Q:       What is collective bargaining?

A:        Collective bargaining is the negotiation of matters regarding employees’ wages, benefits and other terms and conditions of their employment. Collective bargaining occurs between the employer’s representatives and the union, which the employees have selected to be their exclusive bargaining representative. 

Q:       What law governs collective bargaining?

A:        Most private employers are covered by the National Labor Relations Act (NLRA), which is enforced by the National Labor Relations Board (NLRB). Some businesses in the railroad and airline industries are covered under the Railway Labor Act, and some very small enterprises may not be covered at all. Civil servants in the federal government are covered by the Civil Service Reform Act, and state, county and municipal workers fall under state or local laws. Postal workers are covered under the Postal Reorganization Act, the NLRA and the Labor Management Relations Act.

            Public employers are also governed by the state’s collective bargaining law, which, in Ohio, is enforced by the State Employee Relations Board (SERB). State collective bargaining laws limit the right of certain workers, such as police and firefighters, to strike. These workers are subject to final offer arbitration, known in Ohio as conciliation.

Q:       What must be included in a collective bargaining agreement?

A:        The law does not dictate contract terms and neither the NLRB nor SERB will impose terms upon the parties without their agreement. Rather, the law provides a framework so management and labor can negotiate a contract governing wages, hours and working conditions. The law limits the unilateral power of employers, protects workers’ rights to organize and engage in “concerted activity for mutual aid and protection” and prohibits discrimination against workers who exercise these rights.

Q:       What does it mean to bargain “in good faith?”

A:        It means that the parties must negotiate with honest intentions about the wages, hours, terms and conditions of employment and provisions of a collective bargaining agreement. Good faith is mutual obligation to meet at reasonable times and places, and to bargain with the intention of reaching agreement or resolving contract questions. “Hard bargaining” (taking a strong position on an issue) does not violate the law, but the following approaches constitute bad-faith bargaining and do violate the law:

·       surface bargaining (going through negotiation motions without intending to reach an agreement);

·       a “take-it-or-leave-it” approach; and

·       refusing to meet, delaying meetings or failing to give the chief negotiator sufficient authority to make agreements.

           
            If either party fails to bargain in good faith, the other may file an unfair labor practice charge. Good faith is determined based on the totality of circumstances.

Q:       Must an employer bargain with the employee’s union over everything?

A:        No. The law recognizes these three types of bargaining subjects:

·       Mandatory subjects involve issues of wages, hours and working conditions. The parties have to bargain over mandatory subjects.

·       Permissive subjects involve subjects other than wages, hours and working conditions (e.g., ground rules for negotiations, settlement of unfair labor practice charges or pension benefits). These may be voluntarily discussed but cannot be bargained to impasse, and either party may refuse to bargain over a permissive subject. If the parties do reach agreement on a permissive subject and incorporate it into a collective bargaining agreement, then they must abide by that agreement.

·       Illegal subjects include any proposal that violates National Labor Relations Act (NLRA), the Public Employees Relations Act (PERA), the Civil Service Reform Act (CSRA) and/or any other federal, state, county or municipal law. Illegal agreements/provisions are void and cannot be enforced.

Q:       May an employer change employment conditions during bargaining?

A:        No. Employers must maintain the “status quo” regarding existing wages, hours and working conditions, even if a contract has expired—unless there is an impasse in negotiations. An impasse means that neither party is willing to compromise further to reach an agreement. If a legal impasse has been reached on an issue, the employer may then unilaterally impose on its employees its last offer regarding that issue. For certain public employees (e.g., police and firefighters), the employer must maintain the status quo until an agreement is reached, either mutually or through conciliation.

           

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Margaret J. Lockhart, an OSBA Certified Specialist in Labor and Employment Law who is associated with the firm of Marshall & Melhorn. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       I criticized my employer to another employee in our company’s lunch room, and one of my co-workers called me a whistleblower. Am I?

A:        Probably not. Generally, a whistleblower is someone who reveals wrongdoing within or about an organization to someone in a position of authority or to the public. Many whistleblowers learn of an organization’s wrongdoing because they are employees, but whistleblowers can also be consumers, contractors, vendors or any member of the public who has a reason to know about suspected wrongdoing. Federal and Ohio law specifically defines whistleblowing as the reporting of fraud against the government or regarding specific types of suspected violations having to do with securities, tax, financial reporting, Medicare, waste of public funds, suspected felonies, specified crimes, abuse or neglect of residents at a health care facility, discrimination, wage laws and worker’s compensation. Ohio law protects whistleblowers if the whistleblowing is determined to be in the state’s best interest.

Q:       How would I make a whistleblower complaint?

A:        Follow the instructions given in your employer’s published policies or code of conduct. Those instructions will probably tell you to give your written or verbal concerns to your supervisor or to a human resources or compliance person, and may suggest an alternative to this process if is the suggested methods are not appropriate in the circumstances. If your workplace has no written complaint process, go to the appropriate supervisor or officer with your complaint. Many employers also have an established method so that anonymous complaints can be made and investigated.

            Ohio has a specific whistleblower statute that applies to certain employment situations. To receive statutory protection, you must first notify a supervisor or other responsible officer about suspected wrongdoing before you can receive whistleblower protection for reporting to state officials about your employer’s suspected criminal offenses. (Criminal offenses include a co-worker’s criminal activities, suspected felonies and actions likely to cause an imminent risk of physical harm to humans or produce a hazard to the public.) After you report the violation to state officials, your employer has 24 hours to correct the violation and inform you of the correction.  This advance notice requirement does not apply if you are reporting criminal violations of Ohio’s laws concerning air pollution, solid and hazardous waste, safe drinking water and water pollution. 

            If you are making a complaint to the federal government, you should seek help with how your complaint should be made, and to what government agency or department. The federal False Claims Act allows private citizens to bring lawsuits against federal contractors who commit fraud against the government. To bring such a suit, you must have some private knowledge of the fraud and be represented by an attorney. If your suit is successful, it is possible that you may receive a portion (usually about 15 to 25 percent) of any recovered money (“damages”).

Q:       What are my rights as a whistleblower?

A:        If your complaint is protected by Ohio or federal law, you may not be fired or have other retaliatory actions taken against you because of your whistleblowing activity. If you believe your employer has retaliated against you, you should use all of the same channels to complain. You have the right to bring legal action if the retaliation is not addressed.

Q:       What are my responsibilities as a whistleblower?

A:        Although you have the right to be protected from retaliation, you cannot take or access data to which you have no rights or disclose secret or confidential information. As the recent cases involving transmission of government documents to the website WikiLeaks illustrate, these are considered independent acts that can be disciplined or prosecuted even if the underlying complaint was based on a reasonable, good-faith belief. Also, your right to be free from retaliation does not protect you from your own performance issues or misconduct in the workplace.

            Before whistleblowing, you must base your report of wrongdoing on your reasonable belief, and make your report in good faith—never casually.  Your complaint does not have to be proven right, but if you make intentionally false or unfounded complaints, you may face workplace discipline or penalties for reporting false information to the government. You should expect to be questioned during an investigation of your complaint, and you must be able to support it. If you are not complaining anonymously you cannot insist on confidentiality, since your employer or the investigating agency must be free to investigate and take action in response to your complaint.

                 

Q:       Where can I get more information about whistleblowing?

A:        For general information about whistleblowing, visit the National Whistleblowers Center website at www.whistleblower.org. The federal Department of Labor lists whistleblower protections under federal labor laws at www.dol.gov/compliance/guide/whistle.htm. 

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Julie Davis, partner at James E. Arnold & Associates, LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       I’ve heard that Ohio law now makes it easier for criminals to turn their lives around. How?

A:        Ohio’s Senate Bill 337, effective September 28, 2012, includes a variety of changes to the criminal justice system that are designed to make it easier for people who get into trouble to move on with their lives. Two of the bill’s provisions are outlined in this article:  1) the creation of “certificates for qualification of employment” for individuals convicted of certain criminal offenses and 2) changes in the laws governing the sealing of criminal records. Other criminal justice system changes provided by this new law, but not covered in this article include: a decrease in the penalty for illegal use or possession of drug paraphernalia; changes to juvenile law and court procedures; changes regarding child support determinations; and changes in penalties for driving under suspension.

           

Q:       What is a “certificate for qualification of employment”? 

A:        An individual who has been prohibited from getting certain employment or occupational licensing as a result of a guilty plea or conviction for a criminal offense now may be able to get a certificate of qualification for employment. With some exceptions, this certificate lifts the automatic bar of employment or occupational licensing (known as a “collateral sanction”) that may otherwise result from a criminal conviction. The process for getting a certificate for qualification of employment requires a decision-maker to consider on a case-by-case basis whether to grant or deny an occupational license or employment opportunity.

            Lifting a collateral sanction may mean, for example, that the offender could get a license restored to return to work. If, however, the offender commits a felony offense after getting a “certificate of qualification for employment,” the certificate may be revoked.

            Also, the law would not eliminate a barrier to employment for someone whose prior conviction is directly related to an occupation (for example, someone who was convicted of check fraud and then applies for a job at a bank).

Q:       How do I get a “certificate for qualification of employment”?

A:        After you have been released from jail or prison following a guilty plea or conviction for a criminal offense, you can petition for a “certificate for qualification of employment.” In the petition, you must include specific information and file it either directly with the court of common pleas where you live or with the deputy director or other representative of the Division of Parole and Community Services of the Department of Rehabilitation and Correction (DRC-PCS). If your petition is complete, the DRC-PCS will forward it to the court. For the petition to be granted, you must show that you have a “substantial need” for the relief to live a law-abiding life and that granting the petition will materially assist you in getting employment or occupational licensing. In addition, you must demonstrate to the court that granting the petition will not pose an unreasonable risk to the safety of the public or any individual.

           

Q:       When may I apply for a “certificate for qualification of employment”?

A:        If you committed a felony offense, you may file a petition for a certificate after one year from the date of your release from incarceration or your final release from all other sanctions imposed for that offense. If you committed a misdemeanor offense, you may file a petition for a certificate after six months from your release from incarceration or your final release from all sanctions imposed for that offense including any period of supervision.

           

Q:       Is it possible for me to have my criminal record sealed?

A:        If you are an “eligible offender” (meaning you have not been convicted of more than one felony offense, two misdemeanor offenses if the convictions are not for the same offense, or more than one felony and one misdemeanor offense in Ohio or any other jurisdiction), this law allows your criminal record to be sealed. “Sealing” means that, if you qualify, any record of your previous offense will no longer be public and cannot be seen by potential employers or others.  Before this law was passed, only “first offenders” could have their records sealed.

However, this change in the law does not mean that every “eligible offender” can have records sealed. Before your record is sealed, a hearing must be held and the probation officer or county department of probation must make certain inquiries about you, including an inquiry about any child support obligations you may have.

Q:       Where can I get more information and find out about other provisions of this law?

A:        To see the full summary of Senate Bill 337 and all of its provisions, visit: http://www.legislature.state.oh.us/bills.cfm?ID=129_SB_337. The Ohio Department of Rehabilitation and Correction, Division of Parole and Community Services (the PCS Division) is responsible for adopting rules for the implementation of a the “certificate of qualification for employment,” as well as the petition to be used to apply for it. You can get more information at http://www.drc.ohio.gov/web/offenderreentry.htm.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). Articles appearing in this column are intended to provide broad, general information about the law. For information about a variety of legal topics, visit the OSBA website at www.ohiobar.org. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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An estimated 91 percent of employers use social media to aid in their decisions of who, and who not, to hire. While this practice is becoming increasingly common, employers should be aware of the pitfalls of seeking information about potential employees through Internet searches.

Q:       What kinds of things might an employer learn about a potential employee through a social media source?
A:        An employer can learn, for example, that a candidate demonstrates poor communications skills, has lied about his or her qualifications, posted inappropriate comments, trashed a former employer, or divulged corporate confidential information, any one of which could legitimately disqualify the candidate from further consideration. Conversely, an employer can discover that a candidate is creative, demonstrates solid communication skills, has received awards or accolades, or is well regarded or recommended by his or her peers.

Q:       What should an employer consider when conducting Internet searches to learn about job applicants?
A:        Despite the legitimate information an employer can discover about job applicants through social media and other websites, conducting such informal Internet background checks carries risks. First, information uncovered through Internet social media may be unreliable and unverifiable. Further, there is a genuine risk that an Internet search will disclose “protected” information such as age, sex, race, religion or medical information.

Q:       How can information be “protected” if it’s shared on a public website?
A:        Consider the following example: Jane Doe submits a job application to ABC Corp. The hiring manager types her name into the Facebook search bar. What happens if the search reveals that Ms. Doe belongs to a breast-cancer-survivor group? If ABC declines to interview Ms. Doe, or hires another candidate, it is opening itself up to a claim that it failed to hire her because it regarded her as disabled or because of her genetic information. Now, the company is placed in the unenviable position of having to defend its decision not to hire Ms. Doe. It may be very difficult for the company to refute a claim that the hiring decision had nothing to do with its discovery of her medical information.

Q:       Can an employer require a job applicant to turn over a Facebook password as part of the hiring process?
A:        Reports that some employers are requiring job applicants to turn over their Facebook passwords as part of the hiring process have been reported in the media, and the outrage against such a practice so great that some United States senators are calling for action to outlaw it. Three states—Maryland, Illinois and California—have already passed legislation banning it, and many other states (including Ohio) are considering similar legislative prohibitions. Facebook has also officially weighed in on this issue, via a post on its blog by its Chief Privacy Officer, which asserts that it is “a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.”

            As employers make decisions about hiring practices, they should consider broader questions such as: What type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded, with no sense of personal space or privacy? Or, do you value transparency? Do you want HR practices that engender honesty, and openness, and honor their employees’ lives outside of work?

Q:       Assuming that most employers will not go so far as to demand social media passwords from job applicants, are there legitimate benefits to be gained from gathering information about candidates from Internet sources?

A:        Yes. Despite the risks, Internet searches on job candidates hold value for employers, as long as they are done carefully. To minimize risks when doing Internet searches, employers should:

·       Consult with an employment attorney to develop policies, procedures, and guidelines for the gathering and use of Internet-based information without conflicting with discrimination and other laws.

·       Include on the job application a disclaimer stating that Internet searches may be conducted for publicly available information, either through sites such as Facebook, LinkedIn, and Twitter, or through the use of search engines such as Google and Bing. Obtain the applicant’s signed permission to conduct the search.

·       Only conduct a search after making the candidate a conditional job offer.

·       Consider using a third party to do the searching, with instructions not to disclose to you any sensitive or protected information that may be uncovered. This third party can either be a trained employee insulated from the hiring process or an outside vendor specializing in background searches.

·       Make sure not to use Internet searches as the only form of background screening, but rather to use this information as part of a larger, more comprehensive background screening program.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Cleveland attorney Jonathan T. Hyman of Kohrman Jackson & Krantz P.L.L. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.