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Labor and Employment Law for Solo Attorneys


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Labor and Employment Law for Solo Attorneys

  1. 1. What a Solo Attorney Needs to Know About Labor an Employment Law Matt Austin 17 S. High St., Suite 819 Columbus, Ohio 43215 614-285-5342
  2. 2. For Discrimination ClaimsGenerally, •Ohio – 4 employees •Federal – 15 employeesMatt Austin 614-734-0000
  3. 3. Prohibited ActivitiesHire, Fire, Retaliate, Term/Condition, ImpactMost Common • Race, Sex, Age, ReligionLess Common • Gender, Pregnancy, Family Responsibility • National Origin, Color • Military Status, Unemployment • LGBT/Transgender, AssociationalMatt Austin 614-734-0000
  4. 4. Examples of Protected Activity• Obvious ones: sex and race• Filing charge of discrimination with EEOC / OCRC• Complaining to management about allegeddiscrimination• Serving as witness in discrimination investigation,hearing, judicial proceedingMatt Austin 614-734-0000
  5. 5. BFOQ Exception • Only if characteristic is intrinsic to the job • Must prove that no member of the group discriminated against can perform the jobMatt Austin 614-734-0000
  6. 6. OCRC v EEOC OCRC = Ohio Civil Rights Commission EEOC = Equal Employment Opportunity Commission Need to file charge with one of these agencies before filing complaint in court (usually)Matt Austin 614-734-0000
  7. 7. Legal Standard for Discrimination Prima facie case:McDonnell Douglas burden shifting analysis 1. Belongs to the protected class 2. Qualified for the job 3. Suffered an adverse employment action 4. Replaced by person outside class or treated less favorably than similarly situated personMatt Austin 614-734-0000
  8. 8. Legal Standard for Discrimination Burden Shifts to DefendantProve legitimate non-discriminatory reason for the action Burden Shifts to PlaintiffProve defendant’s reasons for the action were pretextualMatt Austin 614-734-0000
  9. 9. Trends in DiscriminationPregnancy • Ohio recently passed 12 unpaid weeks • Light duty if needed • Eligible first day of workMilitary • Not hiring because of risk of being deployed • Unemployed upon return from active dutyReligion • All things Muslim • Challenging religions upon first hearing about them Matt Austin 614-734-0000
  10. 10. Attorney TipsRepresenting Employers Representing Employees• Have anti-discrimination • Is there an anti-discrimination policies policy (handbook?)• Apply employment policies • Seek out similarly situated employees consistently • Determine how/when• Provide regular training offender was last trained• Don’t inflate ratings in • Compare reviews of non- reviews protected employees
  11. 11. Social Media and Employment Law Employer Concerns • Productivity • Reputational Management • Confidential / Trade Secrets • Discrimination / Harassment ClaimsMatt Austin 614-734-0000
  12. 12. Social Media in LitigationGenerally relevant info on social networking sites areadmissible evidenceDiscovery has become tedious, expensiveSocial media used to • refute claims of emotional distress • refute overtime hours • prove violations of confidentiality / non-solicitation agreementsMatt Austin 614-734-0000
  13. 13. Social Media and ESISocial media is considered electronically storedinformationCost in retrieval may be shifted to the requesting orrequested partyDuty to preserve Model Rule 1.3 may put affirmative duty on attorney to ask client for social media up frontMatt Austin 614-734-0000
  14. 14. Social Media PoliciesHot topic right nowSocial Media not generally covered in computeruse / IT policiesTips on how to create and implement policy inhandoutMatt Austin 614-734-0000
  15. 15. NLRA Applies to Non-Union Workplaces, Too What is the NLRA• Governs collective bargaining relationship of privatecompanies and unions•Encourages employees to form, join, assist labor unions• Protects employees who engage in “concerted activity”for “mutual aid or protection”Matt Austin 614-734-0000
  16. 16. Unlawful Under NLRA To interfere with, restrain, coerce, discharge, or otherwise discriminate against employees in the exercise of their NLRA rightsMatt Austin 614-734-0000
  17. 17. NLRA Applies to HandbooksPolicies cannot prohibit employees’ ability toengage in concerted activity • Wages, discipline, working conditions • No solicitation (leafletting, Girl Scout cookies) • Employee committees • Cannot refuse to hire based on union affiliationMatt Austin 614-734-0000
  18. 18. NLRA Applies to Union Organizing Drives What employers cannot do: Threaten Interrogate Promise SurveillanceMatt Austin 614-734-0000
  19. 19. NLRA Applies to Union Organizing Drives What employers can do:• Tell employees the company doesn’t want a union and why• Provide factually accurate information (dues, rules, strike history)• Explain changes that could result from becoming unionized• Compare wages/benefits the union has with other companiesMatt Austin 614-734-0000
  20. 20. NLRA Applies to Social MediaMajor movementPosts involving working conditions and otheremployees seem to be covered (usually)Matt Austin 614-734-0000
  21. 21. NLRA Applies to Social Media OK to do the following:• Call boss “scumbag”• Complain that BMW dealership offered hot dogs and chips atevent• Post/Respond “A coworker feels that we don’t help ourclients enough at HUB. I about had it! My fellow coworkershow do you feel?”Matt Austin 614-734-0000
  22. 22. NLRA Applies to Social Media Not ok to do the following:• For reporter to tweet “Stay away Tucson” in response to city’s homicide rate• For employee to post “Wuck Falmart! I swear if this tyranny doesn’t end inthis store they are about to get a wake up call because lots are about to quit”• To have SM policy prohibiting employee conduct that disregarded anyperson’s privacy and confidentiality or that may damage the reputation of theemployer, staff, or employees• To have blogging policy that prohibited confidential and proprietaryinformation or inappropriate discussions about employer, management, orcoworkers Matt Austin 614-734-0000
  23. 23. NLRA Disclaimer in Social Media Policy“Nothing in this Policy is intended to or will beapplied in a manner that limits employees’ rights toengage in protected concerted activity asprescribed by the National Labor Relations Act.”May helpMatt Austin 614-734-0000