1. The #MeToo Movement and Sexual Harassment in the Workplace
The #MeToo movement began to make headlines in late 2017 and societal awareness of the movement seemed pervasive throughout 2018. We expect that awareness to remain very high, but it is not certain exactly how it will affect employment law. One could reasonably conclude that the #MeToo Movement will empower more victims to report their stories. But whether this results in more sexual harassment lawsuits being filed remains to be seen.
Yet there are some key reminders that employers should heed. First, all complaints of sexual harassment in the workplace must be taken seriously. This means, among other things, that such reports must be promptly and adequately investigated. If the results of an investigation show that harassment occurred in the workplace or in connection to work, then the employer must take adequate and prompt action to stop the harassment, and impose appropriate discipline on the harasser.
Employees must know that sexual harassment will not be tolerated in the workplace. Now is a good time to review your company’s sexual harassment policies and consider additional training for employees. This training should be done by routinely by experienced presenters.
2. Wage and Hour Lawsuits
The Fair Labor Standards Act (“FLSA”) provides a number of important protections to employees, including the right to a minimum wage and overtime pay. Employers also must pay for all hours which they suffer or permit an employee to work. Violations of the FLSA can be pursued by the Department of Labor, by an aggrieved employee on an individual basis, or by a group of allegedly harmed employees (or former employees). This last approach can be taken through the more traditional class action or in a “collective action” under the terms of the FLSA.
Regardless of the manner in which these claims are pursued, it can become a major problem for employers. For example, an employee who prevails on his/her claim under the FLSA is entitled to payment of his/her attorneys’ fees by the employer, among other damages. As with many situations, an ounce of prevention is worth a pound of cure. Carefully review your payment practices and procedures to ensure compliance with the FLSA. This includes classifying employees properly (i.e., exempt or non-exempt, employee or independent contractor), making sure that all time when the employee is permitted to work is paid, not impermissibly “rounding” time, and paying properly for breaks, rest periods, and “donning and doffing.”
3. Drugs in the Workplace
Employers across the county have been dealing with the impacts of the opioid epidemic. Employee opioid use—or drug use of any kind—raises several legal issues for employers. For example, an employee may be entitled to take Family Medical Leave Act leave to treat his/her opioid addiction. An employee recovering from drug addiction could also qualify as a disabled individual under the Americans with Disabilities Act and therefore be entitled to reasonable accommodations for his/her disability, such as a modified work schedule to allow the employee to attend a drug treatment program.
In addition to these issues, Ohio employers will face several new challenges in light of the state’s recent legalization of medical marijuana. This major change in Ohio law was sold to employers as including a “safe harbor” for employers who wish to prohibit the use of medical marijuana in their workplace. But plaintiff lawyers are not so convinced that the legislature created an air-tight defense for employers. While it would appear employers will be on firm ground in prohibiting marijuana use among employees whose work could create safety hazards under the influence, the Americans with Disabilities Act could arguably make other workplace prohibitions somewhat risky. It remains to be seen in Ohio the extent to which employers are required to permit employees to use medical marijuana as a reasonable accommodation for a disability.
4. Immigration Enforcement Efforts
The U.S. Immigration and Customs Enforcement (“ICE”) quadrupled its workplace inspections in 2018. There is every indication that ICE will remain very active in 2019. Employers need to be sure that they are prepared to respond to any such enforcement action by ICE.
Even those employers who are confident they only employ individuals who are eligible to work in the United States could face liability if the employer’s Employment Eligibility Verification Form I-9s are not completed in compliance with the law. If ICE conducts an audit of an employer’s I-9 forms and determines the forms are not in compliance with the law, the employer may be fined even if all of its workers are authorized to work in the United States. Fines can range from $220 to $2,191 per employee just for paperwork violations.