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.

On November 22, 2022, a Virginia Walmart employee reportedly opened fire in a staff break room, killing six co-workers and injuring several others. On January 23, 2023, a California mushroom farm employee shot and killed seven people at two locations, one of which was his place of employment.  These tragedies are just two examples of workplace violence that has become all too common in the United States. Every year, thousands of American workers report that they witness or are victims of workplace violence, ranging from harassment to homicide.  These incidents also often lead to reports of trauma and post-traumatic stress disorder.

In addition to injuries and tragic loss of life, incidents of workplace violence can result in increased costs and legal liability for employers. For example, at least one victim in the November 2022 Walmart shooting sued Walmart, seeking $50 million. In the complaint, the victim alleged that Walmart continued to employ the shooter despite numerous written complaints and knowledge of the shooter’s bizarre and threatening behavior leading up to the shooting. Possible claims against employers in the wake of workplace violence can include:

  • Negligent hiring, training, retention, and supervision;
  • Infliction of emotional distress;
  • Breach of duty to warn;
  • Breach of duty to provide adequate security; and
  • Breach of contract (implied or express).

With many motivations to avoid incidents of workplace violence, the following are some preventative and responsive steps that employers can take:

  1. Pre-employment screening. When considering applicants, employers should examine any unexplained gaps in employment, check references, examine any prior discharges, and look for signs of instability. Employers should pay special attention to “red flags” such as a history of drug or alcohol abuse, past conflicts with co-workers, convictions for violent crimes, a defensive or hostile attitude, or tendencies to blame others for problems.
  • Current employee awareness. Supervisors and employees should remain vigilant for activities or behavior that may indicate the potential for workplace violence. Such activities or behavior may include: bringing weapons to work and/or displaying weapons; vandalizing or sabotaging company property; violating others’ privacy (searching desks, stalking, etc.); or making direct or veiled threats. Violent employees rarely “just snap” – they typically exhibit a pattern of angry or aggressive behavior before they act.
  • Workplace violence training. Employers should implement periodic training for all employees, regardless of position, to educate them about: basic facts concerning workplace violence; the relationship between domestic violence and workplace safety; employer-specific workplace violence policies and employees’ rights and obligations under those policies; and how to identify and report problem behavior. Supervisors also should undergo training on how to properly escalate a report of workplace violence. Finally, employers should consider developing and conducting active shooter drills with all employees, such as teaching “Run, Hide, Fight” tactics.
  • Crisis and threat assessment teams. Employers can assemble an interdisciplinary group (comprised of employees from several departments such as human resources, security, legal, employee assistance, labor relations, etc.) to apply their knowledge and experience to develop a workplace violence prevention program. If appropriate, employers may want to include local law enforcement in their discussions.
  • Facility security measures. Employers should conduct a risk assessment of their facility and create a security plan.  Such a plan may include: limiting facility access to authorized personnel and instructing employees to not prop open doors; installing and maintaining a key card system; and installing security cameras.

While incidents of workplace violence never will be completely preventable, employers can dramatically decrease their risk with careful hiring practices, effective management and supervision, comprehensive policies and training, and regular crisis and risk assessment.

If you have questions about workplace violence prevention or any general labor or employment matters, feel free to contact Andrew Cleves (, Katie McLaughlin (, or another member of Frantz Ward’s Labor & Employment Group.

As part of its $1.7 trillion end-of-year spending bill, Congress passed two laws that provide new rights and protections for pregnant workers and nursing mothers – the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).  Summaries of each law are provided below.


Modeled after the Americans with Disabilities Act (ADA), the PWFA requires covered employers (those with 15 or more employees) to provide reasonable accommodations to employees and applicants affected by pregnancy, childbirth, or related medical conditions, so long as it does not impose an undue hardship.  Previously, pregnancy had not been treated as a condition requiring accommodation under the ADA or other federal anti-discrimination law.

As with the ADA, a reasonable accommodation under the PWFA might include any number of changes to the workplace, like allowing more frequent restroom breaks or light duty work.  Also like the ADA, employers will be required to engage in an interactive process when considering the need for an accommodation. Notably, the PWFA provides that an employer may not require employees to take leave (paid or unpaid) if another accommodation is available.  The PWFA also prohibits discrimination based upon the need for an accommodation, or retaliation because an individual requested or used an accommodation.

The PWFA will take effect on June 27, 2023.  The Equal Employment Opportunity Commission (EEOC) is expected to issue regulations at some point in the next year.

The PUMP Act

The PUMP Act expands workplace protections for employees who need to express breast milk.  The new law expands on 2010 amendments to the Fair Labor Standards Act (FLSA) that required covered employers to provide non-exempt, nursing workers with reasonable break time and a private space (not a restroom) to express breast milk.  Under the new PUMP Act, these protections are now available to all workers and are expanded from one year to twoyears after a child’s birth.  Unless required by other state or federal law, employers are not required to compensate non-exempt employees for lactation breaks.  However, if a non-exempt employee is not completely relieved of all duties, these breaks will be considered compensable hours worked.

Before filing suit for a violation of the PUMP Act, an employee must provide their employer with notice of an alleged violation and a 10-day period to remedy it.  Like the prior 2010 law, employers with less than 50 employees are exempt from these requirements if compliance would impose an undue hardship. 

The PUMP Act’s expanded obligations for covered employers took effect on December 29, 2022.  The DOL is expected to issue additional guidance for employer compliance in the next 60 days.

Employer Takeaways

Employers should immediately take steps to ensure compliance with these new laws.  These should include:

  • Educating HR professionals and managers regarding the new obligations.
  • Updating policies and forms, including those related to reasonable accommodations, to reflect these new protections.
  • Updating training materials for supervisors and employees.

Please contact Mike Chesney ( or any member of Frantz Ward’s Labor and Employment Practice Group with questions regarding compliance with these new laws.

On January 5, 2023, the Federal Trade Commission (“FTC”) proposed a rule banning provisions in employment agreements which prevent employees and independent contractors, for a period of time, from working for a competitor or starting a competing business. The FTC will accept public comments on the proposal for 60 days and consider those comments prior to issuing a final rule. The FTC’s proposal does not appear to address agreements barring confidentiality agreements or agreements barring solicitation of customers or employees of a former employer. The FTC does, however, intend to require employers to withdraw existing non-compete agreements and within six months, advise employees they are no longer in effect. The proposed rule would exempt companies that seek to require an owner selling a business from immediately re-entering the same industry. The FTC’s position is that non-compete restrictions block workers from switching jobs, depriving them of better wages and working conditions. The FTC also believes these agreements deprive businesses of needed talent. The FTC’s proposal is likely to meet legal challenges from business groups regarding the FTC’s authority to issue such a rule, as well as whether such a ban is justified. Frantz Ward LLP’s Labor and Employment Group is carefully monitoring these developments. In the meantime, if you have questions about the new proposed rule, please contact Douglas B. Schnee or any member of Frantz Ward LLP’s Labor and Employment Group. 

In March of 2020, the National Labor Relations Board (“NLRB” or “the Board”) finalized a rule that substantially overhauled certain parts of NLRB election procedures thereby providing additional protections to the rights of workers with respect to their ability to choose whether or not they wanted to be represented by a union.

More specifically, in 2020, the Board revamped three portions of its election procedure and weakened three historical doctrines that had protected unions from removal in certain circumstances:  1) with respect to “blocking charges,” whereby pending unfair labor practice charges filed by a union prior to a decertification election would delay an election, the Board in 2020 directed the regions in most situations to hold elections and count the ballots, but not certify the results until the unfair labor practice charge had been ruled upon (to see if the alleged conduct interfered with the vote), or to impound the ballots for up to 60 days before counting them; 2) with respect to the “voluntary recognition bar,” whereby challenges to a voluntarily recognized union were barred for a reasonable period of time (typically six months to a year), the Board in 2020 stated that unions were only insulated from removal if they notified the Board of their voluntary recognition and the employer had posted a notice alerting workers to their right to file for a decertification election within 45 days of the posting; and 3) with respect to certain collective bargaining relationships involving employers in the construction industry, whereby unions and employers can set terms and conditions of employment without the union having demonstrated majority support, the Board in 2020 reversed a long-standing rule that prevented employers from challenging a union’s removal more than six months after being recognized, and required a union invoking the removal bar to point to more than contract language to prove majority support.

On November 4, 2022, the National Labor Relations Board issued a proposal to roll back and rescind its 2020 rule and return to the pre-2020 status quo on the basis that the 2020 changes hampered the right of employees to choose their collective bargaining representative.  NLRB Chair Lauren McFerran stated, reversing these changes “will better protect workers’ ability to make a free choice regarding union representation, promote stability in labor relations, and more effectively encourage collective bargaining,”   Hence, under the current proposal, unions would be able to file an unfair labor practice charge to block a pending decertification election, employers would be prohibited for a reasonable period of time from attempting to have a union removed after the employer had voluntarily recognized the union, and employers in the construction industry would also have to wait at least six months before challenging the majority support of a union they may have voluntarily recognized.

Interested parties have until Jan. 3 to comment on the pending proposal.

If you have questions about the NLRB’s proposed new rule or a general labor or employment question, feel free to contact Joel Hlavaty or any member of Frantz Ward’s Labor & Employment Group.

The Department of Justice has claimed its first victory in attacking “no-poach” agreements after a Nevada staffing company pled guilty and was sentenced to pay $134,000.  The case arose out of a concerted effort by the Federal Trade Commission and DOJ, first announced in 2016, to target companies who enter into agreements with competitors to fix wages or not hire each other’s workers.  The DOJ has taken the position that “no-poach” agreements constitute criminal conspiracies in restraint of trade, in violation of the Sherman Anti-Trust Act.

In the Nevada case, two nurse staffing companies providing nurses to a school district allegedly agreed to allocate nurse employees by not recruiting or hiring each other’s nurses assigned to that school district. They further allegedly agreed to refrain from raising the wages of those nurses.  As evidence of the conspiracy, the DOJ cited emails documenting the companies’ agreement:

  • The Branch Manager of the indicted company sent an email to Company A (not indicted) stating: “per our conversation, we will not recruit any of your active [school district] nurses.”
  • Company A employee responded with the following: “[a]greed on our end as well. I am glad we can work together through this[] and assure that we will not let the field employees run our business moving forward.”
  • In an email discussing refusing to negotiate further wage increases, the Branch Manager also stated “[i]f anyone threatens us for more money, we will tell them to kick rocks!”

The staffing company sought dismissal of the indictment on a number of grounds.  Factually, it highlighted that the company allegedly involved in the conspiracy (which the indicted company had acquired) ceased operations within a year of the alleged agreement, and that it no longer employed the offending Branch Manager.  Legally, the company argued that the DOJ was pursuing a novel and unsupported theory, because courts have not previously found “no-poach” agreements to be per se violations of the Sherman Act. Nevertheless, the court denied the company’s motion, leading to its guilty plea.

Though the case contains some unique facts, it is telling for several reasons. First, it demonstrates the DOJ’s increasing focus on prosecuting “no-poach” agreements.  The DOJ pursued this case even though the offending company no longer existed and the offending Branch Manager was no longer employed. Second, the criminal fine levied ($62,000) was higher than the federal guidelines would customarily recommend. Fines issued in these circumstances are based upon the volume of commerce (amount of business affected). While federal guidelines recommend a 20% ratio, modified by a company’s culpability, here the ratio was approximately 28%.  The fine could significantly increase for a larger company.  Third, all involved parties may face indictment, whether actively participating in the conduct or not. While the Branch Manager may have been the primary offending party, the DOJ prosecuted both him and his employer.

Companies should always carefully consider any agreements – formal or informal – they might enter with competitors, so as to avoid drawing antitrust scrutiny from the DOJ.  Similar to the government’s recent actions limiting non-compete restrictions, its recent focus on “no-poach” agreements reflects its attempt to shift power from the employer to the employee.   If you have questions about this or other Staffing, Labor and Employment, or Litigation issues, please contact Andrew Cleves, Chris Koehler, or a member of the Frantz Ward Staffing, Labor and Employment, or Litigation Practice Groups.