Author: Daniel Bryant

What is Retaliation?

Workplace retaliation can negatively impact the trajectory of your career. It can cause the loss of your job, demotion or being passed over for promotion, job reassignment, cut hours, and/or lost wages. 

Retaliation occurs when an employer takes an adverse action against you because you engaged in a protected activity. 

What is a Protected Activity?

“Protected activity” is very broad. 

A non-exhaustive list of protected activities includes, but is not limited to, the following:

• Refusing to follow orders that would result in discrimination
• Assisting in an Equal Employment Opportunity Commission (EEOC) or agency investigation (i.e., whistleblowing)
• Filing a complaint of discrimination with the EEOC
• Participating in any manner in an internal investigation, proceeding, or hearing involving allegations of workplace discrimination
• Filing or participating in a discrimination lawsuit
• Witnessing an EEOC charge, complaint, investigation, or lawsuit
• Communicating with a manager or a supervisor about employment discrimination
• Opposing discrimination in the workplace (even if it is not you directly who has been discriminated against)
• Resisting sexual harassment or stepping in to protect others from it
• Talking about wages with fellow employees or supervisors, regardless of a union’s involvement

How Do You Prove Retaliation?

Proving unlawful retaliation can make sure you receive the compensation you deserve — but it’s not easy.

Establishing retaliation requires you to prove 3 components, and failure to prove just one of these items can end in your case being tossed out.

An experienced employment attorney can help determine if you have met these components, gather the evidence you need to support your claim and build a retaliation case against your employer. 

Contact Bryant Legal LLC for a free case consultation.

The 3 Components of a Workplace Retaliation Claim

In order to prove a retaliation claim, you have to show the following 3 components are  true:

1. Participation in a Protected Activity or Refusal to Obey an Illegal Act

There are 2 types of retaliation: retaliation to opposition and retaliation to participation.

Retaliation to opposition refers to retaliating against an employee who has refused to obey a discriminatory order. It can also be applied to employees:

• Making a complaint of discrimination about alleged discrimination for themselves or others
• Picketing to oppose harassment or discrimination
• Threatening to file a discrimination charge

Retaliation to participation focuses on retaliation against employees engaging in protected activities, such as:

• Filing a charge of discrimination
• Opposing unlawful conduct (or testifying about said unlawful conduct)
• Participating in an investigation, proceeding, or hearing about the unlawful conduct

If you have done either of these things, then you can continue to the next component.

2. Your Employer Took Adverse Action Against the Employee

You need to prove that your employer took adverse action against you.

Common forms of retaliation against an employee may include:

• Discrimination or harassment
• Demotion
• Suspension
• Termination or firing
• Failure to promote
• Reassignment to a position with vastly different responsibilities or requirements
• Verbally abusing employees who participated in a protected activity, thus creating a hostile work environment
• An adverse employment decision that causes a significant change in benefits, such as a reduction in a full-time employee’s work hours that would result in the loss of health care benefits

These are only a handful of retaliatory actions. If your employer took a negative action against you that is not listed above, it is possible you still may have a case.

The retaliation attorneys at Bryant Legal LLC can help determine if you can make a successful claim of retaliation — contact us today.

3. Inference of Retaliation: Connecting the Employer’s Adverse Action and the Employee’s Protected Activity

Proving causation (that is, the proof that your participation in the protected activity triggered your employer’s adverse action) is one of the most difficult parts to prove, as these cases typically rely on circumstantial evidence.

It is rare for an employer to directly state or even admit that they demoted, fired, or suspended you because you engaged in a protected activity. 

Even if they have, it’s your word against your employer’s word, which probably wasn’t a recorded conversation.

You must make the connection between the adverse action and the protected activity, even though there may not be a direct link. 

For example, if an individual who is qualified under the Americans with Disabilities Act requests a reasonable accommodation is transferred to a different job after making that request, this can be considered retaliation.

Making a reasonable accommodation request is considered a protected activity and transferring the employee to a different job is considered an adverse action.

While the employer never said why this employee was transferred to a different job, it can be inferred that it was because of the employee’s reasonable accommodation request.

Likewise, if an employee files a sexual harassment complaint with the employer’s human resources department (a protected activity), the employer may:

• Reassign them to less favorable projects
• Stop including them in meetings
• Tell coworkers not to speak with them

Managers and supervisors did not treat the employee differently prior to their report of harassment in the workplace. We can infer that these are adverse actions and because we’ve established that connection, we can prove it as retaliation.

Bryant Legal LLC Can Help You Prove Retaliation in the Workplace — Contact Us Today

Although it may seem simple at first glance, it is difficult to prove retaliation.

That’s why it’s important to contact an employment lawyer at Bryant Legal LLC. Our employment law attorneys can help you make the connection between the protected action and adverse action and gather evidence of retaliation that is considered admissible in court.

You need every piece of evidence to ensure the outcome of your retaliation case is in your favor, and we will do everything we can to tip the scales in that direction. If you believe you have experienced retaliation and are protected against retaliation, contact the retaliation attorneys at Bryant Legal LLC, and we’ll see what can be done about your case.

Bryant Legal, LLC is pleased to announce that employment attorney Dan Bryant has been selected for inclusion by his peers to the 2023 Super Lawyers Rising Stars list in the practice area of labor and employment law on behalf of employees.

Dan has been selected to this specific Super Lawyers list since 2020.

Dan looks forward to vigorously advocating on behalf of his clients. At Bryant Legal, LLC, Dan regularly represents individuals, whether that be an employee or a group of employees, who have been subject to civil rights violations under federal and Ohio law. Dan also represents individuals and groups of individuals in collective and class actions to pursue the recovery of unpaid overtime and minimum wage violations in a variety of wage and hour matters. 

What is the Super Lawyers Rising Star List?

The Rising Stars list recognizes the top 2.5 percent of the lawyers in the state who are 40 years old or younger and have been in practice for 10 years or less. Only the top attorneys and most outstanding lawyers from more than 70 practice areas in each state are selected for inclusion in Super Lawyers lists.

What is the Nomination and Selection Process for Super Lawyers and Rising Stars?

The Super Lawyers selection process requires a high degree of peer recognition and professional achievement as well as its own independent research and evaluation. This includes high reviews on lawyer rating services, their work personally observed in action, and nominations from other lawyers and peer evaluations by practice area, which are measured and weighed using 12 indicators of peer recognition.

If you believe you are in need of an employment attorney in a wrongful termination or wage and hour matter, contact Bryant Legal, LLC for more information.

Bryant Legal, LLC is pleased to announce that as of January 1, 2022, Matthew B. Bryant has successfully completed all requirements of the Ohio State Bar Association and is now an OSBA-Certified Specialist in Labor and Employment Law!

The Ohio State Bar Association is accredited to certify specialists in 11 practice areas. Attorneys who wish to become a certified specialist must meet the following requirements:

1. Demonstrate a high level of substantive involvement in their specialty area.
2. Fulfill ongoing education requirements.
3. Be favorably evaluated by other attorneys and judges familiar with their work.
4. Take and pass a written examination in their specialty field.

Not every employment lawyer can say they are a specialist in their particular field of practice, and Matt is excited to continue helping employees in all facets of employment law as a Certified Specialist!

What is National Disability Employment Awareness Month?

National Disability Employment Awareness Month (NDEAM for short) is held every October to celebrate the contributions of people with disabilities to workplaces in the United States.

What is the theme for National Disability Employment Awareness Month 2021?

Every year, the U.S. Department of Labor proposes a different theme for NDEAM. The theme for 2021 is “America’s Recovery: Powered by Inclusion.” This theme is intended to stress the importance of people with disabilities to be able to have access to employment opportunities as our country tries to recover from the ongoing COVID-19 pandemic.

What does disability awareness mean?

Disability awareness is intended to educate the general population about how we can be a more inclusive and equitable place for everyone, including those with or without a disability.

How can I participate in National Disability Employment Awareness Month?

Review policies

This month is a great time to review your company’s policies as well as take into consideration if there are things you can do to help create a more inclusive culture at the office or one that’s more accessible.

Educate yourself and others through disability training

One person cannot create an inclusive environment at their workplace. It takes a team effort, and if not everyone is fully on board, that can create serious issues at every level. One way to build that inclusive environment is to propose and/or host a disability training session. There are many local disability organizations out there and some of them may offer workplace training programs.

Be a mentor for a day (or longer)

Disability Mentoring Day is observed nationwide on the third Wednesday of every October, right in the middle of National Disability Employment Awareness Month. (This year, the exact date is October 13, 2021.) This day is used to further career development for youth with disabilities in a number of ways, including:

• hands-on programs
• job shadow opportunities
• mentorships

Of course, you don’t have to be a mentor just on this holiday; you can offer mentorship programs and other opportunities throughout the month or throughout the year.

The American Association of People with Disabilities (AAPD) website has further information on how you can implement a Disability Mentoring Day event and make a positive impact on another person’s life.

I’m an employee with disabilities — what are my rights in the workplace?

Employees with disabilities are protected from discrimination by the Americans with Disability Act of 1999 (ADA), as amended (ADAAA). The ADA/ADAAA is a federal law that prohibits certain entities — including but not limited to private employers, employment agencies, labor organizations, or joint labor management committees — from discriminating against a qualified individual (including job applicants, employees and former employees, or participants in training or apprenticeship programs) because of their disability in any aspect of employment. An aspect of employment includes hiring practices, job application procedures, advancement or promotions, compensation, job training, discharge of employee, and other terms, conditions, and privileges of employment. In 2008, the Act was amended to expand coverage to the broadest extent.

Disability discrimination occurs when an entity covered by the ADA treats a qualified individual with a disability differently (that is, less favorably) because they have a disability. Qualified individuals can be employees or an applicant in the hiring process.

Disability under the ADA/ADAAA

Under the ADA, a disability is defined in 3 ways:

1. a physical or mental impairment that substantially limits 1 or more life activities;
2. having a record of an impairment; or
3. being perceived as having an impairment.

A physical impairment can affect one or more body systems. Examples of physical impairments include a disorder or condition, cosmetic disfigurement, or the loss of a body part that affects one or more body systems.

Mental impairments include mental and psychological disorders, such as learning disabilities, intellectual disabilities, and emotional or mental illnesses (i.e., depression).

Importantly, to have a disability, it does not have to be a permanent condition. It also does not have to manifest negative symptoms on a frequent basis. For example, if you have a heart condition, but it is controlled through prescription medication, it can still be a disability.

Reasonable accommodation

To be protected under the ADA, you must be able to perform the essential functions of your position with or without an accommodation. What does that mean? Let’s assume an employee suffers from migraines at times. For purposes of this hypothetical, the employee’s job duties require him to be in an office setting. When migraines occur, dimming the lights and/or wearing sunglasses inside helps prevent and/or lessen the negative symptoms associated with migraines. Is this a reasonable accommodation for an individual? Generally, yes, so long as the individual can perform the essential functions of the position and does not cause the employer undue hardship.

Although no formal words are required, you must request a reasonable accommodation to your supervisor or the HR department. This request can be reported either verbally or in writing. When the request is reported, the employer has an ongoing duty to engage in an interactive process to determine whether there is a reasonable accommodation(s). This interactive process is individualized for each person. Here are some examples of reasonable accommodations:

• job restructuring
• additional medical leave beyond the permitted amount under FMLA
• reassignment to an open position
• light duty
• modified work schedules and policies
• flexible leave
• specialized training
• purchase and/or provision of equipment and devices such as readers, personal assistants, and communication access providers

As mentioned above, reasonable accommodation requires you to perform the essential functions of your job, and your employer cannot unilaterally determine that you are unable to perform your job. If your disability makes it impossible for you to perform those essential functions, however, you may not be protected under the ADA. Each situation is highly individualized, so it is best to contact an employment attorney who represents employees to discuss your options.

Speak to an attorney about your disability rights during National Disability Employment Awareness Month

National Disability Employment Awareness Month is about more than educating people about disabilities — it’s about ensuring your rights are not being violated in the workplace.

Disability discrimination is more common than you may be aware and it is possible your employee rights are being violated through discrimination.

If you believe you have been discriminated against because of a disability, actual or perceived, or from having a record of a disability, contact the Columbus, Ohio, and Toledo, Ohio, disability discrimination lawyers at Bryant Legal LLC.

Employers such as restaurants, bars, strip clubs, and those who employ delivery drivers, among others, tend to pay employees at a rate that is less than the full minimum minimum wage. The difference is made up by customers who pay tips. This is called a “tip credit.” However, in order for an employer to enjoy the benefit of claiming a tip credit towards meeting the requirements of paying an employee minimum wage, there are a few rules that an employer must follow. If not, a “tipped employee” must be paid the full minimum wage for every hour he or she works. The employee may also recover double damages under federal law and triple damages under the Ohio Constitution (yes, that means triple damages for every hour). Before explaining in more detail, here are the 5 rules for “tipped employees:”

Rule #1: Tip credit employees must be paid at least minimum wage. This seems obvious, but employers fail to meet this minimum requirement due to a variety of reasons, such as an employee having a slow shift or an employer passes on business expenses onto the employee, among other reasons.

Rule #2: Under the Fair Labor Standards Act (FLSA) and Ohio law, a tipped employee is a worker who customarily and regularly receives tips that exceed $30 a month. It cannot be sporadic. For example, during months where you do not receive $30 or more in tips, you are entitled to the full minimum wage.

Rule #3: Managers, supervisors, and owners cannot retain tips. Tips are the property of the tipped employee and can only be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips (rule #2). This rule applies even if an employee is paid at least the full minimum wage for every hour.

Rule #4: Next, they must first be informed of their rights as a tipped employee prior to being paid less than the full minimum wage. If not, the employee must be paid the full minimum wage. For example, any of tip credit provisions such as (1) the amount of cash wage the employer paid tipped employees; (2) the additional amount claimed by an employer as a tip credit, which cannot exceed $5.12; (3) that the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee; (4) that all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and (5) that the tip credit will not apply to tipped employees unless the employee has been informed of the tip credit provisions.

If a “tipped” employee is not first informed of these rights, an employer cannot pay them less than the full minimum wage.

Rule #5: While Ohio law mirrors the FLSA, there is a slight wrinkle in that Ohio’s minimum wage has increased each year (while federal minimum wage has not). Under Ohio law, employers may claim a tip credit of up to half of the full minimum wage during the applicable year. The applicable minimum wage rates have increased the last several years, so if an employer keeps an employee’s rate at the same rate despite Ohio’s minimum wage increasing the next year, it would violate the Ohio Constitution. For example, let’s assume an employee is paid $4.28 per hour (which is 1/2 of the minimum wage rate in Ohio for 2019). In 2020, it increased to $8.70, which means the tip credit rate for that year was $4.35 per hour (1/2 of the minimum wage rate). If an employee is still paid $4.28 per hour, it would violate the Ohio Constitution and the employee is entitled to be paid the full minimum wage for every hour (plus triple damages).

What is a tipped employee?

While tipped workers can be paid less than the minimum wage, there are many ways in which they are paid less in violation of the law, including misclassifying employees as a tipped worker, miscalculating overtime pay on the wrong basis, or operating a tip pool improperly.

Many times, individuals assume they are being paid properly because they receive tips and trust that their employer is complying with the law. However, the rules governing tipped employees are complex and require the attention of a wage and hour attorney who regularly practices in this area of the law.

In Ohio, a tipped employee is an employee who:

1. regularly and customarily receives $30 or more per month in tips; and
2. must be paid at a legal base rate of ½ of Ohio’s minimum wage for the applicable year.

For example, if Ohio’s minimum wage in 2021 is $8.80, you must be paid at least $4.40 per hour and regularly and customarily receive $30 or more per month in tips. In Ohio, employers with annual gross receipts of at least $305,000 are subject to Ohio law. 

Employees must be paid the minimum wage when tips are combined with the tipped hourly wage. The federal minimum wage is currently $7.25 per hour; Ohio’s is $8.80 per hour (for 2021, but Ohio’s minimum wage is expected to increase in 2022 onward). If you are not receiving at least the applicable minimum wage (i.e., the employer had a slow week and the like), the employer must make up the difference in wages so that you are paid the minimum wage.

Tip credit

As explained above, tip credits allow employers to pay employees less than the minimum wage, as long as employees’ combined tip and cash wage earnings are equivalent to the minimum wage or exceed minimum wage.

Tip credits are calculated by subtracting the cash wage from the minimum wage (minimum wage – cash wage = tip credit). The FLSA allows a tip credit of $2.13 per hour against the federal minimum wage of $7.25 per hour. In Ohio, employers must pay a tipped employee at least half of the applicable minimum wage for that year. For example, the minimum wage in Ohio for 2021 is $8.80, and the cash wage is $4.40. By subtracting $4.40 from $8.80, the tip credit will be $4.40 ($8.80 – $4.40 = $4.40).

• must regularly make $30 in tips each month
• be paid an hourly cash wage
• retain all tips
• be given advance notice of tip credit either orally or in writing

In Ohio, the tip credits claimed by the employer cannot exceed $4.40 or the amount of tips a tipped employee receives. If the employee’s tips and cash wage do not equal the minimum wage, the employer is required to make up the difference.

Employers are required to inform tipped employees of tip credit policies. Relying on the information that employees may be able to infer from pay stubs does not count as informing employees.

Failure to inform employees about tip credit policies means employers cannot legally claim tip credits.

Job duties that do not generate tips

In addition, there are many examples where a “tipped employee” performs non-tip-generating job duties (i.e. security personnel, rolling silverware, folding napkins, bussing tables, cleaning up, setting up, closing down, among other scenarios). If a tipped employee spends 20% or more of the workweek performing the non-tipped job duties, you must be paid the full minimum wage for such hours associated with those duties.

Overtime for tipped employees

Are tipped employees entitled to overtime?

Yes. However, this is where violations are likely to occur. As to federal law, employers must multiply the federal minimum ($7.25 per hour) wage by 1.5, then subtract the amount of tip credit used to arrive at the correct overtime rate of pay. If this formula is not followed (as to federal law), you could be entitled to seek unpaid overtime compensation (and double damages). 

Tip pooling

The FLSA and Ohio law allows employees to participate in a practice called tip pooling. It may also be referred to as tipping out or a tip pool. In general, tips belong to the employee. The employer cannot make employees give them their tips unless a valid tip pooling arrangement exists.

When an employer requires tip pooling, this means all employees in the pool must chip in a portion of their chips, which are then divided among a group of employees to be split out of a percentage. Tip pools are legal so long as they are done according to company policy AND only those who customarily and regularly receive tips. For example, if tips are shared with managerial employees, security personnel, or other non-tipped employees, this could result in a minimum wage violation. In such instances, an employee is owed the full minimum wage, reimbursement of tips that were not properly utilized by the employer, and other damages.

Scenarios when employers could violate the law for tipped employees

Given these laws are complex, some common wage violations of tipped employees’ rights include:

• tip pools are shared with non-tipped employees (or non-tipped employees take tips such as managers, supervisors, and owners)
• not paying overtime correctly or not paying overtime for hours worked over 40 in a workweek
• not paying the correct tip credit rate
• employees are paid 100% in tips (rather than a cash wage by the employer).

How paying credit card tips to employees affects tipped employees

Tipping with a credit card has become more commonplace, and there are some confusing aspects to how this affects tipping.

In some cases, employers must pay a percentage to the credit card company on each sale. Some states allow employers to subtract a proportionate amount of the tip to cover some of the employee’s share of the fee. If a credit card company charges a 4% fee, an employer could legally reduce an employee’s tip by 4%.

Currently, Ohio law does not address credit card charge issues, making this issue confusing and complex to navigate.

Federal law currently states that the credit card charge, when subtracted from an employee’s tip, cannot result in less than minimum wage. 

Contact Bryant Legal, LLC if you have questions about your rights as a tipped employee for more information

If you are a tipped employee in Ohio and you suspect your rights as a tipped employee may have been violated, contact Bryant Legal, LLC today to speak with our experienced employment law attorneys.

June is Pride Month, a time when the LGBTQ community comes together to celebrate their strength in spite of the decades of hardship and discrimination they have faced for just being themselves and loving the people they love, from the Stonewall riots to the AIDS crisis.

Sadly, LGBTQ discrimination is still an issue even in 2021, but there have been many landmark improvements over the years that allow for legal recourse in the event you believe you have been discriminated against because of your sexual orientation.

Bryant Legal LLC recognizes the incredible resilience the LGBTQ community has and is here to help its members when they face certain types of discrimination. We hope to help you better understand your LGBTQ employment rights if should you ever experience discrimination in the workplace and would be honored to present you in a case if your employment rights are violated.

Can I be illegally discriminated against based on my sexual orientation or gender identity?

No. On June 15, 2020, the U.S. Supreme Court ruled that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex. 

The 1964 Civil Rights Act does not directly state that these characteristics were protected from sex-based discrimination, so the fact that the Supreme Court stated that these identities fall under the umbrella of sex discrimination is important. 

The federal and Ohio state governments are also considering passing laws that would protect the LGBTQ community from more types of discrimination.

What’s the difference between the Equality Act and the Ohio Fairness Act?

The Equality Act

The Equality Act is a bill that would amend that 1964 Civil Rights Act and make it so it is explicitly stated that discrimination based on sexual orientation and gender identity is illegal. This would apply to more than just employment discrimination and would ensure that LGBTQ people would have equal protection against discrimination, just as anyone else in the United States does.

The Equality Act would also trump the Religious Freedom Restoration Act (RFRA), which means people whose religious beliefs may not approve of same-sex couples or transgender people cannot deny LGBTQ people housing, goods, and services on the basis of their religion and use RFRA as a defense for doing so.

The U.S. House passed the Equality Act on February 25, 2021, but it faces an uphill battle in the Senate.

The Ohio Fairness Act

The Ohio Fairness Act, or OH SB 119, is a bill that would make it illegal to discriminate against gay, lesbian, and transgender people throughout the state of Ohio.

If that the Equality Act does not make it through the U.S. Senate, the Ohio Fairness Act would ensure that discrimination against LGBTQ people in Ohio would be illegal.

Compared to the federal Equality Act, the Ohio Fairness Act does provide greater protection for LGBTQ people as it would apply to employers with more than 4 people (federal anti-discrimination laws apply to businesses with more than 50 employees). However, there are religious exemptions to the Ohio Fairness Act, which would allow religious organizations to discriminate in certain situations.

Despite partisan support for the Ohio Fairness Act, it’s unclear if this bill will pass a chamber, as the last time a similar bill passed a chamber, it was in 2009, when Democrats were in control of the Ohio House. 

What are some examples of LGBTQ employment discrimination?

• Being fired after publicly transitioning or coming out
• The retraction of a job offer after an employer reviews social media posts that show you and your same-sex partner together or posts revealing your transition
• Being asked inappropriate questions about your sex life or genitals, offensive remarks about clothing, inappropriate touching, etc., to the degree it affects your ability to work effectively; retaliating against you for reporting the sexual harassment to HR by passing you over for a promotion you’ve earned, being excluded from meetings that would improve your position, change in compensation, etc. (hostile work environment sexual harassment)
• Being asked to transfer positions (i.e., being asked to move from your public-facing position to a different department after starting to transition)
• Being treated unfavorably due to your sexual orientation or gender identity, such as being denied or deprived of opportunities that could lead to a promotion or better pay

Bryant Legal LLC is here to protect LGBTQ employment rights

If you believe you have experienced any of the above situations, contact Bryant Legal LLC today. We can help you determine whether or not you would be able to pursue legal action against your employer due to LGBTQ discrimination. Contact us today for a consultation or to request more information.

It’s been a little over a year since the initial confirmation of the COVID-19 pandemic in the United States. Since that time, millions of workers have been impacted. Regardless of where you stand in the midst of the pandemic, it is possible that your rights as an employee have been violated. If that is the case, you should contact Bryant Legal, LLC immediately in the event you believe you have been discriminated against for having to seek medical leave due to COVID-19 to quarantine, recover, or even caretaker duties for your child or a loved one due to caretaker duties as more fully outlined below..

Can I take paid sick leave if I get COVID-19?

To provide context, in response to the COVID-19 pandemic, on April 1, 2020, the Secretary of Labor promulgated temporary regulations to implement emergency medical leave under Title I of the FMLA and emergency paid sick leave to assist working families facing public health emergencies arising out of Coronavirus Disease 2019 (“COVID-19” or “Coronavirus”) global pandemic. The paid sick leave was created by a time-limited statutory authority established under the Families First Coronavirus Response Act (FFCRA), of which contains two subsets: (1) the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the (2) Emergency Paid Sick Leave Act (“EPSLA”), for the time period of April 2, 2020 through December 31, 2020. The FFCRA is remedial legislation that expanded the protections under 29 U.S.C. § 2617 of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq., (“FMLA”) and requires covered employers to provide employees with paid sick leave, expanded family and medical leave, and job protection for specified reasons related to qualifying reasons related to COVID-19.

Under the FFCRA leave requirements, businesses with less than 500 employees were required to provide 2 weeks of paid leave at 100% of your typical pay, capped at $511 per day. 

While the FFCRA initial coverage period expired on December 31, 2020, it was extended by the American Rescue Act Plan of 2021 (the “Act”) until September 30, 2021. In order to promote vaccination and testing, the Act, which is effective as of April 1, 2021, added two additional reasons that allow employees to qualify for FFCRA leave, effective April 1, 2021, if their employer opts in:

1. FFCRA leave is available for employees who are unable to work because they are obtaining a COVID-19 vaccine, or are recovering from any illness, injury or condition related to such vaccine (side effects): and
2. FFCRA leave is available for employees who are unable to work because they are seeking or waiting for the results of a diagnostic test or awaiting a medical diagnosis. 

The American Rescue Act Plan of 2021 also extended the FFCRA in two other important ways:

1. The Act increased the number of weeks that an employee can seek paid family leave under the FFCRA from ten (10) weeks to twelve (12) weeks.  Thus, an employee now has 14 weeks of paid leave available, if he or she qualifies: two weeks of sick leave and twelve weeks of family leave. 
2. The Act also resets employees’ FFCRA sick leave rights to zero on April 1, 2021.  Therefore, if employees took FFCRA sick leave prior to April 1, 2021, that does not count against their future right to leave right.

As such, if you were denied leave or discriminated against at any point due to one or more COVID-related reasons, whether that be under the original FFCRA or the recently amended version (effective April 1, 2021), you may still have a legal case. 

Can I be fired for missing work to care for a family member who got COVID-19?

FFCRA applied to employees who had to go on leave to care for sick family members, and if you were denied paid sick leave or were fired for going on leave, it’s worth contacting a lawyer to see if anything can be done.

Under the Family and Medical Leave Act (FMLA), employees who work for private employers (that have at least 50 employees), government agencies, and elementary and secondary schools are eligible for 12 weeks of unpaid leave.

Provided you have worked for your employer for at least 12 consecutive months and have given notice about medical leave before you start your leave or as soon as you can in emergency situations, you should be allowed to take leave without losing your job. 

If you experience retaliation after exercising your FMLA rights, it may be grounds for a lawsuit. Retaliation can be a complex issue and depends on the specific facts of each scenario, so be sure to contact a lawyer to determine whether or not your case is one that can be brought forward.

Can I lose my job for missing work because I had to watch my children?

One of the many effects the COVID-19 pandemic has had is that children are attending school from home, leaving parents to tend to their children’s needs. In some cases, many parents have had to take extra time off of work or leave.

FFCRA expanded leave for parents to care for their children in the event their child care provider was unable to do so, or if their schools were closed. 

If you were fired for taking paid leave through FFCRA, reach out to an employment law firm immediately and ask to speak to an attorney.

What can I do if my employer fired me for taking leave for COVID-related reasons?

If you believe your employer violated your rights by firing you for taking time off due to a COVID-19 diagnosis or caring for your children or a loved one, contact Bryant Legal, LLC today. Our attorneys are here to support you during this difficult time and will fight for your employment rights.

The month of March is a very important month: Women’s History Month, which celebrates the incredible women who have changed the world as we know it.

In honor of Women’s History Month, we have decided to review the history of women’s employment rights, the progress that has been made, and a non-exhaustive outline of your rights under federal employment laws 

If you believe you have been discriminated against because of your sex, gender, pregnancy, pay, and/or medical leave (among other categories of discrimination that we handle), you are welcome to contact either our Toledo, Ohio, or Columbus, Ohio, office to speak with an employment attorney over a free initial and confidential consultation so that you can assert your rights in the event you face discrimination from your employer.

1836: The Lowell Mill strikes

Prior to the nineteenth century, the northeastern United States’ economy was made up of self-sufficient families that raised, grew, or made what they needed and sold or traded excess products with others. Both men and women worked and raised families. Labor and tasks were divided by sex, but the work of women was vital to these families and their surrounding communities, as seen in records kept in the home. 

About a third of the way through the nineteenth century, the economy started to change, and the home was no longer the center of production, and so the role of women changed. The production of goods shifted to factories and machines, which needed people to run it, and women ended up making up a very large segment of the workforce, particularly in the textile industry.

Women would move away from home to live in boarding houses owned by textile manufacturers, giving them a salary and more independence than they’d ever had before.

Unfortunately, this came at the price of poor and often dangerous working conditions and sometimes at lower wages. 

This was the case for the women working at the Lowell Mill, a textile factory in Massachusetts. The “Lowell girls,” as they came to be known, banded together and went on a strike in 1834. They did not get what they asked for in 1834, but succeeded with their goals in 1836, and created the first union of working women in American history. 

1920: The Women’s Bureau of the Department of Labor established

On June 5, 1920, the Women’s Bureau was established as part of the U.S. Department of Labor, several months before women were allowed to legally vote. The Women’s Bureau was designed to “formulate standards and policies which shall promote the welfare of wage-earning women, improve their working conditions, increase their efficiency, and advance their opportunities for profitable employment.” 

The Women’s Bureau played an important role in many ways. The agency’s predecessor, the Woman in Industry Service, used field investigations to learn more about how women were readjusting post-World War I, which led to investigations of women’s employment in a number of states. The first investigation was carried out in Indiana, and in 31 other states afterward.

In the 1920s and 1930s, the Women’s Bureau ran several studies that reviewed the working conditions of women in a wide variety of industries, such as:

• Candy
• Private household employment
• Canning
• Cotton mills
• Spin rooms
• Laundromats and laundries
• Secretaries
• Sewing
• Tobacco
• Enameling
• Leather gloves
• Shoes
• Department stores
• Silk dress
• Hat-making

Other early studies included Black women workers and an investigation of how far women were allowed to take exams for federal government positions. The investigation would lead to a ruling from the Civil Service Commission, opening these exams to all sexes.

The Women’s Bureau would go on to work on the Fair Labor Standards Act, examine employment opportunities after the Second World War (opening the door for more employment opportunities in even more fields than before), and the Civil Rights Act.

The Women’s Bureau still exists to this day and continues to push for more progress and improvement for women’s rights in the workplace.

1923: Equal Rights Amendment introduced in Congress

The Equal Rights Amendment (ERA) was a proposed amendment to the Constitution that would guarantee legal gender equality for all Americans. The ERA would be revived over 4 decades after its 1923 introduction in the late 1960s.

With feminists such as Betty Friedan and Gloria Steinem and the U.S. Representative Bella Abzug of New York championing the ERA, the amendment received its two-thirds vote of approval in 1971. It was then approved in March 1972 by the Senate and sent to the states to ratify. 

But a conservative backlash against feminism ended up drying up support for the ERA, thus resulting in a failure to ratify the amendment by 38 states (the number for the necessary three-fourths of the states needed to ratify an Amendment). Only 30 states ratified the amendment.

On January 15, 2020, Virginia became the 38th state to ratify the ERA with bipartisan support in both of the state’s chambers. But the ERA has long passed its ratification deadline, and on top of that, 5 states pulled out of their prior approval of the amendment.

The fate of the ERA is still hanging in the balance due in part to revived interest in the ERA and women’s activism. At this point, it is up to the federal government, courts, and Americans to push for the ERA’s ratification once more.

1938: Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act of 1938 is the law that gave Americans our modern-day workplace protections, such as an entitlement to the payment of minimum wages, overtime compensation when you work over 40 hours in one or more workweeks, and the federal law that governs a variety of conditions in the workplace.

Mary Anderson, the first director of the Women’s Bureau, worked to ensure that women would be protected under the Fair Labor Standards Act by including the statement “No classification shall be made under this section on the basis of age or sex.” 

Anderson was far from the only woman who worked to bring this bill to law. Other female architects and advocates of the FLSA include:

• Secretary of Labor Frances Perkins
• U.S. Representative Mary Norton 
• First Lady Eleanor Roosevelt

1963: Equal Pay Act

The Equal Pay Act of 1963 is a federal law that amended the Fair Labor Standards Act with the goal of ensuring equal pay for men and women. While this law is an important starting point to ensure equal pay between males and females, the gender wage gap persists despite the EPA’s passage. 

In 2020, women earned 81 cents for every dollar earned by men — and that’s just white women. The gap grows wider for women of color, women in executive roles, and in certain jobs. If you believe you are not being paid equally as your male co-workers despite having the requisite qualifications, do not hesitate to contact us to go over your rights to equal pay.

1964: Title VII of the Civil Rights Act

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination based on race, color, religion, sex, and national origin. We regularly advocate on behalf of individuals who have been faced with discrimination under Title VII. Importantly, Title VII also prohibits employers from retaliating against an employee for opposing discrimination, even if you are not the individual who faced discrimination (i.e. reporting sexual harassment, racial slurs, among other conduct).

1978: Pregnancy Discrimination Act

The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to make it illegal to discriminate against a pregnant employee under Title VII’s definition of “sex” discrimination. Thus, the PDA amended Title VII to include protections for pregnant employees.

1996: Equal Pay Day is created

An initiative started by the National Committee on Pay Equity (NCPE), Equal Pay Day is a symbolic day that represents how far into the year a woman must work in order to achieve the same average earnings a man did in the previous year. The date changes every year.

March 31, 2020, was a momentous year and date for Equal Pay Day, as it was the first time ever that showed the gender pay gap is narrowing. It was also the earliest day Equal Pay Day occurred on. 

2009: Lilly Ledbetter Fair Pay Act

The Lilly Ledbetter Fair Pay Act was the first piece of legislation signed into law during the Obama Administration, overturning the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., which placed tight restrictions on the time period for filing complaints of employment discrimination regarding compensation.

Today

Despite all of the progress women and others have made on behalf of women’s rights in the workplace, there still remains a long road ahead for true equality for women in the workplace. At Bryant Legal, LLC, we strive to continue to make progress on behalf of women in all aspects of their employment.

We saw women share their stories of sexual harassment and assault, with many of them occurring in the workplace, with the advent of #MeToo. The #MeToo movement revealed how common and pervasive sexual harassment is in the workplace, which resulted in a handful of seemingly powerful men, like producer Harvey Weinstein, Today Show anchor Matt Lauer, and self-help guru Tony Robbins fall from the public’s grace. Women also feel more empowered to report instances of sexual harassment, sex discrimination, and other forms of discrimination in the workplace, which is how it should be in modern society.

However, very few of these public figures accused of sexual assault faced trial and/or conviction. Weinstein is a rare exception, as he was found guilty of two counts of sexual assault and jailed. As such, individuals need to be held accountable for sex discrimination and that can only be done through asserting one’s workplace rights.

There have been reports that men in the workplace go out of their way to exclude or avoid their female coworkers out of fear of being falsely accused of sexual harassment, which puts women at a disadvantage in terms of promotions and equal pay. 

Even with March 31, 2020, being the most progressive year for narrowing the pay gap, the Census Bureau has found that at the current rate of progress, women won’t see equal pay until 2059. 

The fight for true equality in the workplace is far from over, which is why Bryant Legal, LLC is always here to protect your rights. If you have any questions about your rights as a female employee in the workplace under any of the federal or Ohio laws governing your employment, please contact us for a free and confidential phone consultation with an employment attorney.

On January 15, 2021, Ohio Governor Mike DeWine signed the Employment Uniformity Act into law.

This law will change some parts of Ohio’s current employment laws, including:

Cutting the statute of limitations from 6 years to 2

Prior to DeWine signing the Employment Uniformity Act, Ohio employees had 6 years to file a workplace discrimination lawsuit. Now, the statute of limitations has been cut down to only 2 years. The new statute of limitations is longer than the federal law, but that’s still a pretty big change.

Filing discrimination charges through the Ohio Civil Rights Commission

One of the biggest changes this new law implements is that any and all discrimination cases must be filed through the Ohio Civil Rights Commission (OCRC) before going to court. Without filing a charge through the OCRC first, employees cannot file a lawsuit.

The OCRC must either:

1. issue a right-to-sue notice; or
2. fail to issue a right-to-sue notice within 45 days of an employee’s request.

The statute of limitations will not be counted as the OCRC investigates claims.

Giving employers defense in sexual harassment cases

The Act gives employers a defense against sexual harassment claims. Essentially, employers must prove they took steps to prevent or correct sexual harassment and that the employee making the claim did not use any of the preventative or provided support the employer offered them.

However, employers cannot use this defense if the sexual harassment led to demotion, failing to higher or promote, or terminating the employee.

Mostly eliminating personal liability for managers

Unless a manager was actively engaging in retaliatory acts or aiding and abetting discriminatory practices, they cannot be held personally liable for workplace discrimination practices.

Simplifying age discrimination claims

The Act has made the age discrimination claim procedure more consistent with the federal law, thus clearing confusion as to what employees must bring to prove age discrimination in court. The requirements for age discrimination at the state level, along with other discrimination claims, has often been unclear and confusing.

Bryant Legal is prepared to help you

Even though the Act tilts Ohio’s workplace discrimination laws in favor of employers, this does not mean that you should surrender when faced when discrimination or sexual harassment.

Despite the shorter statute of limitations, adding an additional step of investigation for discrimination cases, and making it more difficult to hold managers personally responsible, Bryant Legal LLC is prepared to work with these new laws and use everything we can to support you.

Contact us today for more information.

As a reminder, Federal and Ohio law make it unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

In the event you are a victim of workplace sexual harassment, the following tips should provide some general guidance with respect to what you should do. Please note that each factual scenario is different, so the following are general tips and should not be taken as legal advice to your specific situation. For more information, please contact an employment attorney at Bryant Legal, LLC to discuss in more detail so that we can immediately protect your rights.

Top 10 Tips To Do If You Are a Victim of Workplace Sexual Harassment:

(1) Do Not Ignore the Harassment

• Talking about sexual harassment can be uncomfortable, but speaking up about it with other employees who may also be experiencing similar conduct can empower you.

(2) Make it Clear to the Harasser that the Conduct is Unwelcome

• An essential element of a sexual harassment claim is that the conduct must be unwelcome. Harassers sometimes contend that their victims welcomed and enjoyed their words and actions. Although it can feel uncomfortable or even frightening to object, you must unequivocally tell the harasser to stop the behavior.

(3) Not All Offensive Behavior is Sexual Harassment under the law

• As mentioned above, whether certain behavior constitutes sexual harassment is considered on a case-by-case basis. Thus, it is especially important to talk to a lawyer who knows about sexual harassment law and how to deal with such behavior.

(4) Keep Careful Notes on what happened, but not on employer-owned equipment

• You should keep any notes, memos, letters, emails, textual messages, gifts, or other tangible evidence from the harasser. Be careful how and where you record your evidence. For example, communications using company equipment are not confidential and can be used against you. Other examples that can be used against you because it may contain person information is social media.

(5) Report and Oppose the Conduct Immediately

• Why? Your report does two important things. First, it puts your employer on notice that the sexual harassment occurred. Second, it provides your employer with an opportunity to correct the problem and make it stop. If it does not stop, you still have legal options, but consult with a sexual harassment attorney first.

(6) Human Resources is Not on Your Side – Anything you tell HR can be revealed to others in the company

• Do not assume that anything you tell them is going to be kept confidential. The HR department may report your complaint to their supervisors and to other managerial employees. Although Human Resources is ideally in place to help the company’s employees, often times it does not help. Rather, it makes a record against you to cover for the company. After all, the company also pays them as employees so HR employees have the company’s interest as the top priority.

(7) Do Not Quit Your Job

• Quitting your job provides an employer with the argument that you did not give it enough time to correct the problem. Quitting could also affect your ability to recover your lost wages and make it even harder to collect unemployment benefits (due to “job abandonment”).

(8) Retaliation is Unlawful

• You might have a stronger retaliation claim if you make a reasonable good faith complaint of harassment to your employer and your employer subsequently takes any “adverse action” against you because of the complaint.

(9) Keep Performing Your Job Well

• Making a complaint about sexual harassment does not give you permission to stop performing your job to the best of your ability or excuse you from the same standards you had to meet before the conduct started or you complained. After all, Ohio is an at-will state. Thus, if you stop performing your job well, your employer has a “business justification” for taking adverse action against you.

(10) Get Legal Advice from an attorney who knows about sexual harassment law as soon as you can

• Due to the fact that sexual harassment is a serious and often frightening experience, your rights need to be protected at every step of the way. Talk to an attorney who handles these matters and takes them just as seriously as you do. This is especially important if you are considering quitting your job.

For more information about your situation involving workplace sexual harassment, contact us today.