Frost Brown Todd LLC

1

GENERAL PRINCIPLES

Forums For Adjudicating Employment Disputes

Federal courts have jurisdiction over disputes involving federal statutes and inter-state disputes over a certain statutory amount. Ohio courts have jurisdiction over all other lawsuits. In addition, Ohio, and federal agencies, such as the Equal Employment Opportunity Commission, the National Labour Relations Board, the Occupational Safety and Health Commission, the Ohio Civil Rights Commission, and the State Employment Relations Board (public sector) investigate charges of employer misconduct.


The Main Sources Of Employment Law

Employment law disputes are governed by local, Ohio and federal laws and regulations, and court decisions. These include, without limitation, federal statutes such as Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Fair Labour Standards Act (FLSA), and the Family Medical Leave Act (FMLA), and the Pregnant Workers Fairness Act. Ohio statutes include, without limitation, Ohio’s Civil Rights Law (ORC 4112), and Ohio’s Minimum Fair Wage Standards (ORC 4111).


National Law And Employees Working For Foreign Companies

Federal and Ohio law will apply to employees who work within Ohio but are employed by a foreign company.


National Law And Employees Of National Companies Working In Another Jurisdiction

Title VII, the ADEA, and the ADA apply to U.S. citizens working in another jurisdiction.


Data privacy

Ohio private sector, non-union, employees have little or no expectation of privacy in the workplace regarding the 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.

2

HIRING THE EMPLOYEE

Legal Requirements As To The Form Of Agreement

Most private sector Ohio employees are employed “at-will” and not subject to a contract of employment. Ohio courts recognize implied-in-fact contracts, unilateral contracts, and promissory estoppel claims where the alleged employment agreement is not written. Employment agreements that exceed one (1) year must be in writing.


Mandatory Requirements
  • Trial Period

    • There is no legal obligation to provide trial or probationary periods.

  • Hours Of Work

    • Under Ohio and federal wage/hour law, non-exempt employees must be paid one and a half times their regular rate of pay for all hours worked in excess of 40 hours in a workweek.

  • Special Rules For Part-time Work

    • No specific Ohio laws for part-time employees. Refer to Ohio and federal wage/hour laws. Part-time benefits usually are governed by the employer’s policies. See the federal Affordable Care Act for medical insurance eligibility.

  • Earnings

    • The federal minimum wage is $7.25 per hour. In 2023, Ohio’s minimum wage is $10.45 per hour. Most non-exempt employees in Ohio must be paid the higher rate.

  • Holidays/Rest Periods

    • There are no required holidays, meal, or rest periods for private sector employees.

  • Minimum/Maximum Age

    • Ohio and federal law place restrictions on employing individuals under 18 years old. Except in very limited cases where a mandatory retirement age is required by law, Ohio and federal law prohibit discrimination against employees who are age 40 or older.

  • Illness/Disability

    • Ohio and federal law prohibit discrimination against individuals with disabilities. The FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid job-protected leave to care for their own serious health condition or to care for a spouse, child, or parent with a serious health condition or for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation. It also entitles eligible employees to take up to 26 weeks of job-protected leave in a “single 12-month period” to care for a covered service-member with a serious injury or illness

    Ohio law requires most employers to provide workers’ compensation benefits (including leave when appropriate) for on-the-job injuries.

  • Location Of Work/Mobility

    • There are no mandatory Ohio requirements regarding work location and mobility.

  • Pension Plans

    • Pension plans are not mandatory. If such a plan is provided, it is regulated by the Employee Retirement Income Security Act (ERISA).

  • Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)

    • Ohio does not mandate paid parental rights benefits. The FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid job-protected leave because of the birth of a child and to care for the new-born child or because of the placement of a child with the employee for adoption or foster care.

  • Compulsory Terms

    • No such requirements.

  • Non-Compulsory Terms

    • No such requirements.


Types Of Agreement

The parties to a contract determine its content. Ohio does not require different rules for different types of agreements (e.g. oral, written, implied etc.)


Secrecy/Confidentiality

The Ohio Uniform Trade Secrets Act governs the protection of trade secrets. A trade secret is proprietary information that derives independent economic value from not being generally known. Employers also may enter into confidentiality agreements protecting against the disclosure of trade secrets and confidential/proprietary information.


Ownership of Inventions/Other Intellectual Property (IP) Rights

Generally, employers own intellectual property created by their employees during their employment or created using the employer’s information, equipment, or materials.


Pre-Employment Considerations

N/A.


Hiring Non-Nationals

Ohio has no specific law governing immigration status. U.S. laws, rules, and regulations governing the work authorization of foreign nationals are complex. Basically, U.S. Citizenship and Immigration Services (USCIS) regulations establish three (3) classes of foreign nationals who are allowed to work in the U.S.: (1) aliens authorized to work incident to their immigration status; (2) aliens who are permitted to work for a specific employer incident to their status; and (3) aliens who must apply for and obtain permission from the USCIS in order to accept employment in the U.S.


Hiring Specified Categories Of Individuals

Federal contractors have certain affirmative action obligations with respect to minorities, women, U.S. veterans, and persons with disabilities under Executive Order 11246.


Outsourcing And/Or Sub-Contracting/Temporary Agency Work

There are no specific rules regarding outsourcing or subcontracting unless the employer is covered by a collective bargaining agreement (CBA) with a union.

3

MAINTAINING THE EMPLOYEE RELATIONSHIP

Changes To The Contract

Common law contract principles apply to contract changes made by either party. Unless the contract provides otherwise, such changes may require additional consideration.


Change In Ownership Of The Business

There are no general rules pertaining to changes in business ownership. However, if the employees are represented by a union, the successor owner may be required to bargain with the employees’ union.


Social Security Contributions

Both employees and employers must make social security contributions.


Accidents At Work

The federal Occupational Safety and Health Act (OSHA) governs when work accidents are reportable. The handling of work-related injuries is governed by Ohio workers’ compensation law. In most cases, this law prevents employees from suing employers directly. It also protects them from retaliation for filing a workers’ compensation claim.


Discipline And Grievance

There are no laws mandating a discipline or grievance process for private sector, non-union, employees. If employees belong to a union, then the terms of the CBA govern discipline and grievance procedures.


Harassment/Discrimination/Equal pay

Federal and Ohio law prohibit employers from discriminating in terms and conditions of employment based on statutorily protected group statuses (e.g. gender, sex orientation, gender identity, pregnancy, race, color, religion, ancestry, national origin, age (40 and over), disability, and military status). Harassment is a form of employment discrimination.


Compulsory Training Obligations

No requirement.


Offsetting Earnings

Federal and Ohio law permit offsets. Generally, the offsets require the employee’s approval (should be in writing) and may not reduce the employee’s pay to less than the applicable minimum wage. Both federal and Ohio law address deductions from an employee’s pay.


Payments For Maternity And Disability Leave

Ohio does not require private sector employers to provide paid maternity, paternity, and or disability leave.


Compulsory Insurance

No requirement.


Absence For Military Or Public Service Duties

Ohio has a separate military family leave law for covered employers (50 or more employees).


Works Councils or Trade Unions

The National Labour Relations Act (private sector) and the Ohio Public Employees Collective Bargaining Act govern union matters.


Employees’ Right To Strike

See topic above.


Employees On Strike

See topic above.


Employers’ Responsibility For Actions Of Their Employees

Generally, employers are responsible for their employees’ actions except when the employees are acting outside the scope of their employment.

4

FIRING THE EMPLOYEE

Most private sector, non-union, employees are not subject to a contract but are employed “at-will”. To the extent an employee has an employment contract, the terms of the contract, including those related to termination, are governed by contract law.

Procedures For Terminating the Agreement

There are no required procedures for terminating an individual employment relationship.

An employer who engages in a “mass layoff” or “plant closing” must follow the procedures set forth in the federal Worker Adjustment and Retraining Notification Act (WARN).


Instant Dismissal

Employers may terminate the “at-will” employment relationship at any time and for any or no reason – except an illegal one. Ohio courts, however, have created an amorphous body of public policy exceptions to the employment “at-will” doctrine.


Employee's Resignation

Employees may resign at any time and for any or no reason.


Termination On Notice

Unless specifically set forth in an employment agreement, no minimum notice period is required to terminate an employment relationship.


Termination By Reason Of The Employee's Age

Except in very limited cases where a mandatory retirement age is required by law, an employer may not terminate an employee because of the employee’s age if the employee is over the age of 40.


Automatic Termination In Cases Of Force Majeure

Ohio law recognizes the force majeure doctrine.


Collective Dismissals

Collective dismissals may trigger two federal laws: WARN and the Older Workers’ Benefits Protection Act (OWBPA).


Termination By Parties’ Agreement

The parties’ employment agreement may set forth limitations on an employer’s ability to terminate the employee. Otherwise, prior court or administrative agency approval is not required to effectuate a termination.


Directors Or Other Senior Officers

There are no special rules for firing directors or senior officers. A minority shareholder/employee of a close corporation can only be terminated for a legitimate purpose.


Special Rules For Categories Of Employee

The Ohio and federal employment laws apply to employees – not independent contractors. Child labor laws govern employment of employees under 18 years of age. In situations where an employer has a union, the parties’ collective bargaining agreement controls the terms and conditions of the union workforce.


Specific Rules For Companies in Financial Difficulties

Other than WARN, and a notification to the Ohio unemployment agency of a layoff involving 50 or more employees with a seven (7) day period, there are no specific employment laws for companies in financial difficulties.


Restricting Future Activities

Contractual agreements restricting future activities must be reasonable in scope, geographic limitation, and time in order to be enforceable in court. Typical clauses include non-disclosure, non-competition, and non-solicitation covenants.


Whistleblower Laws

The Ohio Whistle-blower Protection Act (WPA) protects employees (from retaliation) who report an employer or fellow employee for what they reasonably believe to be: (1) a “criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health; (2) a felony; or (3) an improper solicitation for a contribution”. The Ohio WPA is complex. The reporting employee must take several procedural steps to notify the employer. After such notification, the employer must correct the violation or make a reasonable and good faith effort to correct it within 24 hours. If the employee is retaliated against, he/she can bring a civil action within a set period of time.


Special Rules For Garden Leave

No Ohio statutory requirement.


Severance Payments

There is no Ohio law requiring severance payments. However, when an employer seeks a release of claims from an employee 40 years or older, the OWBPA requires consideration (e.g. severance pay) in exchange for a specific release of an ADEA claim, 21 calendar days to consider the release (45 calendar days for group terminations and lists), and a seven (7) calendar day revocation period.


Special Tax Provisions And Severance Payments

Severance payments are subject to all applicable taxes and withholdings.


Allowances Payable To Employees After Termination

No statutory requirement. Whether an employee may receive any unused and applicable paid time off balances depends on the employer’s policy covering any paid time off benefit.


Time Limits For Claims Following Termination

Federal: Because Ohio has its own state anti-discrimination agency, employees must file a charge alleging discrimination with the Equal Employment Opportunity Commission (EEOC) within 300 days after the unlawful discriminatory practices alleged in the charge were committed. The employee’s right to sue in federal court is contingent upon filing a charge of discrimination with the EEOC. A suit in federal court alleging violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and/or the Age Discrimination in Employment Act must be filed within 90 days of receipt of the EEOC’s Dismissal and Notice of Rights. Suits alleging violation of the federal Equal Pay Act (EPA) must be filed in federal or Ohio court within two (2) years (three (3) years for willful violations) of the alleged EPA underpayment.

State: Employees must file a charge alleging discrimination with the Ohio Civil Rights Commission (OCRC) within six (6) months after the unlawful discriminatory practices alleged in the charge were committed. Employees must file a lawsuit alleging violation of the Ohio Civil Rights law within six (6) years after the unlawful discriminatory practices alleged in the suit were committed. The employee’s right to sue alleging violation of state law is not contingent upon filing a charge of discrimination with the Ohio Civil Rights Commission.

5

GENERAL

Specific Matters Which Are Important Or Unique To This Jurisdiction

In 2016, Ohio legalized medical marijuana. Effective December 7, 2023, Ohio legalized recreational marijuana. We anticipate the Ohio Legislature to attempt to make changes to that law. Both the medical and recreational marijuana laws are very employer friendly.

Supervisors can be held individually liable for Ohio discrimination claims filed directly into court.

The OCRC has a separate administrative regulation governing pregnancy law.

Ohio has an “aid and abet” statutory provision that is used by plaintiffs’ counsel as an alternate way to individually sue supervisors. Ohio Revised Code §4112.02 (j).

If a court determines a covered employer violated Section 34a of Article II of the Ohio Constitution (minimum wage), the employer is liable for the employee’s costs and reasonable attorneys’ fees and damages calculated “as an additional two (2) times the amount of back wages”.

Although limited in scope, employees still may bring intentional tort claims against employers for workplace injuries. Ohio Revised Code §2745.01.

Employers may prohibit the possession of firearms on the workplace property.

Ohio has a separate statute governing the payment of sales commissions to sales representatives – not employed by the employer. Ohio Revised Code §1335.11.



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Contact a Contributing Author:
Jeffrey S. Shoskin
Frost Brown Todd LLC
United States


Disclaimer:

© 2024, Frost Brown Todd LLC. All rights reserved by Frost Brown Todd LLC as author and the owner of the copyright in this chapter. Frost Brown Todd LLC has granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this Guide.

The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: February 2024