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2024
Managing Labor +
Employee Relations Seminar
May 9, 2024
Presented by
Tony Fiore
“But…It’s Legal!”
Sources: Wikipedia; SCG Legal Counsel; Country Websites
Legal or Illegal? Medical Marijuana Across the Globe
Legal or Illegal? Recreational Marijuana Across the Globe
Sources: Wikipedia; SCG Legal Counsel; Country Websites
Federal Law + Marijuana
Federal: Marijuana continues to be
classified as a Schedule I drug under
the Controlled Substances Act
DOT: “It remains unacceptable for
any safety-sensitive employee subject
to drug testing under the Department
of Transportation’s drug testing
regulations to use marijuana.”
On August 29, 2023, the Department
of Health and Human Services (HHS)
reportedly recommended to the Drug
Enforcement Administration (DEA)
that marijuana be rescheduled from
Schedule I to Schedule III under the
Controlled Substances Act (CSA). DEA
is currently reviewing HHS's
recommendation
Marijuana and certain cannabis
infused products, including some
Cannabidiol (CBD) oil, remain illegal
under federal law except for products
that contain no more than 0.3
percent THC on a dry weight basis or
that are approved by FDA
(See the Agriculture Improvement Act of 2018, Pub. L. 115-334)
TSA + Marijuana
TSA officers are required to report
any suspected violations of law to
local, state or federal authorities
Screening procedures are focused
on security and are designed to
detect potential threats to
aviation and passengers
TSA officers do not search for
marijuana or other illegal drugs
But if found during security
screening, TSA will refer to a law
enforcement officers
DOJ prohibited from spending
money to prevent states from
“implementing their own laws that
authorize the use, distribution,
possession, or cultivation of
medical marijuana”
Budget Bill
More like the ballot issue (5/23/23
– Referred to House Finance)
HB168
Allow for Adult Use
of Marijuana
Built on expanding the medical
marijuana program
(5/16/23 – 7th Hearing, Senate
General Government)
SB9
Expands Ohio’s Medical
Marijuana Program
Initiated Statute
Enacts Ohio Revised Code Chapter
3780 – “An Act to Control and
Regulate Adult Use Cannabis”
Ohio becomes the 24th state to
legalize marijuana
Issue
2
Issue 2
Recreational
Marijuana
Recreational Use/
Possession/Home Grow
Started on December 7, 2023
Retail Sale
Starts August 7, 2024
(or before)
Recreational Marijuana Law – What Does It Do?
Enables Ohioans over 21 years of age to use, possess (up to 2
½ ounces and 15 grams of extract), and transport marijuana
purchased through Ohio’s recreational marijuana program
Enables Ohioans over 21 years of age to grow and possess 6
cannabis plants at their home
Maintains the same distribution tiers under the medical
marijuana programs (cultivators, processors, dispensaries)
Enables landlords to prohibit tenants from growing or
smoking marijuana as a term in lease agreements – hotel
guests still unclear
Recreational Marijuana Law – What Does It Do?
Does not require a public place to accommodate an
individual’s marijuana use
Does not prohibit any public place from accommodating an
individual’s marijuana use
Establishes 10% tax on all sales of marijuana from dispensaries
on top of traditional sales tax (7.25-7.5%)
• 36% Cannabis Social Equity + Jobs Fund
• 35% Host Community Cannabis Facilities Fund
• 25% Substance Abuse and Addiction Fund
• 3% Tax Administration
Cultivators, processors, testing
laboratories, and dispensaries
currently licensed as a chapter 3796
medical marijuana facility seeking
license conversion to a dual-use
license as defined by Ohio Admin.
Code 1301:18-1-01(A)
Entities eligible for a 10(B) dispensary
license as established by Ohio Admin.
Code 1301:18-2-06
All application materials for the
applicants authorized to apply in
accordance with paragraph A of this
rule will be published no later than
June 7, 2024
Decriminalization
Enables Ohioans over 21 years
of age to use, possess and
transport marijuana purchased
through Ohio’s recreational
marijuana program
Issue 2 – Penalties: Prohibits
the use, possession, cultivation,
transporting, and sale of
marijuana to be primary reason
for taking any criminal action
• 1 oz = 28 grams
• Average marijuana
cigarette (joint) = ½ g
• 1 oz of marijuana =
about 56 joints
• 2.5 oz = 140 joints
HB460
Enacts Getting
Rehabilitated Ohioans
Working Act
Employer
Control Over
the Workplace?
Section 3780.35
Nothing in this chapter does any of the following:
(A)(1) Requires an employer to permit or
accommodate an employee’s use, possession, or
distribution of adult use cannabis otherwise in
compliance with this chapter
(A)(2) Prohibits an employer from refusing to hire,
discharging, disciplining, or otherwise taking an
adverse employment action against an individual
with respect to hire, tenure, terms, conditions, or
privileges of employment because of that
individual’s use, possession, or distribution of
cannabis otherwise in compliance with this chapter
(A)(3) Prohibits an employer from establishing and
enforcing a drug testing policy, drug-free workplace
policy, or zero-tolerance drug policy
Necessary Reforms
Increase sales tax on marijuana
products
Alter tax distribution
Add protections for children
Increase law enforcement funding
Smoking Recreational Marijuana in Public
HB86
Amends Issue 2
Recreational Marijuana
Law and Liquor Law
Why Should You Care?
Workplace Challenges
Americans with Disabilities
Act/Anti-Discrimination
Unemployment Compensation
Workers’ Compensation:
Drug-Free Workplace Program
Premium Discounts
Lawful Off-Duty Conduct
Other Practical
Considerations
Hiring + Retention Challenges
Losing Job
Losing Parental Rights +
Government Benefits
Increasing Healthcare Costs
Marijuana As A Reasonable
Accommodation
R.C. §3796.28:
“Nothing in his chapter. . . requires an
employer to permit or accommodate an
employee’s use, possession, or
distribution of medical marijuana”
Barbuto v. Advantage
Sales + Marketing
Mass. Supreme Court, July 17, 2017
Mass. Supreme Court reversed lower court
dismissal of Barbuto’s disability
discrimination complaint after she was
terminated for testing positive for marijuana
in her pre-employment drug screen
Barbuto was taking marijuana for her Crohn’s
disease but not before work or at work
Court said employer still needed to engage in
interactive process regarding accommodation
NOTE: Ohio law specifically states no
accommodation is required
Adopt policies that emphasize it’s illegal to
work under the influence or consume drugs
at the workplace and that there will be legal
consequences for not obeying those policies
1
Work with a reputable drug testing company
that administers random testing, documents
a comprehensive + defensible chain of
custody, ensures employee privacy, and
complies with all state + federal regulations”
2
Keep watching what the House and Senate
may do on clarifying the marijuana statute
3
Action Steps
for Ohio Employers
Areas of Concern
Employers with locations in other
states need to become familiar
with all state laws as each law is
different
Terminating with no evidence of
“impairment”
Knowledge of reason for medical
marijuana card could lead to
knowledge of disability
Policy and CBA implications
QUESTIONS?
Tony Fiore
Director, Kegler Brown
Director, Government Affairs, Ohio SHRM
tfiore@keglerbrown.com
keglerbrown.com/fiore
(614) 462-5428
Presented by
Danielle Crane
No More Nonsense:
Workplace Harassment
Investigations, Documentation
+ Retaliation Awareness
What is
HARASSMENT?
Race/Color
National Origin
Sex
Disability
Religion
Age
Quid Pro Quo
Harassment
“This for that”
Express or implied demands for
action in exchange for a benefit or
to avoid a detriment
Usually supervisory and usually
based on sex
Hostile Work
Environment
Offensive or unwelcome conduct
Based on a protected
characteristic
Severe + pervasive
Impairs work or creates an
intimidating, abusive, or offensive
work environment
Employer’s
OBLIGATIONS
Liability attaches where:
Employer knew/should’ve known of problem
Employer did nothing
Employer’s response was insufficient
Retaliation was involved
Employer didn’t have clear policy
Reporting Procedures
No “one size fits all”
Make sure your managers know
how to discern general
complaints from ones that trigger
employer action
Initial Info
Collection +
Planning
What to do while
investigation is
PENDING
Stop conduct: suspension without pay,
separating employees, work from home, etc.
Advise everyone of confidentiality +
anti-retaliation obligations
Investigation Interviews
Complainant, Harasser, Witnesses
Ask the “W” questions
Start general, then drill down
Use this time to clarify
inconsistencies
Physical
Evidence Review
Emails
Voicemails
Call logs
Photos
Video
Surveillance
Police reports
Walk through
Ultimately, YOU
have to figure out
what happened + if
it’s harassment
Credibility
Determination Factors
Memory
Reasonableness
Truthfulness,
omissions
Corroboration
+ consistency
Bias
Prior
misconduct
Plausibility of
accounts
Follow Ups
Report or Other
DOCUMENTATION?
Depends on complaint and determinations for
how the investigation was going to progress
that you made at the beginning
Formal Report
State who did the investigation to
the person who will decide what
action to take
List investigation steps, evidence
received, facts
Quote relevant policies
Determination
Optional: recommendations
Remedial Action
Termination
Reassignment (harasser)
Re-training
Written warnings
Retaliation
What is
Protected Conduct?
Making a report
Participating in an investigation
as a witness
Filing a charge
What is an Adverse
Employment Action?
One that “might well dissuade a
reasonable worker from making
or supporting a charge of
discrimination”
Less burdensome than
discrimination claims
Danielle Crane
dcrane@keglerbrown.com
keglerbrown.com/crane
(614) 462-5444
Presented by
Nicholas S. Bobb
Mastering FLSA
Collective + Class Actions
FLSA
COLLECTIVE
Actions
Employees who believe they have
been subject to similar FLSA
violations by their employer may
join together in a single lawsuit
Address common wage + hour
violations affecting multiple
employees, typically involving issues
such as unpaid overtime or
minimum wage violations
Definition +
PURPOSE
Requirements for
FILING
One or more employees must file a
lawsuit against the employer on behalf
of themselves + others similarly situated
Employees must opt in to join the lawsuit
To initiate an action the named plaintiff
files both a complaint + a consent form
Statute of limitations of an opt-in
plaintiff’s claim tolls from the date on
which the consent form is filed but may
resume if collective action certification is
denied or the opt-in plaintiff is dismissed
Certification
PROCESS
In a collective action, there is no formal
certification process or criteria
Up until last year, courts in Ohio
generally used a two-stage approach
Conditional certification stage: the
court applies a lenient standard to decide
whether to issue notice to similarly
situated employees
Post-discovery stage: the court applies a
more rigorous standard + makes a final
determination about whether named and
opt-in plaintiffs are similarly situated
If final certification is
granted, the case may
proceed to trial as a
collective action
Common Impediments
to Collective Action
Lack of connection with state
where the suit is brought
Too tenuous a connection
between plaintiffs
Too tenuous a connection
between claims
What is “similarly situated”
for purposes of certification?
Role of Representative
Plaintiffs
Initiate the collective action
on behalf of themselves and
other potential plaintiffs
Have a duty to represent the
interests of the collective
group throughout the
litigation process
Advantages
Flexibility: Plaintiffs can join
the lawsuit voluntarily,
allowing for a more tailored
approach to representation
Direct involvement: Plaintiffs
have more direct involvement
in the litigation process
compared to class actions
Lower certification threshold:
Plaintiffs must only show that
they are similarly situated to
join the action
Challenges
Opt-in process: Convincing
potential plaintiffs to opt in to
the lawsuit can be
challenging
Individualized claims:
Managing a potentially diverse
group of plaintiffs with
individualized claims and
circumstances
Coordination: Coordinating the
efforts of multiple plaintiffs and
their attorneys throughout the
litigation process
FLSA
CLASS
Actions
Lawsuits filed on behalf of a group
or “class” of employees who have
similar claims against their employer
regarding violations of the FLSA
Efficiently resolve disputes involving
wage and hour violations that affect
numerous employees, rather than
requiring each individual employee
to file a separate lawsuit
Definition +
PURPOSE
Requirements for
CERTIFICATION
Before a lawsuit can proceed, the class of
employees seeking to bring the lawsuit
must be certified by the court
The class must be so numerous that
joinder of all members is impracticable
There must be common questions of
law or fact among the class members
The claims of the class representatives
must be typical of the claims of the class
The class representatives must fairly
represent the interests of the class
Opt-Out Process for
Potential Class Members
Potential class members are
typically given the
opportunity to “opt out” +
pursue their own claims
Class members who do not
opt out are bound by the
court's decision in the class
action
Role of Class
Representatives
FLSA class actions are
typically initiated by one or
more named plaintiffs, who
act as representatives of the
entire class
They have a duty to fairly +
adequately represent the
interests of all class members
throughout the litigation
process
Advantages
Efficiency: Allows for the
resolution of claims involving
numerous employees in a
single lawsuit
Cost-effectiveness: Sharing
legal expenses among class
members
Strength in numbers:
Increased bargaining power
when negotiating settlements
Challenges
Complexity: Managing a
large group of plaintiffs with
potentially diverse claims and
circumstances
Certification requirements:
Meeting the criteria for class
certification can be challenging
Opt-out process: Some class
members may choose to opt out,
reducing the size of the class
Key
Differences
Class vs.
Collective
Class
Opt-out: Potential class
members are automatically
included in the lawsuit unless
they choose to opt out
Certification required: The
class of employees seeking to
bring the lawsuit must be
certified by the court
Stringent threshold: Plaintiffs
required to meet specific
criteria established by the court
Collective
Opt-in: Potential plaintiffs
must affirmatively choose to
join the lawsuit by signing a
consent form
No formal certification:
Certification is not required,
although plaintiffs must show
they are similarly situated to
the named plaintiffs
Lower threshold: Potential
plaintiffs need only show they
are similarly situated to join
Class
Representative plaintiffs
initiate the lawsuit
Larger group of plaintiffs:
Typically involve a larger group
of plaintiffs, often with diverse
claims and circumstances. The
outcome of the lawsuit
generally applies to all class
members unless they choose
to opt out.
Collective
Named plaintiffs initiate the
lawsuit
Smaller group of plaintiffs:
May involve a smaller, more
cohesive group of plaintiffs
who have opted in to join the
lawsuit. Each opt-in plaintiff's
claims are typically addressed
individually, although they are
litigated collectively.
RECENT
CHANGES
to Collective Actions
Two-Stage Certification
Process
Southern District of Ohio conditionally certified in
part a collective action against defendants
Proposed class was comprised of home health aides
seeking overtime and shift differential pay
Clark, et al. v. A&L Home
Care & Training Center
On August 4, 2021, the Southern District of Ohio
denied in part and granted in part plaintiffs’ motion
for conditional certification
Before the Sixth Circuit, defendants outlined the
problematic + antiquated conditional certification
process as rooted in a pre-Iqbal/Twombly district
court decision
Often resulted in cases being resolved without
consideration of defendants’ evidence due to
litigation expenses
Lusardi v. Xerox Corporation
Action was fully briefed and sent to oral argument
on December 7, 2022
Best Practices for
EMPLOYERS
Your first line of
defense against these
claims is to comply
with the law
Pay the federal minimum wage
Pay for travel time when working
between job sites
Pay non-exempt employees time-and-
a-half for overtime
Pay your employees timely
Improperly round hours
Alter employee timecards
Force employees to work off the clock
Write these
policies down +
enforce them
Mitigating
Risks of FLSA
Litigation
Mitigating Risks:
WAIVERS
Waivers require individuals to bring
claims individually + not on behalf of a
subset or group of people
Common tactic to avoid consumer class
actions, FLSA collective actions, FCRA
class actions
Prior cases argued class action waivers
were unconscionable if plaintiff could
prove would not be feasible to bring
claim individually
Supreme Court previously held, not
unconscionable when waiver part of
arbitration agreement because FAA
should be followed whenever possible
Waivers have proven
helpful in tip pool cases,
travel time cases,
non-traditional pay
structure cases +
misclassification cases
If you have an arbitration agreement
that contains a class waiver it is
permissible
A stand-alone class action waiver is
currently a violation of the NLRA
Potential
PROBLEMS
with Waivers
Compelled arbitration is not as
cheap or quick as you might believe
Many agreements include pretrial
motions and discovery just like a
court case – you also have to pay
the arbitrator
Potential
PROBLEMS
with Compelled
Arbitration
Arbitrators can grant continuances –
sometimes for long periods of time
They are not required to fast-track
proceedings
Appeals are unlikely unless you can
show fraud or corruption
Mitigating Risks:
INSURANCE
Your workers’ comp policy will not cover
wage and hour or labor related claims
other than workplace injuries
Your general liability policy may not cover
wage and hour or other labor-related
claims – if you’re not sure, find out
If you want to be sure you have
insurance coverage, you need either an
Employment Practices Liability Policy or
a dedicated Wage and Hours policy
If you’re worried about personal liability,
you may also need a D&O policy
Nicholas S. Bobb
nbobb@keglerbrown.com
keglerbrown.com/bobb
(614) 462-5414
Presented by
Brendan Feheley
21st Century
(ADA) Digital Boy
TODAY
We’ll Discuss
ADA in the WFH + Digital Era
Post-Employment Obligations
Under the FTC’s New Rule
Understanding the DOL’s New
Rules + What it Means for You
ADA in the
WFH + Digital Era
“I don’t know how to live, but I
got a lot of toys”
All employees eligible
Substantial limitation of major life activity
Requires dialogue
“Reasonable accommodation” can mean
anything
ADA
Americans with
Disabilities Act
Retaliation, discrimination, failure to
participate
Similar to ADA
Limitations do not need to rise to the level
of a disability under the ADA
Accommodations include food, water,
restroom breaks
Limited documentation can be requested
PWFA
Pregnant Workers
Fairness Act
Conditions related to, affected by, or arising
out of” pregnancy, childbirth, or related
medical conditions as including lactation,
miscarriage, stillbirth, and “having or
choosing not to have an abortion”
The Stats
More Cases
Less Wins
Hybrid Rules
Only Cases
Double the cases involving
telework from 2021-2023
Employers won 77% of telework cases
between 2017-2019; only 42% between
June 2022 and June 2023
70% of employers retain some
level of hybrid workplace
Doesn't consider accommodations
given before litigation
What does
home have that
work does not?
ADA remote
work
Teams
vs In-Person
Meetings
Is going to
the office
essential?
Protection of
Intellectual
Property
How do you
manage
productivity?
Can I Just Say “No”?
Some employers allow no flexible
work
Analyze any position request
you receive
Much easier for a class of jobs
than for an entire workplace
COVID-19 policies may play a role
Probably a better way
Attack the Need for
Remote Work
What is the ailment that cannot
be dealt with
Think about changing work
location within office
Part-time remote, or modified
workday
Any accommodation that
works is enough
Remote work here to stay in
some capacity
Judges starting to shy away
from "in-person attendance is
essential function"
Better to attack the justification
for the remote work
Post-Employment
Obligations Under
the FTC’s New Rule
“And I don’t want it – the
things you’re offering me”
FTC adopts a comprehensive ban on new
noncompetes with all workers, including
senior executives
Senior Executives with non-competes
currently are still bound by them
Only exception is a non-competes entered
into by a person pursuant to a bona fide
sale of a business entity
Effective date is 120 days after Federal
Register publication
Terms to Know
Non-Compete
A term or condition of employment that “prohibits a
worker from, penalizes a worker for, or functions to
prevent a worker from (1) seeking or accepting work in
the United States with a different person where such work
would begin after the conclusion of the employment that
includes the term or condition; or (2) operating a business
in the United States after the conclusion of the
employment that includes 6 § 910.2(b)(1). 7 § 910.2(b)(4).
8 § 910.2(a)(1). 9 § 910.2(a)(2). 4 the term or condition.”
Senior Executive
Refers to workers earning more than
$151,164 who are in a “policy-making
position”
What About NDAs
+ Non-Solicits?
What’s Old is New Again
“Functions to prevent” is a critical term
Overbroad NDAs act as a potential method
of evasion of the rule, overbroad NDAs as
functional non-competes
A term or condition that is so broad or
onerous that it has the same functional
effect as a term or condition prohibiting or
penalizing a worker from seeking or
accepting other work or starting a business
after their employment ends, such a term is
a non-compete clause under the final rule
Overly Broad
NDA/ Non-Solicit
How will the court interpret?
Probably similarly to current rule
for non-competes
Looking at duration and how
broad the definitions of
customers and information is
Will the Rule be
Challenged?
Already has been – filed in TX
Tax services firm sued FTC in the
Northern District of TX alleging
that the Final Rule violates the
Administrative Procedure Act
Expect more challenges to come
How Will it End?
Likely, new Rule will cause some
judges to be narrower in their
interpretations under current rules
Some states may be more
aggressive in legislating non-
competes
Examine your agreements/
customers/policies
Expect to be required to support
any agreement you have that
restricts an employee post-
employment
Current employees who meet
Senior Executives definition who
don't have non-competes should
get one, quickly
Understanding the
DOL’s New Rules +
What it Means for You
“I can’t explain it, the things
you’re saying to me”
FLSA regulation change increases salary
threshold for exempt on two separate dates
Similar to but not identical to 2019 change
Salary increases on two separate occasions
Divides employees into 3 classes
Challenge to rule making authority is
expected, but probably shouldn't wait
Specifics of the Rule
Raises salary twice, first in July
2024 then in January 2025
January 2025 salary is almost
double current salary of $684/wk
Highly compensated employee
threshold also adjusts
Automatic update every 3 years
Likely Challenge
Amount is too high
Can't have separate increases
in same Rule
Can't have automatic updates
without notice of rule + comments
FLSA shouldn't have a salary
threshold
Focuses on salary not duties
Employees convertible to
non-exempt
Employees stay salary and
don't work overtime
Classes of
EMPLOYEES
3
Employees get a raise
EMPLOYEES
Convertible to
Non-Exempt
Usually significantly below
new threshold
Work significant overtime,
often unpredictably
May be mid-management
made exempt by executive
exemption
How to Handle
Reclassification
Determine hours worked over a
representative period of time
Divide the hours worked by the
weeks in the period
Work backwards from weekly
salary to determine regular rate
Won't be exact due to
unpredictability
EMPLOYEES
Salaried
Non-Exempt
Very set schedule –
rarely work overtime
Duties can classify them as
exempt but pay won't
An example: manager
of a small office
How to Handle
Salaried Non-Exempt
Figure out how much expense will
come with addition of overtime
May be practically difficult to
significantly lower salary
Easier to eliminate/minimize
overtime
EMPLOYEES
Get a Raise
Typically, close to the new
threshold
Applicable when no real way
to accurately track hours
Does it make sense to
redefine position/dept
Make certain duties qualify
Look at whole departments not
just particular roles
Think about changing duties of
position to change hours/roles
If uncertainty around hours,
would alternative compensation
method be a fit?
Messaging to
affected employees?
Brendan Feheley
bfeheley@keglerbrown.com
keglerbrown.com/feheley
(614) 462-5482
2024 Managing Labor + Employee Relations Seminar

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2024 Managing Labor + Employee Relations Seminar

  • 1. 2024 Managing Labor + Employee Relations Seminar May 9, 2024
  • 3.
  • 4. Sources: Wikipedia; SCG Legal Counsel; Country Websites Legal or Illegal? Medical Marijuana Across the Globe
  • 5. Legal or Illegal? Recreational Marijuana Across the Globe Sources: Wikipedia; SCG Legal Counsel; Country Websites
  • 6.
  • 7.
  • 8.
  • 9. Federal Law + Marijuana Federal: Marijuana continues to be classified as a Schedule I drug under the Controlled Substances Act DOT: “It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”
  • 10. On August 29, 2023, the Department of Health and Human Services (HHS) reportedly recommended to the Drug Enforcement Administration (DEA) that marijuana be rescheduled from Schedule I to Schedule III under the Controlled Substances Act (CSA). DEA is currently reviewing HHS's recommendation
  • 11.
  • 12. Marijuana and certain cannabis infused products, including some Cannabidiol (CBD) oil, remain illegal under federal law except for products that contain no more than 0.3 percent THC on a dry weight basis or that are approved by FDA (See the Agriculture Improvement Act of 2018, Pub. L. 115-334)
  • 13. TSA + Marijuana TSA officers are required to report any suspected violations of law to local, state or federal authorities Screening procedures are focused on security and are designed to detect potential threats to aviation and passengers TSA officers do not search for marijuana or other illegal drugs But if found during security screening, TSA will refer to a law enforcement officers
  • 14. DOJ prohibited from spending money to prevent states from “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana” Budget Bill
  • 15. More like the ballot issue (5/23/23 – Referred to House Finance) HB168 Allow for Adult Use of Marijuana
  • 16. Built on expanding the medical marijuana program (5/16/23 – 7th Hearing, Senate General Government) SB9 Expands Ohio’s Medical Marijuana Program
  • 17. Initiated Statute Enacts Ohio Revised Code Chapter 3780 – “An Act to Control and Regulate Adult Use Cannabis” Ohio becomes the 24th state to legalize marijuana Issue 2
  • 19. Recreational Use/ Possession/Home Grow Started on December 7, 2023 Retail Sale Starts August 7, 2024 (or before)
  • 20. Recreational Marijuana Law – What Does It Do? Enables Ohioans over 21 years of age to use, possess (up to 2 ½ ounces and 15 grams of extract), and transport marijuana purchased through Ohio’s recreational marijuana program Enables Ohioans over 21 years of age to grow and possess 6 cannabis plants at their home Maintains the same distribution tiers under the medical marijuana programs (cultivators, processors, dispensaries) Enables landlords to prohibit tenants from growing or smoking marijuana as a term in lease agreements – hotel guests still unclear
  • 21. Recreational Marijuana Law – What Does It Do? Does not require a public place to accommodate an individual’s marijuana use Does not prohibit any public place from accommodating an individual’s marijuana use Establishes 10% tax on all sales of marijuana from dispensaries on top of traditional sales tax (7.25-7.5%) • 36% Cannabis Social Equity + Jobs Fund • 35% Host Community Cannabis Facilities Fund • 25% Substance Abuse and Addiction Fund • 3% Tax Administration
  • 22. Cultivators, processors, testing laboratories, and dispensaries currently licensed as a chapter 3796 medical marijuana facility seeking license conversion to a dual-use license as defined by Ohio Admin. Code 1301:18-1-01(A) Entities eligible for a 10(B) dispensary license as established by Ohio Admin. Code 1301:18-2-06
  • 23. All application materials for the applicants authorized to apply in accordance with paragraph A of this rule will be published no later than June 7, 2024
  • 25. Enables Ohioans over 21 years of age to use, possess and transport marijuana purchased through Ohio’s recreational marijuana program
  • 26. Issue 2 – Penalties: Prohibits the use, possession, cultivation, transporting, and sale of marijuana to be primary reason for taking any criminal action • 1 oz = 28 grams • Average marijuana cigarette (joint) = ½ g • 1 oz of marijuana = about 56 joints • 2.5 oz = 140 joints
  • 28. Employer Control Over the Workplace? Section 3780.35 Nothing in this chapter does any of the following: (A)(1) Requires an employer to permit or accommodate an employee’s use, possession, or distribution of adult use cannabis otherwise in compliance with this chapter (A)(2) Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of that individual’s use, possession, or distribution of cannabis otherwise in compliance with this chapter (A)(3) Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy
  • 29. Necessary Reforms Increase sales tax on marijuana products Alter tax distribution Add protections for children Increase law enforcement funding
  • 31. HB86 Amends Issue 2 Recreational Marijuana Law and Liquor Law
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  • 33. Why Should You Care? Workplace Challenges Americans with Disabilities Act/Anti-Discrimination Unemployment Compensation Workers’ Compensation: Drug-Free Workplace Program Premium Discounts Lawful Off-Duty Conduct
  • 34. Other Practical Considerations Hiring + Retention Challenges Losing Job Losing Parental Rights + Government Benefits Increasing Healthcare Costs
  • 35. Marijuana As A Reasonable Accommodation R.C. §3796.28: “Nothing in his chapter. . . requires an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana”
  • 36. Barbuto v. Advantage Sales + Marketing Mass. Supreme Court, July 17, 2017 Mass. Supreme Court reversed lower court dismissal of Barbuto’s disability discrimination complaint after she was terminated for testing positive for marijuana in her pre-employment drug screen Barbuto was taking marijuana for her Crohn’s disease but not before work or at work Court said employer still needed to engage in interactive process regarding accommodation NOTE: Ohio law specifically states no accommodation is required
  • 37. Adopt policies that emphasize it’s illegal to work under the influence or consume drugs at the workplace and that there will be legal consequences for not obeying those policies 1 Work with a reputable drug testing company that administers random testing, documents a comprehensive + defensible chain of custody, ensures employee privacy, and complies with all state + federal regulations” 2 Keep watching what the House and Senate may do on clarifying the marijuana statute 3 Action Steps for Ohio Employers
  • 38. Areas of Concern Employers with locations in other states need to become familiar with all state laws as each law is different Terminating with no evidence of “impairment” Knowledge of reason for medical marijuana card could lead to knowledge of disability Policy and CBA implications
  • 40. Tony Fiore Director, Kegler Brown Director, Government Affairs, Ohio SHRM tfiore@keglerbrown.com keglerbrown.com/fiore (614) 462-5428
  • 41.
  • 42. Presented by Danielle Crane No More Nonsense: Workplace Harassment Investigations, Documentation + Retaliation Awareness
  • 44. Quid Pro Quo Harassment “This for that” Express or implied demands for action in exchange for a benefit or to avoid a detriment Usually supervisory and usually based on sex
  • 45. Hostile Work Environment Offensive or unwelcome conduct Based on a protected characteristic Severe + pervasive Impairs work or creates an intimidating, abusive, or offensive work environment
  • 46. Employer’s OBLIGATIONS Liability attaches where: Employer knew/should’ve known of problem Employer did nothing Employer’s response was insufficient Retaliation was involved Employer didn’t have clear policy
  • 47. Reporting Procedures No “one size fits all” Make sure your managers know how to discern general complaints from ones that trigger employer action
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  • 50. What to do while investigation is PENDING Stop conduct: suspension without pay, separating employees, work from home, etc. Advise everyone of confidentiality + anti-retaliation obligations
  • 51. Investigation Interviews Complainant, Harasser, Witnesses Ask the “W” questions Start general, then drill down Use this time to clarify inconsistencies
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  • 54. Ultimately, YOU have to figure out what happened + if it’s harassment
  • 57. Report or Other DOCUMENTATION? Depends on complaint and determinations for how the investigation was going to progress that you made at the beginning
  • 58. Formal Report State who did the investigation to the person who will decide what action to take List investigation steps, evidence received, facts Quote relevant policies Determination Optional: recommendations
  • 61. What is Protected Conduct? Making a report Participating in an investigation as a witness Filing a charge
  • 62. What is an Adverse Employment Action? One that “might well dissuade a reasonable worker from making or supporting a charge of discrimination” Less burdensome than discrimination claims
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  • 79. Presented by Nicholas S. Bobb Mastering FLSA Collective + Class Actions
  • 81. Employees who believe they have been subject to similar FLSA violations by their employer may join together in a single lawsuit Address common wage + hour violations affecting multiple employees, typically involving issues such as unpaid overtime or minimum wage violations Definition + PURPOSE
  • 82. Requirements for FILING One or more employees must file a lawsuit against the employer on behalf of themselves + others similarly situated Employees must opt in to join the lawsuit To initiate an action the named plaintiff files both a complaint + a consent form Statute of limitations of an opt-in plaintiff’s claim tolls from the date on which the consent form is filed but may resume if collective action certification is denied or the opt-in plaintiff is dismissed
  • 83. Certification PROCESS In a collective action, there is no formal certification process or criteria Up until last year, courts in Ohio generally used a two-stage approach Conditional certification stage: the court applies a lenient standard to decide whether to issue notice to similarly situated employees Post-discovery stage: the court applies a more rigorous standard + makes a final determination about whether named and opt-in plaintiffs are similarly situated
  • 84. If final certification is granted, the case may proceed to trial as a collective action
  • 85. Common Impediments to Collective Action Lack of connection with state where the suit is brought Too tenuous a connection between plaintiffs Too tenuous a connection between claims
  • 86. What is “similarly situated” for purposes of certification?
  • 87. Role of Representative Plaintiffs Initiate the collective action on behalf of themselves and other potential plaintiffs Have a duty to represent the interests of the collective group throughout the litigation process
  • 88. Advantages Flexibility: Plaintiffs can join the lawsuit voluntarily, allowing for a more tailored approach to representation Direct involvement: Plaintiffs have more direct involvement in the litigation process compared to class actions Lower certification threshold: Plaintiffs must only show that they are similarly situated to join the action Challenges Opt-in process: Convincing potential plaintiffs to opt in to the lawsuit can be challenging Individualized claims: Managing a potentially diverse group of plaintiffs with individualized claims and circumstances Coordination: Coordinating the efforts of multiple plaintiffs and their attorneys throughout the litigation process
  • 90. Lawsuits filed on behalf of a group or “class” of employees who have similar claims against their employer regarding violations of the FLSA Efficiently resolve disputes involving wage and hour violations that affect numerous employees, rather than requiring each individual employee to file a separate lawsuit Definition + PURPOSE
  • 91. Requirements for CERTIFICATION Before a lawsuit can proceed, the class of employees seeking to bring the lawsuit must be certified by the court The class must be so numerous that joinder of all members is impracticable There must be common questions of law or fact among the class members The claims of the class representatives must be typical of the claims of the class The class representatives must fairly represent the interests of the class
  • 92. Opt-Out Process for Potential Class Members Potential class members are typically given the opportunity to “opt out” + pursue their own claims Class members who do not opt out are bound by the court's decision in the class action
  • 93. Role of Class Representatives FLSA class actions are typically initiated by one or more named plaintiffs, who act as representatives of the entire class They have a duty to fairly + adequately represent the interests of all class members throughout the litigation process
  • 94. Advantages Efficiency: Allows for the resolution of claims involving numerous employees in a single lawsuit Cost-effectiveness: Sharing legal expenses among class members Strength in numbers: Increased bargaining power when negotiating settlements Challenges Complexity: Managing a large group of plaintiffs with potentially diverse claims and circumstances Certification requirements: Meeting the criteria for class certification can be challenging Opt-out process: Some class members may choose to opt out, reducing the size of the class
  • 96. Class Opt-out: Potential class members are automatically included in the lawsuit unless they choose to opt out Certification required: The class of employees seeking to bring the lawsuit must be certified by the court Stringent threshold: Plaintiffs required to meet specific criteria established by the court Collective Opt-in: Potential plaintiffs must affirmatively choose to join the lawsuit by signing a consent form No formal certification: Certification is not required, although plaintiffs must show they are similarly situated to the named plaintiffs Lower threshold: Potential plaintiffs need only show they are similarly situated to join
  • 97. Class Representative plaintiffs initiate the lawsuit Larger group of plaintiffs: Typically involve a larger group of plaintiffs, often with diverse claims and circumstances. The outcome of the lawsuit generally applies to all class members unless they choose to opt out. Collective Named plaintiffs initiate the lawsuit Smaller group of plaintiffs: May involve a smaller, more cohesive group of plaintiffs who have opted in to join the lawsuit. Each opt-in plaintiff's claims are typically addressed individually, although they are litigated collectively.
  • 99. Southern District of Ohio conditionally certified in part a collective action against defendants Proposed class was comprised of home health aides seeking overtime and shift differential pay Clark, et al. v. A&L Home Care & Training Center On August 4, 2021, the Southern District of Ohio denied in part and granted in part plaintiffs’ motion for conditional certification
  • 100. Before the Sixth Circuit, defendants outlined the problematic + antiquated conditional certification process as rooted in a pre-Iqbal/Twombly district court decision Often resulted in cases being resolved without consideration of defendants’ evidence due to litigation expenses Lusardi v. Xerox Corporation Action was fully briefed and sent to oral argument on December 7, 2022
  • 102. Your first line of defense against these claims is to comply with the law
  • 103. Pay the federal minimum wage Pay for travel time when working between job sites Pay non-exempt employees time-and- a-half for overtime Pay your employees timely
  • 104. Improperly round hours Alter employee timecards Force employees to work off the clock
  • 105. Write these policies down + enforce them
  • 107. Mitigating Risks: WAIVERS Waivers require individuals to bring claims individually + not on behalf of a subset or group of people Common tactic to avoid consumer class actions, FLSA collective actions, FCRA class actions Prior cases argued class action waivers were unconscionable if plaintiff could prove would not be feasible to bring claim individually Supreme Court previously held, not unconscionable when waiver part of arbitration agreement because FAA should be followed whenever possible
  • 108. Waivers have proven helpful in tip pool cases, travel time cases, non-traditional pay structure cases + misclassification cases
  • 109. If you have an arbitration agreement that contains a class waiver it is permissible A stand-alone class action waiver is currently a violation of the NLRA Potential PROBLEMS with Waivers
  • 110. Compelled arbitration is not as cheap or quick as you might believe Many agreements include pretrial motions and discovery just like a court case – you also have to pay the arbitrator Potential PROBLEMS with Compelled Arbitration Arbitrators can grant continuances – sometimes for long periods of time They are not required to fast-track proceedings Appeals are unlikely unless you can show fraud or corruption
  • 111. Mitigating Risks: INSURANCE Your workers’ comp policy will not cover wage and hour or labor related claims other than workplace injuries Your general liability policy may not cover wage and hour or other labor-related claims – if you’re not sure, find out If you want to be sure you have insurance coverage, you need either an Employment Practices Liability Policy or a dedicated Wage and Hours policy If you’re worried about personal liability, you may also need a D&O policy
  • 113.
  • 114. Presented by Brendan Feheley 21st Century (ADA) Digital Boy
  • 115. TODAY We’ll Discuss ADA in the WFH + Digital Era Post-Employment Obligations Under the FTC’s New Rule Understanding the DOL’s New Rules + What it Means for You
  • 116. ADA in the WFH + Digital Era “I don’t know how to live, but I got a lot of toys”
  • 117. All employees eligible Substantial limitation of major life activity Requires dialogue “Reasonable accommodation” can mean anything ADA Americans with Disabilities Act Retaliation, discrimination, failure to participate
  • 118. Similar to ADA Limitations do not need to rise to the level of a disability under the ADA Accommodations include food, water, restroom breaks Limited documentation can be requested PWFA Pregnant Workers Fairness Act Conditions related to, affected by, or arising out of” pregnancy, childbirth, or related medical conditions as including lactation, miscarriage, stillbirth, and “having or choosing not to have an abortion”
  • 119. The Stats More Cases Less Wins Hybrid Rules Only Cases Double the cases involving telework from 2021-2023 Employers won 77% of telework cases between 2017-2019; only 42% between June 2022 and June 2023 70% of employers retain some level of hybrid workplace Doesn't consider accommodations given before litigation
  • 120. What does home have that work does not? ADA remote work Teams vs In-Person Meetings Is going to the office essential? Protection of Intellectual Property How do you manage productivity?
  • 121. Can I Just Say “No”? Some employers allow no flexible work Analyze any position request you receive Much easier for a class of jobs than for an entire workplace COVID-19 policies may play a role Probably a better way
  • 122. Attack the Need for Remote Work What is the ailment that cannot be dealt with Think about changing work location within office Part-time remote, or modified workday Any accommodation that works is enough
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  • 124. Remote work here to stay in some capacity Judges starting to shy away from "in-person attendance is essential function" Better to attack the justification for the remote work
  • 125. Post-Employment Obligations Under the FTC’s New Rule “And I don’t want it – the things you’re offering me”
  • 126. FTC adopts a comprehensive ban on new noncompetes with all workers, including senior executives Senior Executives with non-competes currently are still bound by them Only exception is a non-competes entered into by a person pursuant to a bona fide sale of a business entity Effective date is 120 days after Federal Register publication
  • 127. Terms to Know Non-Compete A term or condition of employment that “prohibits a worker from, penalizes a worker for, or functions to prevent a worker from (1) seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or (2) operating a business in the United States after the conclusion of the employment that includes 6 § 910.2(b)(1). 7 § 910.2(b)(4). 8 § 910.2(a)(1). 9 § 910.2(a)(2). 4 the term or condition.” Senior Executive Refers to workers earning more than $151,164 who are in a “policy-making position”
  • 128. What About NDAs + Non-Solicits?
  • 129. What’s Old is New Again “Functions to prevent” is a critical term Overbroad NDAs act as a potential method of evasion of the rule, overbroad NDAs as functional non-competes A term or condition that is so broad or onerous that it has the same functional effect as a term or condition prohibiting or penalizing a worker from seeking or accepting other work or starting a business after their employment ends, such a term is a non-compete clause under the final rule
  • 130. Overly Broad NDA/ Non-Solicit How will the court interpret? Probably similarly to current rule for non-competes Looking at duration and how broad the definitions of customers and information is
  • 131. Will the Rule be Challenged? Already has been – filed in TX Tax services firm sued FTC in the Northern District of TX alleging that the Final Rule violates the Administrative Procedure Act Expect more challenges to come
  • 132. How Will it End? Likely, new Rule will cause some judges to be narrower in their interpretations under current rules Some states may be more aggressive in legislating non- competes
  • 133. Examine your agreements/ customers/policies Expect to be required to support any agreement you have that restricts an employee post- employment Current employees who meet Senior Executives definition who don't have non-competes should get one, quickly
  • 134. Understanding the DOL’s New Rules + What it Means for You “I can’t explain it, the things you’re saying to me”
  • 135. FLSA regulation change increases salary threshold for exempt on two separate dates Similar to but not identical to 2019 change Salary increases on two separate occasions Divides employees into 3 classes Challenge to rule making authority is expected, but probably shouldn't wait
  • 136. Specifics of the Rule Raises salary twice, first in July 2024 then in January 2025 January 2025 salary is almost double current salary of $684/wk Highly compensated employee threshold also adjusts Automatic update every 3 years
  • 137. Likely Challenge Amount is too high Can't have separate increases in same Rule Can't have automatic updates without notice of rule + comments FLSA shouldn't have a salary threshold Focuses on salary not duties
  • 138. Employees convertible to non-exempt Employees stay salary and don't work overtime Classes of EMPLOYEES 3 Employees get a raise
  • 139. EMPLOYEES Convertible to Non-Exempt Usually significantly below new threshold Work significant overtime, often unpredictably May be mid-management made exempt by executive exemption
  • 140. How to Handle Reclassification Determine hours worked over a representative period of time Divide the hours worked by the weeks in the period Work backwards from weekly salary to determine regular rate Won't be exact due to unpredictability
  • 141. EMPLOYEES Salaried Non-Exempt Very set schedule – rarely work overtime Duties can classify them as exempt but pay won't An example: manager of a small office
  • 142. How to Handle Salaried Non-Exempt Figure out how much expense will come with addition of overtime May be practically difficult to significantly lower salary Easier to eliminate/minimize overtime
  • 143. EMPLOYEES Get a Raise Typically, close to the new threshold Applicable when no real way to accurately track hours Does it make sense to redefine position/dept Make certain duties qualify
  • 144. Look at whole departments not just particular roles Think about changing duties of position to change hours/roles If uncertainty around hours, would alternative compensation method be a fit? Messaging to affected employees?