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Key considerations Which issues would you most highlight to someone new to your state? Supervisors can be held individually liable for discrimination claims directly into court.
- Employees can bring discrimination and retaliation claims without first exhausting administrative remedies.
- The statute of limitations for most discrimination claims is six years.
- Ohio has a separate military family leave law for covered employers (with 50 or more employees).
- The Ohio Civil Rights Commission has a separate administrative regulation governing pregnancy leave.
- Ohio has an “aid and abet” statutory provision that is being used by plaintiffs’ counsel as an alternate way to individually sue supervisors (Ohio Revised Code, 4112.02(j)).
- If a court determines that a covered employer has violated Section 34a of Article II of the Ohio Constitution (minimum wage), it is liable for the employee’s costs and reasonable attorneys’ fees and damages calculated “as an additional two times the amount of the back wages”.
What do you consider unique to those doing business in your state? Ohio recognizes a qualified privilege when disclosing employment information to a prospective employer (Ohio Revised Code § 4113.71). That privilege is lost if the provided information is false, with the deliberate intent to mislead, or constitutes unlawful discriminatory practice.
- Compared to other states, Ohio’s workers’ compensation system is more reliant upon quasi-legal proceedings and the legal process.
- Although limited in scope, employees may still bring intentional tort claims against employers for workplace injuries (Ohio Revised Code § 2745.01).
- Ohio courts have created an amorphous body of public policy exceptions to the employment-at-will doctrine.
- Ohio has a separate statute governing the payment of sales commissions to sales representatives where the contract does not specify how commissions must be paid (Ohio Revised Code § 1335.11).
Is there any general advice you would give in the labor/employment area?
- Ohio employers cannot require job applicants to pay the cost of a medical examination.
- Ohio employers must provide a copy of medical reports to current or former employees.
- Although the Ohio Supreme Court has limited the Ohio Civil Rights Commission’s position, the commission still takes the de facto approach that employers must affirmatively accommodate pregnant employees.
- Ohio and federal courts will entertain summary judgment motions in employment cases.
Emerging issues What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy?
- Ohio recently passed “ban the box” legislation for public sector employers.
- Employers may prohibit possession of firearms on the workplace property.
- Ohio recently legalized medical marijuana. The statute is very employer friendly.
Proposals for reform Are there any noteworthy proposals for reform in your state? The Ohio legislature is considering a statute that would prohibit supervisors from being individually liable for employment discrimination and retaliation claims.
The legislature is also considering a statute (the Pregnancy Reasonable Accommodation Act) which would basically raise pregnancy to the level of a protected disability.
State-specific laws What state-specific laws govern the employment relationship? Ohio has adopted the employment-at-will doctrine, but it has been judicially eroded over the years. The Ohio statutes governing employment generally are found in Title 41 of the Ohio Revised Code. Chapter 4111 generally parallels the federal Fair Labor Standards Act, while Chapter 4112 generally parallels Title VII of the Civil Rights Act. Ohio also has statutes relating to the payment of wages (Ohio Revised Code § 4113.15) and whistleblower protection (Ohio Revised Code § 4113.51).
In addition to statutory enactments, the Ohio Supreme Court has recognized the common law claim of wrongful termination and violation of public policy. This at-will exception permits employees to challenge a discharge decision where it contravenes Ohio public policy as expressed in the common law, the Ohio Constitution, or Ohio statutory law.
Who do these cover, including categories of workers?
Ohio laws (with different thresholds for the required number of employees) generally cover employees, not independent contractors.
Misclassification Are there state-specific rules regarding employee/contractor misclassification? Yes. Ohio’s state agencies (e.g., unemployment, workers’ compensation and tax) rely on different standards to determine whether an individual is an employee or independent contractor. Ohio courts engage in case-by-case analysis in other employment claim situations.
Contracts Must an employment contract be in writing? No. Ohio courts recognize implied-in-fact contracts, unilateral contracts, and promissory estoppel claims when the alleged employment contract is not written. The distinctions between those theories is less than clear. However, employment contracts that exceed one year must be in writing. It is recommended that an employment contract (which has numerous terms and conditions) be reduced to writing.
Are any terms implied into employment contracts?
- Employment contracts for an indefinite period of time are at will. Either party can terminate them at any time, for any or no reason—except an illegal reason.
- Contracts for a specified term are not considered terminable at will by either party before their expiration. Those contracts may be terminated only for the reasons set forth in the contract or, absent such detail, only for just cause.
- Ohio courts do not imply a covenant of good faith and fair dealing to employment at-will relationships.
Are mandatory arbitration agreements enforceable? Assuming such provisions do not violate a public policy issue, mandatory arbitration agreements are generally upheld in Ohio.
How can employers make changes to existing employment agreements? Ohio law focuses on contract law legal principles and the actual provisions of the agreement. Continued employment is sufficient consideration to revise an employment agreement (e.g., non-competition).
Advertising What are the requirements relating to advertising open positions? Except where based on a bona fide occupational qualification certified in advance by the Ohio Civil Rights Commission, no employer or recruitment agency can express a preference, limitation, or specification based on race, color, religion, sex, military status, national origin, disability, age, or ancestry.
Background checks What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests Ohio has “ban the box” legislation for public employers. Ohio law mandates that schools, daycare centers and healthcare facilities, among others, conduct background checks for applicants. Generally, Ohio mirrors federal law for private employers.
(b) Medical history Ohio has no specific law limiting a private employer’s ability to make medical inquiries of its employees. Ohio law mirrors federal law.
(c) Drug screening Ohio has no specific law regulating drug and alcohol testing for private employers. Generally, Ohio law mirrors federal law.
(d) Credit checks Ohio has no specific law regulating credit checks or the use of credit reports in the employment context.
(e) Immigration status Ohio has no specific law governing immigration status.
(f) Social media Ohio has no specific law governing social media passwords in the employment context.
Wage and hour
Pay What are the main sources of wage and hour laws in your state? Section 34a of Article II of the Ohio Constitution and Chapter 4111 of the Ohio Revised Code. Ohio law generally parallels the Fair Labor Standards Act.
What is the minimum hourly wage? The hourly minimum wage in 2016 is $8.10 for most Ohio employers. The minimum wage is indexed to inflation and adjusted annually.
What are the rules applicable to final pay and deductions from wages? Section 4113.15 of the Ohio Revised Code requires prompt payment of amounts earned by employees. Generally, discharged employees should receive their last check on the next applicable pay date. There is no requirement that employees be paid on their last working day. Other than mandatory taxes and withholdings, garnishments and court orders, employers may not make deductions from employee wages unless specifically authorized by the employee in writing.
Hours and overtime What are the requirements for meal and rest breaks? Ohio has no specific law mandating meal and rest breaks for adult employees. Minor employees working more than five consecutive hours must receive a 30-minute rest break (Ohio Revised Code § 4109.07(C)).
What are the maximum hour rules? There are no maximum hour rules for adult employees in private sector employment. Chapter 4109 of the Ohio Revised Code governs the employment of minors and details specific work hour limitations for minor employees. The employer must keep detailed payroll records of minor employees which include:
- name, address, and occupation;
- number of hours worked each day of the week;
- the time work started and stopped;
- meal period start and stop time;
- any deductions made; and
- the amount of wages paid each pay period.
Pay records for minors must be open for inspection and copying by the director of commerce and retained for two years.
How should overtime be calculated? Ohio law parallels federal law. An employer must pay overtime at the rate of one-and-a-half times the employee’s regular rate for all hours over 40 hours in a working week.
What exemptions are there from overtime?
- Agricultural employees.
- Employees of the US government.
- Babysitters in the employer’s home.
- Live-in companions to a sick, convalescing, or elderly person whose principal duties do not include housekeeping;
- Individuals delivering newspapers to consumers.
- Outside salespersons compensated by commissions or individuals employed in a bona fide executive, administrative, or professional position as defined by the Fair Labor Standards Act.
- Individuals working or providing services of a charitable nature in a hospital or health institution for which compensation is not sought or contemplated.
- Fire or police protection agency members or students employed on a part-time or seasonal basis by a political subdivision of Ohio.
- Employees of a camp or recreational area for children under 18 years old, which is owned and operated by a non-profit corporation or group of organizations deemed exempt by the Internal Revenue Service.
- Any individual employed by the state legislature.
Record keeping What payroll and payment records must be maintained?
For a period of not less than three years, employers must keep a record of:
- the name, address, and occupation of each employee;
- the rate of pay and amount paid each pay period; and
- the hours worked each day and each working week, as well as any deductions made.
These records must be open for inspection and copying by the director of commerce (Ohio Revised Code § 4111.08, see also Section 34a of Article II of the Ohio Constitution).
Discrimination, harassment and family leave
What is the state law in relation to: Protected categories
(a) Age? Ohio law covers the state, any political subdivision of the state, and employers with four or more employees. It prohibits discrimination on the basis of age (40 years old or older) (Ohio Revised Code Chapter 4112).
(b) Race? Ohio law prohibits discrimination on the basis of race.
(c) Disability? Ohio law prohibits discrimination on the basis of disability.
(d) Gender? Ohio law prohibits discrimination on the basis of gender.
(e) Sexual orientation? Ohio law does not expressly prohibit discrimination on the basis of sexual orientation. However, several cities and other local jurisdictions have statutes or ordinances that prohibit discrimination on the basis of sexual orientation.
(f) Religion? Ohio law prohibits discrimination on the basis of religion.
(g) Medical? Ohio law prohibits discrimination on the basis of disability.
(h) Other? Ohio law also prohibits discrimination based on color, military status, and ancestry.
Harassment What is the state law in relation to harassment? Harassment based on statutorily protected classifications is illegal. Ohio courts generally follow federal law.
Family and medical leave What is the state law in relation to family and medical leave? Ohio has no separate family and medical leave statute. However, it does have a separate Ohio Military Family Leave Act (Ohio Revised Code Chapter 5906).
Privacy in the workplace
Privacy and monitoring What are employees’ rights with regard to privacy and monitoring? Ohio private sector employees have little or no expectation of privacy in the workplace regarding their use of the employer’s computers, communication devices, and voicemail system. It is recommended that employees receive written notification of that lack of any expectation of privacy. Ohio is a one-party consent state for purposes of audio recording.
Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts? No.
Bring your own device What is the latest position in relation to bring your own device? Ohio has no specific law governing employees who bring their own device to work.
Off-duty To what extent can employers regulate off-duty conduct? Ohio has no statutory provisions governing a private employer’s regulation of legal or illegal off-duty conduct. Generally, an Ohio private employer can take action based on an employee’s illegal off-duty conduct. Generally, that same employer may regulate legal off-duty conduct to the extent that it legitimately affects the employer’s business, but public policy considerations may also be triggered in certain situations.
Gun rights Are there state rules protecting gun rights in the employment context? No. Employers can prohibit employees from bringing concealed weapons onto the employer’s premises or into the workplace.
Trade secrets and restrictive covenants
Intellectual Property Who owns IP rights created by employees during the course of their employment? Determining who owns IP rights created by employees during the course of their employment depends on the type of intellectual property being created. In the case of copyrights, an employer owns a copyright in an employee’s original work of authorship if it is considered a “work made for hire” (i.e., if the works are prepared within the scope of his or her employment). If a work of authorship is not within the scope of employment, the employer must obtain a written assignment to own a copyright in the work of an employee. In the case of inventions, whether patentable or not, an employer can own the invention of an employee if the employee is hired to invent or is under a contractual obligation to assign to the employer.
Restrictive covenants What types of restrictive covenants are recognized and enforceable? Ohio courts recognize restrictive (e.g., non-competition and non-solicitation) covenants, provided that they are reasonable in scope, duration, and geographic area. Depending on the circumstances, Ohio courts may reform overly broad covenants to make them reasonable.
Non-compete Are there any special rules on non-competes for particular classes of employee? No.
Right to work Is the state a “right to work” state? No.
Unions and layoffs Is the state (or a particular area) known to be heavily unionized? Northern Ohio (Toledo, Cleveland, Canton, Akron, Youngstown) is known to be relatively heavily unionized. Overall in 2015, union members comprised 12.3% of all wage and salary workers in Ohio, compared to 11.1% nationwide.
What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs? Ohio has no plant closure or mass layoff statute. The Ohio Department of Job and Family Services must be notified where more than 25 employees are being laid off at the same time.
Discipline and termination
State procedures Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures? None for private sector employers.
At-will or notice At-will status and/or notice period? Unless the parties agree to the contrary, employment at will is presumed. As a recommended best practice, most employers confirm the at-will relationship in writing, applications, offer letters, restrictive covenant agreements, and the employee handbook. There is no Ohio law mandating that a certain notice period be given before terminating an employee.
What restrictions apply to the above? The following are exceptions to Ohio’s at-will doctrine:
- federal and state laws (e.g., discrimination, National Labor Relations Act, workers’ compensation retaliation, jury duty, wage withholding and wage garnishments and whistleblowing);
- public policy claims;
- implied contract claims; and
- promissory estoppel claims.
Final paychecks Are there state-specific rules on when final paychecks are due after termination?
Section 4113.15 of the Ohio Revised Code requires prompt payment of wages. There are no special rules concerning accelerated payment on the date that employment is terminated. Generally speaking, payment no later than the next regularly scheduled pay date is acceptable.