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Robert A. Klingler, Attorney

Is My Severance Package Fair?

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We’re in the 6th week of Ohio’s and Kentucky’s Stay at Home Orders, and we’re all feeling the effects of this new reality. It’s not easy for any of us, but some have been hit a lot harder than others. I’m getting a lot of calls from employees who’ve been laid off from their jobs, and they want to know what they should do, and if their rights may have been violated.

Some of these people have been offered a severance package in exchange for giving up or waiving any legal claims they may have, and they want to know if the severance offer is fair.

If you’re in that situation, here are some things to keep in mind:

First, in Ohio and most states, there is no legal requirement that your employer offer you severance at all.  Many employers don’t, especially smaller ones who simply can’t afford to pay you if you’re not working.

So, even though you’re losing your job, which is very bad news at any time, but especially now, you’re fortunate if you’ve been offered a severance package at all.

But second, you should consider the reason you’re being laid off. And by that I mean the real reason, not necessarily the reason you were given by the employer.  This is important because even though we are in an emergency, the laws against employment discrimination still apply.  Employers cannot use this crisis as an excuse to get rid of older employees, or disabled employees, or female or minority employees, or for other unlawful reasons.  If you suspect you are being targeted for an unlawful reason, you may have a claim that is greater in value than the severance you’re being offered.

But even if you don’t suspect an unlawful motivation is behind your lay-off, then there is still nothing wrong with asking for more severance, or longer health insurance coverage, or something else that would help you and your family get through this. The worst that can happen is your employer says “no.”

And keep this in mind: with the enhanced unemployment benefits in place now, some lower-paid workers may be just as well or better off accepting unemployment benefits instead of a severance package.

And finally, be aware of this: Sometimes a severance agreement will include things like a non-compete agreement, or a non-disparagement agreement which could legally limit your right to work or to express opinions in the future.  You should make sure you understand exactly what rights you are giving up before you sign any severance agreement.

If you have lost your job, don’t give up; keep looking; keep planning, stay healthy, and spend this time getting yourself ready for the turn-around when it comes. Because it will come.

Good luck, and stay well.

Time to Work on Infra-structure

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I’ve been reviewing my list of tasks and things I need to get done as a lawyer, and I see that most of them involve being physically present with people:

  • Going to court for hearings or trials
  • Conducting focus groups to prepare for trial
  • Re-enacting scenes to prepare the case
  • Having lunch with another lawyer
  • Attending conferences and seminars
  • Going to the gym to work out and relieve stress
  • Getting a haircut to look presentable in court

All these things are off the table for me right now, and for most of us.

I went for a solitary walk this morning, down to the riverfront and along the beautiful Cincinnati Riverwalk.  Of course, most places were closed, although a few open for carryout.  Hardly anyone was on the street except a few walkers and joggers.  But I noticed that the warm, early spring breeze was filled with the noise of jack-hammers and construction.  Everywhere I looked, workers were repairing streets and sidewalks, cleaning up debris, renovating buildings and constructing new ones.  They were working on infrastructure, and getting a lot done in the quiet and emptiness of the city streets.

I decided that’s what I can do.  Work on infra-structure.  So, I’m digging into the tasks that I’ve put off because I don’t have time to do them during the crush of normal business, or because they aren’t exciting or immediately rewarding.  And I’m finding an odd exhilaration in it.  I’m feeling productive, and I’m improving the infra-structure so that when things get back to normal, my practice will be healthier and more efficient than it was before.

One thing I’m doing is finishing the writing projects that always get interrupted with meetings and depositions and trips to the courthouse.  Instead of waiting for the deadline to motivate me, I’m getting ahead of the game.  That feels good.

I’ve straightened up my desk and filed the little stacks that were building up.  I’m feeling more in control now, because I know where things are when I need to find them.

I’m deleting lots of clutter on my computer desktop, things that I’ve saved there to file with the court or to temporarily save.

I’m also fixing little software glitches that have bothered me—I’m figuring out how to correct some issues that always bothered me, and how to do some things I never had the time to figure out before.

I installed Zoom on my phone and I had a great chat with my children who are in Washington D.C., San Diego, Florida, and Cincinnati.

Yesterday I was called by a local news channel to comment on the growing unemployment situation, and I was able to take the time to do the interview—something I may not have done before this slow-down.

Lots of people have talked about using this time for family time, and that’s wonderful and we should all take advantage of that opportunity.  But don’t forget about the things you can do for your practice now that will strengthen it and prepare you to hit the ground running when the courthouses and restaurants re-open, the office buildings and sidewalks are full of people, and life begins to return to normal. Turn this down-time into productive time.  Till next time, stay well.

Coronavirus Update: What Employees Should Know

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The U.S. House of Representatives passed what is being called the “Families First Coronavirus Response Act” on March 14, and the Senate is expected to take up the bill immediately.  If it becomes law in its current form, the Act will provide some reassurance to working people that their financial security may not be destroyed by the coronavirus.  The next several weeks will be confusing and uncertain, as employers learn their new responsibilities and employees learn of expanded protections provided by the Act. Among other things, the Act would provide for employees:

  • The “Emergency Family and Medical Leave Expansion Act” would expand FMLA protection to more employees, and would cover more medical situations, including recommendations or orders by officials and doctors that an employee should stay home from work;
  • After 14 days of unpaid leave, the employee would be entitled to be paid at least two-thirds of its normal rate of pay for additional time off due to illness or the illness of a family member;
  • Emergency financial assistance to states for increased unemployment insurance;
  • Required paid sick time (up to 80 hours for full-time employees) to employees for self-isolation because of a coronavirus diagnosis, or to obtain a diagnosis due to coronavirus-like symptoms, to comply with orders or recommendations to stay home from work, or to care for children if school has been closed or normal childcare is unavailable;
  • Tax credits for employers and for certain self-employed employees.

The details will change, and the final law will have to be studied to know exactly what the rights and responsibilities of employers and employees will be.  But it is clear that Congress is working rapidly to slow the spread of the virus, while at the same time trying to lessen the inevitable economic impact the coronavirus will have on workers and families.  The current version of the Act has a “sunset” provision and will expire at the end of this year, 2020.

The Act could certainly be extended if the crisis goes on longer than that.  For employees, here are the main takeaways to keep firmly in mind:

  • Know the key symptoms of the coronavirus—a dry cough and a high fever. If you develop these symptoms, stay home from work, isolate yourself, and seek immediate medical care.
  • Other symptoms can also be caused by the virus, so if you feel sick with sniffles or a cold, take precautions and contact your doctor, but you must use your judgment as to whether you must seek immediate treatment or stay home. There currently are not enough testing kits to test everyone for the coronavirus, so for the foreseeable future, only those with serious symptoms can be tested.
  • Stay home if you can.
  • Wash your hands often, and stay away from anyone who is coughing or sneezing.
  • Be careful about touching surfaces where other people have recently been—for example, restaurant tables and chairs, bus and streetcar or train poles and seats, doorknobs and other places that are touched by others.
  • If you have it, carry hand sanitizer with you to use after you’ve had to touch a public surface. Soap and warm water is still best, but sanitizer is better than nothing.
  • Don’t try to be a hero, and don’t minimize the risk to yourself and others. Even though this virus tends to be worse for older people, younger and seemingly healthy people have died from it.
  • You owe it to others to keep from spreading the virus, even if you aren’t worried about your own health.

As we sort through the challenges to employment presented by the coronavirus, many questions will arise about the expanded protection of employees under the new Act.  If you believe you are not being treated fairly because of coronavirus-related issues, you should contact a Cincinnati or Kentucky employment lawyer to seek advice.

There are several good sources for information that you should check regularly. Here are a couple:

https://healthitanalytics.com/news/johns-hopkins-develops-real-time-data-dashboard-to-track-coronavirus

https://www.cdc.gov/coronavirus/2019-ncov/index.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2Findex.html

What does the coronavirus mean for my job?

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The Coronavirus or “COVID-19” outbreak has many people worried, and for good reason.  It is spreading rapidly and it may soon affect your community, your workplace, and your family. The last thing you want to worry about when the virus hits is what it might mean for your job.  But it’s time to start thinking about it.

What if you are diagnosed with the coronavirus? Obviously, you cannot go to work.  But if you are an hourly employee without union protection, you are most likely “at will,” which means your employer may be able to terminate you for not showing up, even if you’re sick. There are discussions underway right now about giving workers protection from missing paychecks if they or their family become sick, or if workplaces have to shut down.  Things are evolving rapidly.

Here are some things you should know:

  • If your employer has 50 or more employees working within a 75-mile radius of your workplace, and if you’ve worked for the employer for at least 12 months for at least 1250 hours during that time, you are protected by the Family and Medical Leave Act (FMLA), which gives you up to 12 weeks off of work (unpaid) for your own illness or that of a family member. Employers with fewer than 50 employees can voluntarily provide the same protection if they choose to.
  • If you suspect you have been exposed to the virus you should be tested immediately and let your employer know. Inform your boss or Human Resources contact of your situation and suggest that you should stay away from work until the test results are available.  Any responsible employer should agree to let you do that without getting points or being disciplined in any way.  However, you may have to use your own PTO or vacation time if you want to be paid for the time you miss.
  • Your employer will want to see a doctor’s statement saying you have been diagnosed or at least tested for the disease to excuse you from missing work. Some employers may loosen their normal rules in order to discourage workers from coming to work sick, and every employer would be well-advised to do so.  But at this time, there are no special rules or protections in place to protect you from being made to come to work even if you are afraid you might be exposed to the virus. Your employer may expect you to come to work even if you aren’t feeling well, unless you have a doctor’s note stating you are sick.
  • Even if you aren’t sick, don’t be surprised if your workplace, or even your city, is shut-down to prevent the spread of the virus.
  • The most important things you can do to prevent getting or spreading the virus are:
  • Avoid close contact with people who are sick
  • Avoid touching your eyes, nose, and mouth
  • Stay home when you are sick
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces suing a regular household cleaning spray or wipe.

See: https://www.cdc.gov/coronavirus/2019-ncov/about/prevention-treatment.html

What’s next?

Unfortunately, many of us can expect to experience a disruption of our normal routines as the coronavirus spreads.  With cooperation between workers and employers, we can hope to minimize the financial disruption caused by missing work due to illness.  Follow your employer’s rules for calling off sick, staying in touch, providing doctors’ statements, and filling out FMLA paperwork, and be sure to understand your employer’s expectations.  If you believe you were unfairly disciplined or targeted because you were exposed to or contracted COVID-19, don’t hesitate to contact an employment lawyer for advice.

 

Me Too! — You Too?

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The “me too” movement already feels like old news, but it is in full swing and its repercussions have not yet been completely felt.

What does this phenomenon mean for employment law, and for employees specifically?

One thing is certain—there is a new openness and sensitivity to the claims of women who have been assaulted, harassed, or treated unfairly in any way based on sex or gender.  For publicly traded or otherwise high-profile companies, being accused of being insensitive or unresponsive to complaints of harassment is too great to risk to bear, and the company will often determine that conduct a woman found offensive is grounds for discipline up to and including termination.  A person in one of those companies accused of inappropriate behavior will experience no sympathy from management and no protection from the law.

Here is the legal dilemma for employers: failure to take appropriate action to investigate and stop sexual harassment may lead to a lawsuit and an award of damages against the company.  But disciplining an alleged harasser—even without solid proof that the harassment actually occurred or was sufficiently severe to constitute sexual harassment under current law—presents no serious legal threat to the company.  That is because the accused has no effective legal protection against false accusations as far as employment is concerned.  Since most employees are “at will,” meaning they can be fired at any time for any reason (as long as it’s not an illegal discriminatory reason), the employer does not need proof of misconduct in order to terminate.  If the employer wants to side with the accuser for whatever reason, whether because of solid evidence or because of fear of appearing insensitive or politically incorrect, the accused employee has no protection and no legal recourse.

In the aftermath of decades and centuries of women not being believed, and being expected to put up with all kinds of harassment and denigration, it is high time that their complaints are starting to be taken seriously.  While it may be inevitable that false or exaggerated claims of harassment and misconduct will be made, those are often sorted out in the workplace where there are no other witnesses, it is strictly “he said, she said,” and the accusation simply cannot be corroborated by other evidence.  In those situations, an employer will be reluctant to simply accept the accuser’s word, in the face of a strong denial by the accused.

The more usual scenario, however, is where a man admits to making some comment, or taking some action like touching or looking, that he thought was completely innocent and acceptable, but that the woman found offensive or inappropriate.  In those instances, the Human Resources manager will tend to take the side of the offended woman and accept the interpretation that the behavior was inappropriate.  Depending on the specifics, the man may find himself transferred, demoted, or fired.

It is clear that sexual harassment in the workplace is taken more seriously now than ever before.

A woman who feels harassed or demeaned or discounted at work because of her sex should not hesitate to raise the issue with the appropriate supervisor or HR professional.  She is protected under the law from retaliation for raising such concerns.  If she complains about harassment and is retaliated against in any way for doing so, she has a good claim and should contact a lawyer.  And men must realize that what was acceptable just a few years ago is no longer okay.  If this hasn’t yet hit home with you, then you’re not paying attention.  It can be a costly lesson to learn.  If you find yourself on the wrong side of a harassment complaint, you will have no legal protection.  You can only hope your employer will give you a chance to learn from your mistake.  But don’t count on it.