Labor and Employment

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Labor and Employment

The Labor and Employment Law Practice Group represents employers in all aspects of labor, employment, employee benefits, and occupational injury law.  Group labor & employment lawyers routinely help clients address management issues as well as adversarial matters in industries such as energy, manufacturing, education, health care, construction, and natural resources.  

The Steptoe & Johnson Labor and Employment group is one of the largest labor and employment law practices in the region, made up of labor and employment lawyers, paraprofessionals and an onsite HR Consultant.

43 Team Members

We're all in this together

Know How

Alert Ohio Employment Essentials May 2013
STEPTOE & JOHNSON Ohio Employment EssentialsMay 2013No Good Deed Goes Unpunished -- Light Duty NOT A Right Under the FMLA: Todd L. SarverThe Seventh Circuit recently held that an employee does not have a right to “light duty” work under the Family & Medical Leave Act.  The employee had suffered a previous eye injury and had to have corrective surgery.  The employee took his 12 weeks of leave under the FMLA, as well as additional job-protected leave under the employer’s collective bargaining agreement.  At various times during his leave, he was released by his doctor to work “light duty” or otherwise released with restrictions. The nature of the restrictions, however, were never very clear. 
Alert No Good Deed Goes Unpunished -- Light Duty NOT A Right Under the FMLA
The Seventh Circuit recently held that an employee does not have a right to “light duty” work under the Family & Medical Leave Act.  The employee had suffered a previous eye injury and had to have corrective surgery.  The employee took his 12 weeks of leave under the FMLA, as well as additional job-protected leave under the employer’s collective bargaining agreement.  At various times during his leave, he was released by his doctor to work “light duty” or otherwise released with restrictions. The nature of the restrictions, however, were never very clear. 
Alert Paid Sick Leave?
Congress periodically considers legislation that would provide for paid sick leave rather than the current 12 weeks of unpaid leave available under the FMLA.  The U.S. Senate is currently considering another iteration of the Healthy Families Act which would provide employees with up to 56 hours of paid leave per year for an employee’s own physical or mental illness, injury, or medical condition, as well as for victims of domestic violence, sexual assault, or stalking.  It also includes leave for the care of child, parent, spouse, domestic partner, or any other blood relative or person whose affinity with the employee is that of a relative.  The legislation would apply to employers with 15 or more employees.  Stay tuned for any material developments. 
Alert The Status of the NLRB and its March Toward Shut Down
On April 9, the President nominated three individuals to the National Labor Relations Board:  Mark Gaston Pearce (D), the current Chairman whose term expires August 27, 2013; Harry Johnson (R); and Phillip Miscimarra (R).  These three nominees join the pending nominations of Sharon Block (D) and Richard Griffin (D), the now infamous unconstitutional recess appointments.  Republicans have expressed reservations about confirming the currently unconstitutional appointments.  Indeed, rather than confirming, the Republicans are calling upon them to resign.
Alert Summer Interns Aren’t Free Employees
With summer fast approaching, it’s time for employers to start thinking about their summer internship programs.  A little preparation on the front end can help employers ensure summer interns are properly classified and minimize exposure to wage claims. The Fair Labor Standards Act (FLSA) provides that employees must be compensated for their work, but interns are excluded from the FLSA’s provisions, including minimum wage and overtime requirements, if six criteria are met:
Alert Calling Employees on FMLA Leave
When would an employer want to call an employee on leave?  Think about when an employee leaves behind some loose ends before taking an FMLA leave that is weeks or months long.  Is it ok to call that employee with a job-related question? As with most legal questions, there is not a simple answer.  The Northern District of Ohio recently provided some guidance stating that “fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.”  However, such contact has to be “limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments.”  Vess v. Scott Medical Corporation (N.D.
Alert Parents Can Take FMLA Leave to Care for Adult Children
The DOL has recently issued guidance allowing parents to take up to twelve weeks of unpaid leave within a 12-month period to care for an adult “son or daughter” with a serious health condition.  The child’s age at the time the disability develops is irrelevant.  A child above the age  of 18, regardless of the onset of disability, may be considered a “son or daughter” if four requirements are met: 
Alert Veganism = Religion? Ohio Court Thinks So
An Ohio federal court recently refused to dismiss a case brought by a former hospital employee claiming religious discrimination for being vegan.  Sakile Chenzira, a customer service representative for Cincinnati Children’s Hospital, requested a religious accommodation that would exclude her from having to get the flu vaccine.  The hospital refused to exempt Chenzira and fired her for refusing the flu vaccination, which contained animal byproducts. 
Alert Are Your Handbooks And Policies Outdated?
With the rash of decisions issued by the NLRB, if you have not reviewed or updated your workplace policies or handbooks in the past three months, they are most likely outdated.  Policy topics that are frequently unlawful as currently drafted: 
Alert The NLRB Has Been A Busy Little Bee
The National Labor Relations Board (NLRB) has been very busy overturning precedent and trying to implement a pro-labor agenda.  Notwithstanding a ruling by the D.C. Court of Appeals on January 25, 2013 that President Obama’s recess appointments to the NLRB are unconstitutional, the NLRB has promised business as usual (at least until the Supreme Court addresses the issue).  This is not a good omen for employers.   The following are some of the more prominent (ominous) decisions recently: 
Alert Ohio Employment Essentials
Ohio Employment Essentials March 2013 THE NLRB HAS BEEN A BUSY LITTLE BEE   The National Labor Relations Board (NLRB) has been very busy overturning precedent and trying to implement a pro-labor agenda.  Notwithstanding a ruling by the D.C. Court of Appeals on January 25, 2013 that President Obama’s recess appointments to the NLRB are unconstitutional, the NLRB has promised business as usual (at least until the Supreme Court addresses the issue).  This is not a good omen for employers.   The following are some of the more prominent (ominous) decisions recently: 
Alert Wage and Hour Alert for Energy Industry
On Wednesday, November 14, 2012, Department of Labor (DOL) Investigator Diana Smargie spoke to the North Central WV Society for Human Resource Management (SHRM) chapter. Smargie made a number of points during her talk, one of which she was careful to highlight. As part of its 2013 enforcement initiative, the DOL will be targeting small energy producers and oil and gas service providers.  As Smargie put it, a lot of people in the industry have come up through the ranks being paid wrong, so when they are in a position to pay employees themselves, they really do not know how to pay properly and they violate the wage and hour law.So what are the chief issues she sees?  Her top three problems:
Alert Employers’ Rights Affirmed
Following significant reforms to West Virginia’s workers’ compensation system in 2003 and 2005, insured employers benefitted from statutory changes that granted them the right to review claims in which awards of permanent total disability benefits had been made. This review process allowed insured employers to determine if workers who had been granted such awards previously remained qualified recipients of the benefits. This grant of authority from the legislature remained relatively unused since the revisions to the Workers’ Compensation Act because of a lack of interpretation from the Supreme Court of Appeals. A decision entered just this week, however, is likely to change that lack of use.
Webinar June 2012 - Webcast Presentation - Employment in Ohio: 10 Things Energy Developers Should Know
To watch and listen to a recording of this webcast, CLICK HERE.June 2012 - Energy Keynote Webcast Employment in Ohio: 10 Things Energy Developers Should KnowOhio, like all states, has its own particular nuances on employment law that affect employers. In order to effectively operate in the State, you need to know the lay of the land. You will be guided through employment law issues unique to business operations in Ohio. In this webcast, Toney Stroud and Todd Sarver will discuss employment law issues that affect energy developers doing business in the Utica Shale. Discussion includes:
Webinar November 2011 - Webcast Slides - MSHA Citation Defense - An Operator's Guide
MSHA Citation Defense - An Operator's GuideUnderstanding and handling MSHA citations and petitions can be a tedious task. Steptoe & Johnson attorneys have excellent insight into MSHA and how to handle citations and will share some of this knowledge with you this month. This webcast will address the litigation process of MSHA citations and petitions, how the negotiation process works with a Department of Labor attorney, and will give you tips as to what you can do at the time of inspections/citations to help your attorneys defend you. Discussion included: The litigation process of MSHA citations and petitions Update on the backlog project Demonstration of the negotiation process Your defense: what you can do to help    
Video Deliberate Intent in West Virginia
VIDEO TRANSCRIPT
Video 5 Tips for Making a Union Organizer's Job Tougher
VIDEO TRANSCRIPTHi, my name is Jack Merinar and I’m a labor lawyer with Steptoe & Johnson.  If you’re watching this video, it’s probably because at some point you had a concern about union organizing.  Today, I’m going to share with you five tips that I think make a union organizer’s job more difficult. 
Alert Change is Coming to Your Health Plan
Health Care Reform Reaches Beyond your Health Plan In the last seven months, employers have been flooded with information regarding the changes required in health plans to comply with the Patient Protection and Affordable Care Act ("PPACA"), as amended by the Health Care and Education Reconciliation Act of 2010 ("HCERA"). Even as you work with insurers, third-party administrators, and/or human resources professionals to address health plan changes, we cannot overlook the need for changes to other types of plans. This Client Update will briefly highlight certain amendments that may be needed by year's end to a cafeteria plan or health flexible spending account plan ("Health FSA").
Alert HR Risks for Corporate Political Action
Changes in Corporate Political Activity Laws Present HR Risk
Alert Pennsylvania Ups the Ante on Employee Misclassification
Have employees in Pennsylvania? Reading this alert could save you thousands in fines. Proper classification of workers as employees or independent contractors is an issue which frequently confronts employers, especially those with operations in Pennsylvania.Effective February 1, 2011, Pennsylvania increased the price employers in the construction industry might be required to pay for misclassification of workers.
Alert PA Labor & Employment Tips - Pre-Hire Reminders
Welcome to the first edition of PA labor and employment tips. Over the next few months, we will feature focused labor & employment tips and reminders useful to companies with operations in the Commonwealth.To kick off our series, we will look at two factors important in the pre-hire process.
Alert WV Legislature Considers Changes to Workers' Compensation System
As the 2012 legislative session moves forward, two bills affecting workers' compensation remain up for consideration, including:  
Alert Pennsylvania Labor and Employment Tips II
Welcome to the Second Edition of PA Labor & Employment TipsIn our first issue we discussed two factors important in the pre-hire process. If you missed the first edition of this series, please feel free to visit PA Labor & Employment Tips.Today, I will give a brief overview of a number of post-employment, protected leaves of absence which can be problematic for employers, including:
Alert Pennsylvania Labor and Employment Tips III
Welcome to the Third Edition of PA Labor & Employment TipsPayment of Wages:In this edition of the Pennsylvania Labor update, we will take a look at the basic requirements for payment of wages in PA. While many of these points may seem like ?old hat? to long-time employers, it is important to periodically review the basics in order to avoid the stringent costs associated with wage payment actions in the Commonwealth. Points to remember include:Time Worked:
Alert OSHA's West Virginia "No-Notice" Campaign: What You Need to Know
According to media reports, the federal Occupational Safety and Health Administration (OSHA) is launching what it calls a "no-notice" campaign in West Virginia this summer. OSHA indicated that this campaign is designed to reduce construction injuries and deaths.
Alert Out Of State Employers Need To Know Ohio Workers' Compensation System Is Different
Many new out-of-state employers entering Ohio as a result of the developments in the oil and gas industry are unsuspectingly operating without proper workers' compensation coverage. Without the proper coverage from the Ohio State Insurance Fund, these employers are at risk of being non-complying employers and subject to significant liability for any non-complying claims.Steptoe & Johnson has been contacted by Kevin R. Abrams, Chief of Employer Services for the Bureau of Workers' Compensation, to discuss their concern for workers' compensation coverage for out-of-state employers.Click here to read the entire alert.

Representative Experience

  • Experienced in drafting employee handbooks and policies

  • Regularly handles employment-related grievances filed under the WV Public Employees Grievance Procedure

  • Experienced in defending employers in discrimination, retaliation, and harassment claims under the West Virginia Human Rights Act, Title VII, 42 U.S.C. § 1981, ADA, FMLA, FLSA, and ADEA, wrongful discharge claims, deliberate intent actions, unemployment compensation appeals, and both individual and collective actions under the West Virginia Wage Payment & Collection Act

  • Sought summary judgment for a large truck stop chain in federal district court in which the plaintiff claimed fraud in the inducement

  • Jury trial for a large chemical manufacturing company in a case brought by seven women alleging sex discrimination

  • Represented and advised multiple clients regarding proper employee classification under the FLSA, including auditing positions and payroll data

  • Represented and advised multiple clients regarding proper classification of contractors vs. employees

  • Represented clients in multiple jurisdictions in unemployment proceedings regarding classification of independent contractors as employees

  • Advised and counseled buyers and sellers in merger and acquisitions regarding proper classification of employees and contractors

  • Represented clients in investigations/audits by the Department of Labor

  • Represented large company in national class action lawsuit challenging exempt status of certain employees

  • Advised and trained employees of nonprofit corporation on compliance with healthcare laws, corporate policies and records management
  • Reviewed, negotiated and drafted complex contracts for publicly-traded and private corporations

  • Represented midsize and Fortune 500 companies in federal, state, and administrative cases of discrimination, wage and hour violations, sexual harassment, unemployment and related compensation claims, and wrongful and constructive discharge issues

  • Defended client against twenty-three FLSA actions

  • Counseled Maryland and Pennsylvania resorts regarding personnel issues

  • Arbitrated wrongful termination claims for employer
  • Defended health care facility in a race and national origin discrimination case through completion of jury trial

  • Sought summary judgment for a coal company on a seven-figure contract claim over liability for Coal Act obligations

  • Drafted and finalized the employee handbook and drug-free workplace policy for mining company

  • Represented a Fortune 500 gas transmission company in an unfair labor practice charge concerning company's response to a union request for information

  • Counseled financial institution in termination of senior level executive
  • Represented client against former employee for violation of non-compete and non-solicitation agreements
  • Represented employers in over 50 arbitration proceedings

  • Represented employers in over 50 representation proceedings including decertifications, unit clarifications and deauthorization petitions

  • Represented and counseled multiple employers on labor issues in bankruptcy
  • Advised and counseled multiple employers on labor, employment and WARN issues in merger and acquisition transactions
  • Extensive briefing of summary judgment motion in disability discrimination case
  • Represented client against union pension fund that levied multi-million dollar contribution assessment

  • Represented employers in over 25 collective bargaining negotiations, including first contracts, renewals, successor and effects negotiations

  • Represented major health care company in collective bargaining negotiations for renewal of collective bargaining agreement

  • Represented client in response to NLRA election petition filed by steelworkers, a recognition strike, related litigation, and negotiation of the first collective bargaining agreement
  • Represented employer filing unfair labor practice charge against union for failure to bargain in a successor situation
  • Defended client in ERISA action brought by plaintiff alleging violations of severance entitlement and denial of benefits following plant closing

  • Sought summary judgment in ADA claim brought by employee alleging discriminatory discharge

  • Sought summary judgment for national retail chain in race harassment/retaliation lawsuit
  • Defended major utility company against petition to enforce arbitration award
  • Challenged National Labor Relations Board's bargaining order against nursing home when labor board changed the size of the bargaining unit after the union election
  • Represented clients in labor and employment litigation in state and federal courts
  • Drafted numerous summary judgment motions and motions to dismiss for employers, corporate clients and insurance carriers on a variety of claims
  • Represented employers in wage and hour disputes
  • Defended client in gender discrimination case
  • Assisted construction industry contractors with picketing issues
  • Advised health care clients regarding discipline of employees who failed to comply with reporting requirements
  • Defended national medical care provider in claim alleging gender and age discrimination
  • Obtained more than 25 injunctions for illegal strike misconduct
  • Provide day-to-day advice on employment issues from hiring to firing
  • Argued over 20 cases to the West Virginia State Supreme Court of Appeals, the United States Court of Appeals for the Fourth Circuit and the New York Court of Appeals
  • Tried over 30 wrongful discharge cases in state and federal courts throughout the region

  • Engaged in collective bargaining on behalf of employers where considerable focus was placed on the question of how to allocate the costs of health care between employers and employees

  • Represented employer in jury trial in which the plaintiff alleged that his termination was unlawful due to disability discrimination

  • Guided employers' efforts to remain union free, and where necessary, to respond to union organizing attempts

  • Sought dismissal for an employer in unfair labor practice charges filed with the NLRB alleging that decision not to hire was based on anti-union bias
  • Defended discrimination suits under federal and state laws in the telecommunications, retail, publishing, printing, electric utility, banking, hotel and mining equipment industries
  • Defended employer in a Maryland OSHA case involving a bridge collapse
  • Obtained a TRO in a suit to enforce a non-compete agreement on behalf of a software company
  • Defended employer in a request for a TRO in a trade secret and breach of loyalty case against employees in the political consulting industry

  • Assisted employers and executives in negotiating employment contracts, non-competition agreements, separation agreements, and severance agreements

  • Represented employers and executives in bonus, severance and other compensation disputes
  • Negotiated numerous collective bargaining agreements in the manufacturing, steel, trucking, hotel and publishing industries
  • Represented clients in actions brought under the West Virginia Human Rights Act
  • Represented clients in actions based upon alleged public policy violations
  • Represented clients in actions brought under the West Virginia Wage Payment & Collection Act
  • Defended deliberate intent actions
  • Defended provider of health care services in wrongful death action
  • Defended resorts in litigation brought by skiers, snowboarders and other patrons
  • Defended employers of claims of permanent total disability
  • Defended discrimination claims of race, gender, age, disability, religion and national origin in state and federal courts as well as claims brought before the EEOC and state human rights agencies
  • Defended boards of education in negligence, wrongful hiring and supervision, and due process claims in both state and federal courts
  • Assisted a regional manufacturer with a reduction in force at operations in four states
  • Negotiated the severance of the CEO of a large manufacturer
  • Negotiated labor agreements with a number of different unions
  • Helped control mass picketing and violence through court litigation in state and federal courts
  • Helped federal prosecutors by investigating picket line violence, including murder
  • Advised employers engaged in strike contingency planning
  • Defended employers in unfair labor practice charge litigation before the NLRB
  • Helped employers defeat union organizing campaigns

  • Drafted employee benefit plans to correspond with employers' desires to offer retirement, health insurance, tuition reimbursement and other benefits

  • Counseled public and private employers concerning a variety of state and federal employment laws, including the ADA, FMLA, FLSA, OWBPA, NLRA, Title VII and the WVHRA
  • Provided diversity and harassment training for both management and non-management employees
  • Drafted and revised numerous employment policies and personnel handbooks
  • Developed drug testing policies and provided drug-free workplace training for both management and non-management employees
  • Defended environmental contractor in claim alleging work-related death
  • Counseled employers concerning duties under Controlled Substance Act
  • Defended numerous cases of employment discrimination before the Human Rights Commission on behalf of large hospitals as well as other employers
  • Filed numerous summary judgment motions in a variety of employment disputes
  • Served as primary outside labor and employment counsel to a major natural gas utility
  • Drafted affirmative action plans for several government contractors
  • Handled several unfair labor practice charges before the National Labor Relations Board

  • Counseled public and private employers concerning all aspects of the employment relationship

  • Sought injunctive relief for international manufacturing company to abate union strike activity
  • Negotiated over fifty labor contracts in a variety of industries while maintaining sound relationships with a number of adversaries, including the Teamsters (IBT), Steelworkers (USWA), Electrical Workers (IBEW), Chemical Workers (ICWU), Paperworkers (PACE), Brick and Glass Workers (AFGWU), Service Employees (SEIU) and Food and Commercial Workers (UFCW) unions, all without a work stoppage
  • Resolved unfair labor practice charges and defended employers in numerous arbitration cases in a variety of industries
  • Pursued numerous summary judgment motions for employers in a variety of employment disputes
  • Advised and trained public employers on compliance with federal and state employment laws
  • Managed substantial documentation in complex deliberate intent matter for a major energy client
  • Jury trial on behalf of long term care facility against claim of wrongful discharge related to allegations of improper and fraudulent documentation

  • Defended employers in wage payment and collection and retaliation claims

  • Provided many training sessions to employees of clients on various HR topics, including EEO matters, harassment, documentation, investigations, hiring and interviewing, and factors to consider before firing

Susan S. Brewer

"We believe that trusting relationships are essential to achieving client goals, but don't take my word for it, ask one of our clients.

Learn More About Susan

 

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Leaders in our Field

Steptoe & Johnson was the first firm to successfully secure regulatory approval for a multi-lateral Utica shale well.

Leaders in our Field

22 of us are ranked as “Leaders in their Field” by Chambers USA.

One Firm

Ours is a client-of-the-firm culture, service model and compensation system that matches the best talent to the assignment and puts your economic interest ahead of ours.

10.5 Years

equals the average tenure of our client relationship. We'd like to be in it for the long haul with you too.

Face-to-Face Client Interviews

25+ face-to-face client interviews are conducted every year by our CEO and firm management to learn how we can do better (so please give us an earful).

14 Offices Throughout the U.S.

14 offices throughout Colorado, Kentucky, Ohio, Pennsylvania, Texas and West Virginia.

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