2024 Managing Labor + Employee Relations Seminar

On Thursday, May 9, 2024, Kegler Brown presented its annual Managing Labor + Employee Seminar. The in-person and virtual seminar focused on timely information regarding labor and employee relations, and allowed attendees to earn CLE and SHRM credit hours.

1. 2024
Managing Labor +
Employee Relations Seminar
May 9, 2024

2. Presented by
Tony Fiore
“But…It’s Legal!”

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

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. OnAugust 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

12. Marijuana andcertaincannabis
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

18. Issue 2
Recreational
Marijuana

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

24. Decriminalization

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

27. HB460
Enacts Getting
Rehabilitated Ohioans
Working Act

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

30. Smoking Recreational Marijuana in Public

31. HB86
Amends Issue 2
Recreational Marijuana
Law and Liquor Law

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 statute3
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

39. QUESTIONS?

40. Tony Fiore
Director, Kegler Brown
Director, Government Affairs, Ohio SHRM
[email protected]
keglerbrown.com/fiore
(614) 462- 5428

42. Presented by
Danielle Crane
No More Nonsense:
Workplace Harassment
Investigations, Documentation
+ Retaliation Awareness

43. What is
HARASSMENT?
Race/Color
National Origin
Sex
Disability
Religion
Age

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

48. Initial Info
Collection +
Planning

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

53. Physical
Evidence Review
Emails
Voicemails
Call logs
Photos
Video
Surveillance
Police reports
Walk through

54. Ultimately, YOU
have to figure out
what happened + if
it’s harassment

55. Credibility
Determination Factors
Memory
Reasonableness
Truthfulness,
omissions
Corroboration
+ consistency
Bias
Prior
misconduct
Plausibility of
accounts

56. Follow Ups

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

59. Remedial Action
Termination
Reassignment (harasser)
Re-training
Written warnings

60. Retaliation

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

78. Danielle Crane
[email protected]
keglerbrown.com/crane
(614) 462- 5444

79. Presented by
Nicholas S. Bobb
Mastering FLSA
Collective + Class Actions

80. FLSA
COLLECTIVE
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

89. FLSA
CLASS
Actions

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

95. Key
Differences
Class vs.
Collective

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.

98. RECENT
CHANGES
to Collective Actions
Two-Stage Certification
Process

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

101. Best Practices for
EMPLOYERS

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

106. Mitigating
Risks of FLSA
Litigation

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

112. Nicholas S. Bobb
[email protected]
keglerbrown.com/bobb
(614) 462- 5414

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 includinglactation,
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

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 anon-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 tobut 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
EMPLOYEES3
Employees get a raise

139. EMPLOYEES
Convertible to
Non-Exempt
Usually significantly below
new threshold
Work significant overtime,
oftenunpredictably
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
Ifuncertainty around hours,
would alternativecompensation
method be a fit?
Messaging to
affectedemployees?

145. Brendan Feheley
[email protected]
keglerbrown.com/feheley
(614) 462- 5482