Labor and Employment Law for Solo Attorneys

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

For Discrimination Claims
Generally,

•Ohio – 4 employees

•Federal – 15 employees

Matt Austin 614-734-0000 Matt.Austin@Austin-Legal.com

Prohibited Activities
Hire, Fire, Retaliate, Term/Condition, Impact
Most Common
• Race, Sex, Age, Religion
Less Common
• Gender, Pregnancy, Family Responsibility
• National Origin, Color
• Military Status, Unemployment
• LGBT/Transgender, Associational


Examples of Protected Activity
• Obvious ones: sex and race

• Filing charge of discrimination with EEOC / OCRC

• Complaining to management about alleged
discrimination

• Serving as witness in discrimination investigation,
hearing, judicial proceeding


BFOQ Exception

• Only if characteristic is intrinsic to the job

• Must prove that no member of the group
discriminated against can perform the job


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)


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 person


Legal Standard for Discrimination
Burden Shifts to Defendant

Prove legitimate non-discriminatory reason for the action

Burden Shifts to Plaintiff

Prove defendant’s reasons for the action were pretextual


Trends in Discrimination
Pregnancy
• Ohio recently passed 12 unpaid weeks
• Light duty if needed
• Eligible first day of work

Military
• Not hiring because of risk of being deployed
• Unemployed upon return from active duty

Religion
• All things Muslim
• Challenging religions upon first hearing about them


Attorney Tips
Representing 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

Social Media and
Employment Law
Employer Concerns

• Productivity
• Reputational Management
• Confidential / Trade Secrets
• Discrimination / Harassment Claims


Social Media in Litigation
Generally relevant info on social networking sites are
admissible evidence

Discovery has become tedious, expensive

Social media used to
• refute claims of emotional distress
• refute overtime hours
• prove violations of confidentiality / non-solicitation agreements


Social Media and ESI
Social media is considered electronically stored
information

Cost in retrieval may be shifted to the requesting or
requested party

Duty to preserve
Model Rule 1.3 may put affirmative duty on attorney to ask client for
social media up front


Social Media Policies
Hot topic right now

Social Media not generally covered in computer
use / IT policies

Tips on how to create and implement policy in
handout


NLRA Applies to Non-Union
Workplaces, Too
What is the NLRA

• Governs collective bargaining relationship of private
companies and unions

•Encourages employees to form, join, assist labor unions

• Protects employees who engage in “concerted activity”
for “mutual aid or protection”


Unlawful Under NLRA

To interfere with, restrain, coerce, discharge, or
otherwise discriminate against employees in the
exercise of their NLRA rights


NLRA Applies to Handbooks
Policies cannot prohibit employees’ ability to
engage in concerted activity

• Wages, discipline, working conditions
• No solicitation (leafletting, Girl Scout cookies)
• Employee committees
• Cannot refuse to hire based on union affiliation


NLRA Applies to
Union Organizing Drives
What employers cannot do:
Threaten
Interrogate
Promise
Surveillance


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 companies


NLRA Applies to Social Media
Major movement

Posts involving working conditions and other
employees seem to be covered (usually)


OK to do the following:

• Call boss “scumbag”

• Complain that BMW dealership offered hot dogs and chips at
event

• Post/Respond “A coworker feels that we don’t help our
clients enough at HUB. I about had it! My fellow coworkers
how do you feel?”


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 in
this 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 any
person’s privacy and confidentiality or that may damage the reputation of the
employer, staff, or employees

• To have blogging policy that prohibited confidential and proprietary
information or inappropriate discussions about employer, management, or
coworkers

NLRA Disclaimer in Social Media
Policy

“Nothing in this Policy is intended to or will be
applied in a manner that limits employees’ rights to
engage in protected concerted activity as
prescribed by the National Labor Relations Act.”

May help


Labor and Employment Law for Solo Attorneys

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