Excerpts from August, 2004

New Overtime Regulations

The new federal overtime regulations go into effect on August 23, 2004. Federal law generally requires the payment of overtime compensation at the rate of 1.5 times an employee’s regular rate of pay for all hours worked in excess of 40 per week – unless the employee falls into one of the job classifications specifically exempted under the regulations. Perhaps the most common exempt classifications are executive, administrative, professional and outside sales employees. Among other changes, the new regulations raised the minimum weekly salary to $455, and changed the duties test for some exemptions.

NLRA Protects Non-Union Employees, Too

Many employers are not aware that the National Labor Relations Act (NLRA) applies to unionized, as well as non-unionized, work places. Because the main purpose behind the NLRA is to protect an employee's right to act together with other employees, all employees have the right to discuss the terms and conditions of their employment with others.

Are Your Policies Up To Date?

In the past year, the courts and legislators have been busy creating new rules for employers to comply with. As a result, it is critical that you review and update your employment policies.

The Sixth Circuit Court of Appeals recently ruled that employers cannot discriminate against transsexuals. In its decision, the court ruled that “discrimination based on transexualism is rooted in the insistence that sex (organs) and gender (social classification of a person as belonging to one sex or the other) coincide. This is the very essence of [unlawful] sex stereotyping.” Smith v. City of Salem.

Cell phones equipped with cameras are a security and privacy risk for employers. As a result, you should seriously consider banning the presence of such cell phones from the workplace.

Finally, review your leave policy for compliance with the Family and Medical Leave Act (FMLA). The U.S. Court of Appeals recently ruled that an employer cannot deny FMLA leave on the grounds that an employee failed to comply with internal company procedures—as long as the “employee gives timely verbal or other notice” to the employer.

Concealed-Carry Law

The New Concealed-Carry Law went into effect on April 8, 2004. Pursuant to this law, certain individuals may lawfully carry concealed weapons anywhere in Ohio, except those few places excluded by statute. Fortunately, the law allows employers by way of rule, policy, or practice, to prohibit the presence of firearms on its premises or property (including vehicles).

New “Rebuttable Presumption” Law

On October 13, 2004, House Bill 223 goes into effect. This bill provides for a “rebuttable presumption” that an employee who is injured and subsequently tests positive for drugs or alcohol under certain circumstances was injured as a result of the intoxication—thus rendering the injury not compensable under Ohio’s workers’ compensation system.

Under the new law, when an employee tests positive for drugs or alcohol, the employee has the burden of proving that the injury was not caused by drugs or alcohol if he/she refuses a company test or tests positive for alcohol or a controlled substance not prescribed by the employee’s treating physician.
However, in order to take advantage of this new law, employers must take certain actions.