MEDICAL MARIJUANA IN THE WORKPLACE

by Jack S. Malkin, Esq., April 12, 2021

In June 2016, legislation was signed legalizing the use of medical marijuana for certain medical conditions only. Although the new law took effect on Sept. 6, 2016, Ohio must first establish the Medical Marijuana Control Program before medical marijuana can be sold or used. This program, which may not become operational until sometime in 2018, will regulate the licensing of marijuana cultivators, processors and testing facilities.

Any retailer who properly obtains a license from the Ohio Board of Pharmacy may dispense medical marijuana, but only in certain forms, such as oils, ingestables and patches. The smoking of marijuana is still prohibited.

It is important to note that employers are not required to accommodate an employee’s use or possession of medical marijuana. Employers can discipline, discharge, refuse to hire, or take any other adverse employment action against an employee because of the employee’s use, possession or distribution of medical marijuana. Employers that maintain a zero-tolerance policy will force medical marijuana users to seek other employment should they choose continued use. Therefore, employer should review their drug policies and may wish to modify them to provide for zero drug tolerance.

The policy should clearly provide that marijuana is an illegal drug under federal law, and that the employer prohibits its employees from using any form of marijuana for any purpose, including for medical use, even if allowed under state law. The policy should also prohibit illegal drug use, regardless of where or when the use occurs, rather than prohibiting illegal drugs at work or during business hours.

Finally, and most importantly for the foreseeable future, employers need to be aware that any use of marijuana for medical purposes would be illegal until Ohio establishes the Medical Marijuana Control Program.

For more on your rights and obligations as an employer, please contact me for guidance and assistance.

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Duties and Rights Regarding Sexual Harassment In The Workplace

by Jack S. Malkin, Esq.

Q: Does the law specifically address it?

A: Though there is no explicit federal or Ohio law regarding sexual harassment, it is considered a form of sexual discrimination, which is prohibited by federal and Ohio law. Cases involving sexual harassment most often concern workplace behavior.

Q: What is considered “sexual harassment” in the workplace?

A: Sexual harassment is severe or pervasive conduct that can take many forms, such as unwelcome sexual advances, requests for sexual favors or inappropriate comments or references. Sexual harassment can be physical, verbal or visual, and often involves an express or implied expectation that harassing actions must be tolerated in order to get or keep a job. Such an expectation may also be considered “sexual harassment” when used to make employment decisions (e.g., giving raises or promotions), or when inappropriate sexual behavior creates a hostile or intimidating work environment.

Q: What are some examples of sexual harassment?

A: Depending on certain circumstances, examples may include sexual teasing, jokes or comments, massages or sexual touching, certain personal gifts, the display of sexually suggestive material and personal questions about an individual’s sexual life. But note that sexual harassment does not need to be lewd or even sexual in nature to be illegal. Any severe or pervasive harassment aimed at a person because of his or her gender is considered sexual harassment. Further, a woman subjected to constant physical or verbal bullying and hostility because she is a woman may bring a claim of sexual harassment even if the harassment is not sexually explicit.

Q: Why should an employer be concerned about sexual harassment?

A: First, it is obviously good business for employers to foster a positive work environment. Second, employer have a legal duty to provide a working environment that si free from sexual harassment. Employers and employees who act unlawfully may face legal liability.

Q: Are all workplace relationships prohibited?

A: No. However, an employer may enforce reasonable rules concerning workplace relationships.

Q: What should a company do about sexual harassment?

A: First, make it clear, in writing, that sexual harassment will not be tolerated. Your written policy should contain information about how and to whom complaints can be made (including a procedure for reporting to someone other than a direct supervisor, in cases where the report is about that supervisor). Second, promptly investigate any allegation of sexual harassment, even if the reporting employee does not want an investigation. Conducting an investigation is the best way to find out if any other incidents of sexual harassment may have occurred. Third, take reasonable steps to eliminate any existing sexual harassment. While it is not required, it is usually a good idea to follow up with the reporting employee to make sure he or she understands that the company has taken these reasonable steps.

Q: What is the responsibility of the employee?

A: Make sure that the conduct cannot be construed as sexual harassment. If an employee has been subject to or has witnessed sexual harassment, they may confront the alleged harasser, if possible, by politely but firmly making the harasser aware that the conduct is unwelcome. “Going along” sends the wrong message. Also, you should follow company policy and report the conduct to the appropriate individual. Reporting the harassment is crucial because usually employers are only responsible if the harassment is properly reported and the employer fails to put a stop to it. It is best to make the report in writing so that the employer cannot later deny that the harassment was reported.

Q: How can you tell the difference between sexual harassment and consensual conduct?

A: It may all depend on the circumstances. Usually, the question is whether a reasonable person would perceive the conduct to be sexually harassing in nature. Generally, the issue is not whether the alleged victim engaged in some sexual discussions or jokes, but whether the conduct was unwelcome. Employees should not assume, however, that certain comments or jokes are acceptable simply because others have not complained. Although not a legal test, one way to identify unacceptable conduct is to consider how much embarrassment a newspaper report of the actions or comments might cause.

Q: What rights do employees have if sexually harassed?

A: A charge of discrimination can be filed with the Ohio Civil Rights Commission, or the Equal Employment Opportunity Commission (EEOC) if an employer has 15 or more employees. You can also file a lawsuit in federal or state court as well, but to file a federal lawsuit, an employee must have filed a charge with the EEOC and received a “right to sue” letter. If a lawsuit is successful, the court could grant monetary damages for back pay as well as compensatory damages, punitive damages and attorney fees.

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Current issues in Employment Law

by Jack Malkin

There has been a recent trend in the workplace that does not involve complaints of discrimination or harassment. Employees are now pursuing claims for overtime under the provisions of the Fair Labor Standards Act; and in Ohio, pursuant to ORC Section 4111.03. R.C. 4111.03(A) provides that an employer must pay an employee for overtime at a wage rate of one and one-half times the employee’s wage rate, for hours worked in excess of 40 hours in one work week, unless the employee is exempt under Section 7 and Section 13 of the Fair Labor Standards Act of 1938 (“FLSA”). If an FLSA exemption applies, then the employee is not entitled to overtime pay under R.C. 4111.03(A).

Exemptions are narrowly construed against the employer. The employer must demonstrate by clear and affirmative evidence that the employee is covered by the exemption. Because there is a presumption of non-exemption, the exemption is applied only in “‘those circumstances plainly and unmistakably within the exemption’s terms and spirit.’” The manner in which an employee spends his time is a fact question, but the issue of whether the employee’s duties fall within an exemption is a question of law. As an example of a typical exemption, an individual employed as an outside salesperson who is compensated by commissions is an exempt employee. R.C. 4111.03(D)(3)(d). However, an employee cannot be considered an outside salesperson unless, in performing his/her job duties, he/she is “customarily and regularly engaged away from the employer’s place or places of business.”

To successfully maintain an action for overtime under the FLSA, a plaintiff has the burden of establishing all of the following: 1) that plaintiff was non-exempt under R.C. §4111.03(A); 2) that plaintiff has in fact performed work for which he/she was improperly compensated; and 3) that the defendant employer had actual or constructive knowledge that plaintiff was working overtime hours.

Unless this “three-pronged” requirement is met, a plaintiff fails to meet his/her burden under the FLSA to maintain an overtime claim. An employee must present sufficient evidence to establish that he/she in fact worked overtime hours and evidence that the employer had actual or constructive knowledge of any overtime.

The recent trend of pursuing claims for overtime has gained momentum because plaintiff attorneys are keenly aware that in addition to actual damages for failure to compensate an employee for overtime hours, reasonable attorney fees can be awarded. From a financial standpoint, this makes these cases attractive to those representing employees and often results in settlement to avoid large attorney fee awards.

For more on your rights and obligations as an employer, please contact me for guidance and assistance.

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Credit Card Collections in Ohio

by Jack Malkin

Credit card debt in Ohio can be viewed either as a written contract or an account. Companies and collectors in the State of Ohio use ORC Sections 2305.06 and 2305.07 for the time period (statute of limitations) they are allowed to file a lawsuit on credit card debts.

As a credit card debtor, it is important to note that the companies, attorneys and collection agencies are keenly aware of how long they may have to legally pursue and sue you in a particular case. With credit card companies increasingly selling their debt portfolios, it is common for these accounts to be considered “open-ended accounts” or perhaps even implied contracts. The statute of limitations on accounts is six (6) years from the last activity on the account, pursuant to Section 2305.07. If a creditor does not have the original contract or agreement that was signed by the credit card debtor, they are limited to pursuing legal action under the account statute and limited to the six (6) years statute of limitations.

If a credit card debtor is still being pursued after six years, it may mean that the provisions of Section 2305.06 are being used. It is not illegal, and in fact, it is quite common for collection agencies to continue collection efforts on accounts that are well past the statute of limitations. It is important to note that these accounts cannot be sued upon, nor can the collector indicate that such an action is intended, contemplated or possible.

ORC Section 2305.06 applies to "written contracts or agreements." In the credit card situation, it is applicable to the contract and/or agreement that was signed by the credit card debtor, and it is used as legal evidence that the debtor agreed to the terms and conditions as stated by the company who issued the credit card. Companies and collectors use this statute as a basis to file a lawsuit after the six-year statute expires. The statute of limitations for a written contract or agreement is eight (8) years from the time of execution, and in some instances, longer.

It is essential to be aware of the circumstances that can prolong or “revive” the statute of limitations on your credit card debt. For example, if you make a payment on a credit card debt before or after the statute of limitations expires, the statute resets from the date of that payment, and restarts the opportunity for lawsuits for another six (6) to eight (8) year period. In addition, reviving also restarts the clock on how long the debt appears on your credit report.

In sum, Ohio provides two options for creditors to pursue a credit card debt for either six (6) years or perhaps even eight (8) years. However, there are specific legal requirements when pursuing efforts beyond the six-year limitation provided by Section 2305.07. The lawsuit must include the original contract with the creditor from the date the debt account was opened, with the debtor's signature, in order to meet requirements to pursue a “written contact” claim pursuant to Section 2305.06.

For more on your rights as a consumer involved in credit card collection, please contact me for guidance and assistance.