Videoconferencing made many employee onboarding tasks easier under COVID-related rules, including the inspection of passports, birth certificates and other I-9 documents. Those COVID-related rules are ending, however, and employers now have to conduct an in-person inspection of all I-9 documents that they examined virtually.

Federal law has long required employers to complete a Form I-9, Employment Eligibility Verification, for each employee within 3 business days of the employee’s first day of work. As part of this process, the employee’s passport, driver’s license or other I-9 documents had to be physically inspected in the employee’s presence, and the person who conducted the inspection had to complete the employer’s portion of the I-9 form. Due to health concerns during COVID, the U.S. Department of Homeland Security (DHS) announced temporary rules, under which employers could inspect I-9 documents virtually, by videoconference or otherwise, rather than in person.

When DHS issued these rules, it made it clear that it was simply deferring, and not eliminating, the employer’s obligation to conduct an in-person inspection of the I-9 documents. Although DHS extended the deferral period for an in-person inspection several times, it recently confirmed that the deferral period is ending on July 31, 2023, with a 30-day grace period until August 30, 2023.

In order to comply with the recent guidance from DHS, employers should therefore do all of the following no later than August 30: (1) identify all I-9 forms that were completed with a virtual inspection of the supporting documents; (2) arrange for an appropriate in-person inspection of the supporting documents; and (3) make the necessary notations on the I-9 forms to confirm the in-person inspection. If an employer fails to complete these steps, it could face consequences in the event of a DHS audit or other compliance proceeding.

If you have questions about this or other Labor and Employment issues, contact Brian Kelly or another member of the Frantz Ward Labor and Employment Practice Group.

On May 1, 2023, the Occupational Safety and Health Administration (“OSHA”) announced its second National Emphasis Program (“NEP”) in three months, this time addressing the leading cause of fatal workplace injuries and the most frequently cited health and safety standard during construction industry inspections: falls.

According to a statement released by Assistant Secretary for OSHA, Doug Parker, the release of the NEP intentionally coincided with last week’s 10th annual National Safety Stand-Down to Prevent Falls in Construction week. In the same statement, Assistant Secretary Parker cited to Bureau of Labor Statistics and OSHA data documenting 5,190 fatal workplace injuries in the year 2021, 680 of which were associated with falls from elevations that represent 13% of all deaths.

While it is anticipated that most inspections will occur in the construction industry (all of which will be conducted under the NEP), the NEP applies to all industries and identifies the following non-construction activities being targeted:

  • Roof top mechanical work/maintenance (e.g., HVAC)
  • Utility line work/maintenance (electrical, cable)
  • Arborist/tree trimming
  • Holiday light installation
  • Road sign maintenance/billboards
  • Power washing buildings (not connected to painting)
  • Gutter cleaning
  • Chimney cleaning
  • Window cleaning
  • Communication towers

Significantly, the NEP will focus on reducing fall-related injuries and fatalities for people working at all heights, including those less than four feet (the height threshold referenced in several OSHA general industry standards). The NEP also permits compliance officers to initiate inspections “whenever they observe someone working at heights,” as well as in response to reportable incidents, referrals and complaints. The NEP takes immediate effect and contains no date of expiration. As such, employers in construction and non-construction industries should expect and prepare for an increase in on-site inspections relating to fall hazards in 2023 and beyond.

Employee handbooks are vital tools employers use to communicate expectations for employee conduct, company culture and core values, policies, and procedures. However, when drafted poorly, handbooks can create confusion and legal liability. Below are some of the most common mistakes employers make in their employee handbooks, and how to fix them.

  1. Inadvertently creating an employment contract. Employee handbooks should include a disclaimer stating that employees are at-will, and that the handbook does not create a contract of continued employment between the employer and employee. If the handbook does not contain such a disclaimer, it could create an employment relationship terminable only for cause. Similarly, language that creates “probationary” periods for employees in the first months of their employment could also alter the at-will employment relationship. Employees may wrongly assume that they are no longer at risk for termination based on performance after they have completed their probationary period, which can lead to potential lawsuits if they are later terminated.
  2. Restricting employees’ discussion of terms and conditions of employment. Under Section 7 of the National Labor Relations Act, employers (union and non-union) may not interfere with, restrain, or coerce employees in exercising their right to engage in concerted activities. Employers commonly run afoul of the NLRA by prohibiting employee discussion of terms and conditions of employment, including wages. In turn, an employer’s social media policy that broadly prohibits any and all posts about these issues could implicate the NLRA. To avoid this, advise employees that, if they chose to post about work on social media, they should include a disclaimer clarifying that their opinions are their own and do not reflect the company’s viewpoints. However, employers can still require confidentiality in other areas like corporate information and customer data.
  3. Including a half-baked harassment policy. Handbooks must define workplace harassment, require employees to report harassment if they experience or witness it, and clearly outline the procedure for doing so. Spell out harassment reporting procedures, including to whom the employee should make a report (and an alternate in the event that the designated person is the alleged harasser). Not only will an effective anti-harassment policy protect employees, but it is also a requirement of the Faragher/Ellerth affirmative defense to sexual harassment claims.
  4. Failing to periodically update the handbook. While employers shouldn’t rewrite their handbook after every minor amendment to state law, they should periodically re-evaluate whether it comports with the laws of the states they operate in. This is especially true for policies implicating recent hot-button employment issues like non-compete and non-disclosure agreements, drug testing, pay transparency, etc. Similarly, employers should re-evaluate handbooks after significant company changes, like mergers/acquisitions, downsizing, or rapid workforce growth. State and federal employment laws apply to employers based on number of employees (among other factors). For example, an employer who recently grew from 40 to 60 employees could now be subject to the Family and Medical Leave Act, which applies to employers with 50 or more employees (among other requirements). Employers should make sure they have the proper policies in place to maintain compliance with state and federal laws.
  5. Drafting handbooks in inaccessible legalese. If employee policies are needlessly complicated and hard to understand, employees are less likely to carefully read the handbook, and in turn less likely to follow policies. Keep language simple and concise. Handbooks should be practical, approachable guides for employees – not just policies in boilerplate language to help mitigate risk in the event the employer gets sued.

An experienced employment lawyer can evaluate your employee handbook for compliance and update it based on your unique business needs. If you have questions about this or other Labor and Employment issues, contact Katie McLaughlin or another member of the Frantz Ward Labor and Employment Practice Group.

Prescription medications are a necessary, albeit expensive component of any self-insured workers’ compensation program. Unfortunately, injured workers are often prescribed unnecessary prescription drugs which can lead to dangerous health conditions and increased complexity of workers’ compensation claims. Physicians continue to prescribe and dispense opioids which are the most expensive therapy class in workers’ compensation. Studies show that injured workers with longer-term opioid prescriptions result in three times longer disability than for injured workers with similar injuries who did not receive opioid prescriptions. In the world of workers’ compensation, the medical benefits portion of a claim may be open for a number of years or even a lifetime of an injured worker. As the years progress, prescription medications become a bigger portion of the medical expense which is especially true if the injured worker has become dependent or addicted to opioid medication to control pain. In short,  increasing use of prescription medications imposes unique challenges on self-insured workers’ compensation programs.

What, if anything, can be done to control these escalating costs? By closely monitoring their workers’ compensation claims, self-insured employers can help control prescription medication costs and drive better overall workers’ compensation claims outcomes. In fact, the Ohio Administrative Code (O.A.C.) §4123-6-21.1  sets forth the procedures whereby self-insured employers can unilaterally terminate reimbursement for ongoing prescription medications under specific circumstances by:

  • Providing written notice to the injured worker, their authorized representative and the physician who is prescribing the medication that the self-insured employer will be obtaining a review from an independent physician to address the necessity and appropriateness of the continued use of prescription medications.
  • The written notice must inform all parties to the claim and the prescribing doctor that they have twenty one days to provide additional information justifying the need for ongoing medications.
  • The employer must wait until the twenty one days elapses before sending the documents  (including the information provided on behalf of the injured worker) to an independent doctor to review and address the issue of the medical rationale, necessity and appropriateness of the current prescription drugs.

In the event the independent physician reviewer’s report indicates that the prescription drugs are not necessary or appropriate for the treatment of the conditions allowed in the workers’ compensation claim, the employer may terminate the reimbursement for the medications upon receipt of the report, unless the drug is in a class that requires a “weaning-off” period as set forth in the appendix to O.A.C. §4123-6-21.5, or such other date as agreed to by the prescribing physician and the self-insuring employer. The employer must provide all parties and the prescribing doctor with a copy of the independent physician’s report and written notice of its decision to terminate. The employer must also advise the parties that the injured worker has the right to request a hearing before the Industrial Commission.

Please keep in mind that self-insuring employers may continue to deny INITIAL requests for a drug as not being reasonably related to, or medically necessary for the treatment of the allowed conditions in the claim in accordance with Paragraph J of O.A.C. §4123-6-21.1.

Based on the foregoing, Ohio self-insured employers should regularly review their workers’ compensation claims which have continuing prescription bills and implement the foregoing procedures to control their claim costs.

If you have any questions regarding the termination of reimbursement of prescription medications, please contact Maris McNamara or any of Frantz Ward’s other workers’ compensation attorneys.

On Wednesday, the Supreme Court ruled in Helix Energy Solutions Group, Inc. v. Hewitt that an employee who earned more than $200,000 a year was not exempt from overtime pay under the FLSA’s highly compensated employee exemption.

The highly compensated employee exemption applies to employees who meet all the following criteria:

  • Perform office or non-manual work;
  • Receive total annual compensation of $107,432 or more, which must include at least $684 per week paid on a salary basis; and
  • Customarily perform at least one of the duties of an exempt executive, administrative, or professional employee.

The Court’s decision in Helix hinged upon the “salary basis” test set forth in the FLSA regulations. In summary, an employee is paid on a salary basis if he or she receives a predetermined and fixed payment on a weekly or less frequent basis that does not vary with the quality or quantity of work.

In Helix, although the employee was very highly compensated, he was paid a daily rate, meaning that he was paid only for days on which he worked, and he was never guaranteed a minimum weekly pay. In contrast, an employee paid on a salary basis is guaranteed his or her entire salary for any week in which work is performed, regardless of how many days the employee worked that week. The Court explained that although the employee in Helix received his paycheck every two weeks and the paycheck exceeded the salary level required by the exemption, this was not sufficient to meet the exemption, and he was entitled to overtime pay.

The Helix case is an important reminder to employers to review their job descriptions and pay practices to ensure all elements of the FLSA exemptions are met. Employers are encouraged to consult with counsel for assistance in performing regular FLSA audits. For more information, please contact Megan Bennett or any member of Frantz Ward’s Labor & Employment Group.

The NLRB this week once again ruled that a relatively common employment practice violated federal labor law, continuing what some are seeing as a trend under the current administration. This time, the NLRB ruled that it was illegal for an employer to offer employees a severance agreement that prohibited them from making disparaging statements about the employer and from disclosing the terms of the severance agreement itself. McLaren Macomb, 372 NLRB No. 58 (February 21, 2023)

The NLRB explained in its ruling that the non-disparagement and confidentiality provisions before it served as an attempt to deter employees from exercising their statutory rights. The NLRB’s decision came from its current Democratic majority, and it marked a stark reversal from two contrary rulings issued during 2020 by the then-Republican majority.

The McLaren Macomb case involved a hospital in Michigan where eleven union-represented employees were offered severance agreements as part of a furlough program. The employees all signed the severance agreements, and their union subsequently challenged the legality of those agreements on a number of grounds.

The NLRB’s decision in McLaren Macomb involved its analysis of specific non-disparagement and confidentiality provisions, and it remains to be seen whether the decision will be applied more broadly, just as it remains to be seen whether the decision will face a federal appeals court challenge.

If you have questions about this or other Labor and Employment issues, contact Brian Kelly or another member of the Frantz Ward Labor and Employment Practice Group.

Fighting and Horseplay in the Workplace
When thinking about injuries at the workplace, many of the first things that often come to mind are single-employee accidents like slips and trips, muscle strains from lifting heavy objects, or cuts and bruises from sometimes-improper use of machinery. But what happens when an employee’s work injuries are caused by the actions of somebody else? Predictably, the answer depends on the circumstances.  

Ohio Workers’ Compensation Generally
The workers’ compensation system in Ohio provides certain medical and wage benefits to employees who sustain injuries both in the course of their employment and arising out of their employment. That may sound a bit clunkier than just saying “injuries at work,” but there is meaning behind the specific language, “in the course of” and “arising out of.”  

Whether an injury occurs in the course of the employee’s employment depends on the time, place, and circumstances of the injury, limiting workers’ compensation benefits to employees who are injured while engaging in some essential job duty or activity that is logically related to their employers’ business. Moreover, an injury arises out of the employment when there is a causal connection between the employee’s injury and their employment—that their employment was the proximate cause of the injury.

Keeping the aforementioned language in mind, if an employee sustains an injury of an accidental nature while performing some essential job duty at work, that injury is generally covered. If the injury was caused by a co-worker’s actions, but still of an accidental nature and occurring in the course of and arising out of the employment—that is, both employees were just doing their jobs—the injury is likewise generally covered. Things become more complicated, however, when the injury is the result of fighting or horseplay involving the injured worker.

Fighting in the Workplace
For an injury sustained during a fight or assault to be compensable, Ohio courts have uniformly held that two requirements must be met: (1) the origin of the assault must have been work-related; and (2) the injured worker must not have been the instigator of the fight. It does not matter whether the fight or assault involves a co-worker or not, only that those two requirements are met, so even an assault from a non-employee member of the public can give rise to a workers’ compensation claim if it was over something work-related and the injured worker was not the instigator.

For the first requirement—that the fight must be over something work-related—this is an extremely fact-specific inquiry. Very rarely do physical fights and assaults have no personal element to them whatsoever. As such, it is always a good idea for employers to fully investigate any and all fights that occur involving employees, as there will likely be an at least colorable defense against a potential workers compensation claim that there was a strictly personal and non-work-related reason behind the fight/assault. Tying it back to the language discussed above, the personal nature of a fight can take it out of the purview of the workers’ compensation system because it severs the causal connection between the injury and the employment.

The second requirement is slightly more clear-cut, but not by much, as there are often arguments over who truly instigated a fight in the workplace. This is still a fact-specific inquiry, but the issue of instigation typically comes down to the question of who initiated the physical contact. For this requirement, again looking at the legal standard for workers’ compensation claims discussed above, the fact that the injured worker instigated the fight in the first place would mean that that employee was decidedly not performing an essential job duty at the time of the injury.

Horseplay in the Workplace
The term, “horseplay,” has no special legal definition in the context of Ohio Workers’ Compensation law, but simply refers to pranks and “goofing around” amongst employees at the workplace. Horseplay in the workplace is treated similarly to fighting in the workplace in that an injured worker is not eligible for workers’ compensation coverage if they were the instigator of the horseplay, while an innocent victim of horseplay may have a compensable claim.

The rationale behind the system’s treatment of horseplay also comports with the general rule discussed above that, to be compensable, an injury must occur in the course of and arising out of the injured worker’s employment; playing pranks and goofing around at work is generally held to not be sufficiently connected to one’s employment.

It is important to note, however, that even instigators of horseplay may have compensable claims where the employer consents to any type of horseplay resulting in injury. It may sound unbelievable at first to imagine an employer consenting to potentially dangerous horseplay, but Ohio courts treat supervisors as an extension of the employer in this area of the law, so a supervisor allowing—or, as is sometimes the case, even engaging in—the horseplay can result in compensable claims for any injuries that result from that horseplay. As such, this one of the many important reasons employers have to be especially careful when selecting, training, and monitoring their supervisors.

We previously reported that disability advocates for many years had been asking for action with respect to the use of artificial intelligence (“AI”) tools, as it is estimated that approximately 80% of employers use some form of automated tool to screen candidates. To that end, on May 12, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”), in conjunction with the U.S. Department of Justice, issued guidance in a question and answer format to employers, employees and applicants on the use of artificial intelligence tools.   

As part of its strategic enforcement plan for the next several years, and to further the analysis of AI systems and their use, the EEOC held a public hearing on January 31, 2023, titled, “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier.” The hearing lasted almost four hours, was attended virtually by almost 3,000 members of the public, and had testimony from 12 witnesses, including experts from the American Civil Liberties Union, the U.S. Chamber of Commerce, and the American Association of Retired Persons, as well as witnesses from law firms and universities. Some of the topics discussed at the hearing included: the need to inform applicants when AI tools are being used; how to inform applicants with disabilities of the process for requesting an accommodation; evaluating the scope and quality of the data gathered by AI; whether and how to audit AI tools for bias; and ensuring that the EEOC has a role in evaluating AI systems for bias.

Examples of some of the AI tools that concern disability advocates and the EEOC are: “resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test.”

The public can submit written comments to the EEOC through February 15, 2023, after which the Commission is expected to issue additional guidance or publications on the topic of artificial intelligence. We will stay abreast of the EEOC’s actions on this front and keep you informed. In the meantime, please be aware that some large metropolitan areas (New York City) and some states (e.g., Illinois) have passed legislation that, among other things, may require an employer to inform applicants of the use of AI and to obtain their consent or allow them to select another application process.

If you have questions about the EEOC’s guidance on and examination of artificial intelligence, or a general labor or employment question, feel free to contact Joel Hlavaty or any member of Frantz Ward’s Labor & Employment Group.

In the midst of a national labor shortage, employers recruiting from a shrinking pool of potential employees are looking for ways to gain a competitive edge over other employers. What’s a better job perk than having every Friday off?

Companies nationwide, including an Ohio construction and real estate company, are beginning to implement 4-day work weeks. Employees still work 40 hours per week, but for 10 hours per day for 4 days (also known as “4 10’s”). Employees for the company usually worked from 7 AM to 6 PM Monday-Thursday, with Fridays off. But before employers implement a shortened week, they should consider their work force, the nature of their operations, and applicable state and federal law.

Employers contemplating implementing a 4-day work week should consider the following factors:

  • Overtime. Under the federal Fair Labor Standards Act, employers must only pay employees overtime for hours worked beyond 40 per week. Ohio overtime laws mirror the FLSA in this regard – employers must pay employees overtime if they work more than 40 hours per week.

However, some state laws may dissuade employers from switching to a 4-day work week. In Alaska, California, Colorado, Minnesota, Nevada, and Oregon, employers may have to pay employees overtime if they work more than 8 hours per day. In these states, employers who implement 4 10’s would have to pay employees 2 hours of overtime per day.

  • Leave eligibility. Under the federal Family and Medical Leave Act, eligibility depends, in part, on the number of hours worked. Employers may also want to consider revising their policies governing eligibility for paid time off if they are based on number of hours worked.
  • Discrimination. Longer workdays may have a disparate impact on employees who are parents and unable to secure additional childcare, presenting potential legal exposure. On the other hand, some parents have reported that they prefer the 4-day week because it allows them an extra day to spend with their families.
  • Unions. Employers with unionized work forces also face the additional hurdle of collective bargaining, as changes to employee work schedules are typically a mandatory subject of bargaining.

Employers in office or administrative settings could most easily transition to the 4-day week, but the transition may be more difficult for employers in the service industry whose customers rely on them to be open regular hours.

Alternatively, some employers have experimented with 32-hour work weeks, including an Ohio-based manufacturer. The manufacturer maintained 8-hour workdays while giving employees an extra day off, and reported that they learned to finish jobs in less time.

Apart from legal hurdles, employers that serve clients who are not on the 4-day work week may face additional difficulties. If clients and customers expect responses 5 days a week, employees may be forced to work on their days off. For example, employees at the Ohio construction and real estate company reported following up with tasks or checking email on Fridays or Saturdays. For hourly employees, this may result in overtime.

At the end of the day (whether that be after 8 or 10 hours), employers considering a 4-day work week should consult with legal counsel. While attractive for existing and potential employees, the 4-day week could present more risks than rewards for employers.

If you have questions about 4-day work weeks or a general labor or employment question, feel free to contact Katie McLaughlin or any member of Frantz Ward’s Labor & Employment Group.

On January 26, 2023, OSHA issued two enforcement memoranda accompanied by a clear message to employers from Assistant Secretary for OSHA Doug Parker: employers who “choose to put profits before their employees’ safety, health and wellbeing” will be targeted.  Aggressively.

OSHA’s first memorandum revises and significantly expands its seldom used instance-by-instance (“IBI”) policy.  The decision to cite each and every instance of alleged non-compliance as opposed to “grouping” interrelated violations of different standards into a single citation and penalty is a matter Congress committed to OSHA’s prosecutorial discretion.  Since 1990, OSHA has limited its practice of issuing citations on an IBI basis to “egregious willful citations.”  However, OSHA’s revised guidance, effective March 27, 2023, now grants OSHA the discretion to issue a citation and corresponding penalty for individual high-gravity serious violations specific to:

  • Lockout tagout;
  • Machine Guarding;
  • Falls;
  • Trenching;
  • Respiratory Protection;
  • Permit Required confined spaces; and
  • Other-than-serious violations specific to recordkeeping.

This list reflects many of OSHA’s Top 10 most frequently cited standards as well as current national and local targeted inspection programs.  OSHA provides the following factors OSHA Area Directors should consider and document when determining to issue IBI citations:

  • The employer has received a willful, repeat, or failure to abate violation within the past five (5) years where that classification is current;
  • The employer has failed to report a fatality, in patient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR 1904.39;
  • The proposed citations are related to a fatality/catastrophe;
  • The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

In addition to revising its IBI policy, OSHA’s second memorandum also issues a pointed reminder to Regional Administrators and Area Directors of their authority not to group violations.  It reiterates appropriate scenarios when grouping is appropriate, namely when “the same abatement measures correct multiple violations and/or when substantially similar violative conduct or conditions giving rise to the violations is involved.”  Grouping violations should be considered when:

  • two or more serious or other-than-serious violations constitute a single hazardous condition that is overall classified by the most serious item;
  • grouping two or more other-than-serious violations considered together create a substantial probability of death or serious physical harm; or
  • grouping two or more other-than-serious violations results in a high gravity other-than serious violation.

In cases where grouping does not elevate the gravity or classification and resulting penalty, then violations should not be grouped if the evidence allows for separate citations. 

Together, these two memoranda will likely result in significantly increased penalty amounts and overall citations in the short-term and enhanced liability for repeat, willful and failure to abate citations in the long-term. 

Employers are encouraged to consult OSHA defense counsel and to exercise caution with respect to each OSHA inspection, citation, and informal conference. For more information, please contact Christina E. Niro.