’s decision, affirmed by the National Labor Relations Board, that the company’s employee confidentiality policy constituted an unfair labor practice. The policy prohibited employees from divulging “personnel information.” The case originated with a fired non-union employee’s unfair labor practice charge.  The ALJ found that although there was no reference to wages or other specific terms and conditions of employment in the confidentiality clause, the clause nonetheless violated NLRA Section 8(a)(1) because it restricted employees from exercising their NLRA Section 7 right to discuss wage information.  The court concluded that the NLRB's interpretation of the confidentiality clause was not unreasonable. The court, therefore, enforced the NLRB's order restricting the company from maintaining a policy prohibiting employee discussion of wage information.

David W. Neel - Employee Rights Attorney

Things You Need To Do If You’ve Been Fired From Your Job

1. File for Unemployment.

Apply for unemployment benefits as soon as you learn that your employment has been terminated. The sooner you get the process rolling the sooner you can get benefits. Ohio employees start the process with the Ohio Department of Job and Family Services.  Applications can be submitted online (unemployment.ohio.gov) or by phone (1-877-644-6562).  Be ready to provide the following information:

 Your Social Security number
 Your driver's license or state ID number
 Your name, address, telephone number, and e-mail address
 Name, address, telephone number, and dates of employment with each employer you worked for during the past 6 weeks
 The reason you became unemployed from each employer
 Dependents' names, Social Security numbers, and dates of birth
 If claiming dependents, your spouse's name, Social Security number, and birth date
 If you are not a U.S. citizen or national, alien registration number and expiration date
 Your regular occupation and job skills

File an appeal if your claim is denied.  The determination notice will tell you how to appeal and the deadline for doing so.  File another appeal if you are denied again.  The claim is then transferred to the Unemployment Compensation Review Commission (UCRC).  There you will get a 45 minute hearing by telephone.  You should retain an attorney to represent you at the hearing.  Don’t wait until the last minute to get an attorney.  Contact an attorney as soon as you receive notice that your first appeal has been denied.  Many attorneys, including me, will represent you on a contingent fee basis.

And don’t forget to file your weekly claims.

2. Start looking for a new job.

This seems obvious.  Your main source of income has been lost.  Your best interests require an intense and immediate job search.  Taking a few days to settle into your situation is a good idea sometimes.  Be ready to get back in the saddle, though.  To maintain unemployment benefits you must apply for at least two jobs every week.  Apply to more than that – the objective is not to stay on unemployment; the goal is to find a comparable position that pays as much as or more than what you were earning before.

There is a not so obvious reason to start your job search.  In a lawsuit your former employer’s attorneys will require you to provide information about all jobs you applied for and to produce related documents.  So, maintain an ongoing list of jobs applied for. Keep copies of all documents pertaining to your job search.  This includes printing out pages from internet websites such as monster.com.  An employment attorney who represents you will need them.

3. Do not talk about what happened on any           social media site.

Just don’t.  Every employer’s attorney these days asks for information about Facebook, LinkedIn, personal blogs – everything out there on the internet where they can grab information about you.  It’s very simple: don’t post anything about your former employer, reasons for your termination, or anything you would not want to be asked about by the employer’s lawyer.

4. Keep a copy of important documents.

Keep your copy of the employee handbook.  Forward copies of emails that you think are important to a non-work, personal inbox.  Make copies if you can of important hard copy documents.  Don’t take anything that could be a trade secret, customer lists or like information.  You do not want to be accused of stealing proprietary information.

5. Stay on good terms with your work                   friends.

Friends from work can be a valuable resource.  Don’t feel bad if eventually they will not communicate with you about what’s going on at work.  Once a lawsuit gets filed employers almost always tell employees not to speak with the plaintiff, under penalty of termination.

6. Contact an employment lawyer.

If you think your former employer violated your rights then contact an employment lawyer.  We lawyers love getting called by prospective clients.  Most attorneys, including me, offer a free consultation to determine if you have a claim.  Call more than one lawyer.  Sometimes one lawyer will see things that other lawyers don’t.

David W. Neel - Employee Rights Attorney

Proposed Overtime Rules Will Help Millions Of Americans

More Overtime Expansion

On Saturday, March 15, 2014, President Obama continued his push to help middle income workers by making more employees eligible for overtime pay under the Fair Labor Standards Act (“FLSA”).  The FLSA is the federal law that requires employers to pay time and a-half to wage for work employees.  On March 13, 2014, the President issued a memorandum to the Labor Department proposing significant changes to overtime rules.  President Obama used his weekly radio address to focus attention on his labor agenda.

Changes to White Collar Overtime Exemption

White collar employees, such as professional, executive and administrative employees, are considered exempt from the overtime laws if they earn at least $455 in gross pay per week.  This equates to an hourly wage of $11.37 based on a 40 hour work week.  Extra hours, though, reduce the wage rate.  At about 60 hours per week, the white collar employee barely earns the federal minimum wage. In states like Ohio with a higher minimum wage, they earn less than the minimum wage.

The $455 per week limit comes out to $23,660, which is below the poverty level for a four-person family. President Obama has not called for a specific increase. Many economists, however, have proposed doubling the weekly pay limit to nearly $1,000 per week, or $52,000 annually. That figure better reflects a white collar pay level.

Many employers designate employees as supervisors to avoid overtime pay requirements. President Obama’s memorandum to the Labor Department also proposes revised Department rules to re-define the term supervisor.

The process of implementing rule changes includes a period for comment from the public.  This process means that it could be 12-18 months before new rules go into effect.  The last increase to the white collar pay limit occurred under President Bush in 2004.

David W. Neel - Employee Rights Attorney

Home Health Aides to Get Overtime and Minimum Wage Protections

Current Law 

People who employ housekeepers and others to perform household services in their home for at least 8 hours per week are required to pay the minimum wage and overtime. Babysitters who work a regular, steady schedule for more than 8 hours per week are covered too.

One would think that home health care workers, such as STNAs and CNAs (but not registered or practical nurses) would be entitled to minimum wages and overtime pay. The current general rule is they are not because of the “companionship” exemption. Companionship services mean fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. If, however, more than 20% of such services include household work for the aged or infirm person, such as meal preparation, bed making, washing of clothes and general household work, then they are considered domestic service employees entitled to the minimum wage and overtime pay.

New Law 

The law will change on January 1, 2015. As of that date, home care staffing agencies will have to pay their workers the minimum wage for all hours worked, and overtime pay at time and one-half of the regular rate of pay for all hours worked over 40 in a workweek, regardless of duties. As a result, millions of home care workers will become entitled to the minimum wage and overtime pay.

David W. Neel - Employee Rights Attorney

Whistleblower Protection Law in Ohio

Welcome to the Cleveland Employment Law Blog. Here you will find useful information about your rights as an employee.

General "whistleblower" protection is afforded under Ohio law to employees by statute, Ohio Revised Code section 4112.52. It is imperative that you follow the detailed process set forth in the statute. If you fail to do so you will not be entitled to whistleblower protection.

The Ohio whistleblower statute is tricky to navigate. I strongly urge you to seek legal advice before you report suspected illegal activity to your employer.

This article pertains to two of the three categories afforded protection under R.C. 4112.52. The third category pertains to state laws governing pollution control, specifically violations of R.C. 3704 (air pollution laws), 3734 (hazardous waste), 6109 (drinking water safety), and 6111 (water pollution).

The first whistleblower situation comes into play when you think that the company is engaging in illegal activity by (A) committing a felony; (B) committing a crime that is likely to cause an imminent risk of physical harm to persons or a hazard to pubic health or safety; or (C) making an improper solicitation for a political contribution. You must have more than a suspicion. You must have a reasonable belief based on your own reasonable and good faith effort to determine the accuracy of any information you want to report. If you have done so and reasonably believe that (A), (B) or (C) above is occurring, then you can orally report your information to your supervisor or a company officer. You must then, after making the oral report, provide that person with a written report detailing the illegal activity. If your employer does not correct the violation or make a good faith effort to do so within twenty-four hours, you may then provide your written report to authorities outside the company, including the county prosecutor.

The second situation applies when you think that a co-worker is engaging in illegal activity or violating a company work rule or policy that is (A) a felony; (B)a crime that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety; or (C) an improper solicitation for a political contribution. In this situation you can orally report your information to your supervisor or a company officer. You are not required to undertake a reasonable and good faith effort to determine the accuracy of any information you want to report; however, your belief in the existence of illegal activity must be reasonable.

If you follow the statute to the letter, your employer cannot retaliate against you for making the reports permitted under the statute. Of course this does not mean that your employer will not retaliate. If retaliation occurs, the statute provides you with a remedy to compensate for the employer's actions against you.

Again, I strongly urge you to speak with a lawyer if you find yourself in a potential whistleblower situation. Also, this article is not meant to provide legal advice or direction. It is only intended to help you gain a general understanding of the legal landscape. There is no replacement for obtaining advice from a lawyer. You should seek such help before you engage in the whistleblower process.

Please feel free to leave comments and questions.

You should also always feel free to contact me at the Law Offices of David W. Neel located at 55 Public Square, Suite 1950, Cleveland, Ohio 44113. I can be reached at 216-522-0011.

Best Regards,

David W. Neel

Wrongful Termination

Welcome to the Cleveland Employment Law Blog. Here you will find useful information about your rights as an employee.

Today I want to discuss claims for wrongful termination. Wrongful termination is a term of art. It is not a catch-all for all wrongs you might experience at work. In order to have a valid claim for wrongful termination, there must be a public policy expressed in the federal or Ohio Constitutions, statutory law rules and regulations, or the common law (that is, judge-made law established in judicial decisions). In addition to a public policy, the wrongful termination plaintiff must also prove that the dismissal of employees in like situations would jeopardize the public policy, that the plaintiff's dismissal was motivated by conduct relating to the public policy, and finally that the employer lacked an overriding legitimate business justification for the dismissal.

Please feel free to leave comments and questions. If you have been terminated from your job then please do not hesitate to post a question that you would like me to answer.

You should also always feel free to contact me at the Law Offices of David W. Neel located at 55 Public Square, Suite 1950, Cleveland, Ohio 44113. I can be reached at 216-522-0011.

Best Regards,

David W. Neel