For college and NFL football coaches, this is the season of hiring and firing. For the rest of us, we can find ourselves addressing updated new year resolutions, including resolutions to find new jobs.
Based upon the current unemployment rate, a job should not necessarily be hard to come by, even for low-skilled workers. That ease of finding a job is offset a bit in our region due to the need for private transportation to get to and from almost any job. Further, beginning in 2021, another 200,000 Ohioans will be added to payrolls to work at least part-time in order to retain Medicaid health insurance.
However, for most of us, we have some ability to job-shop during this relatively positive time period in our country’s economic history. As we seek out a job (or attempt to keep our job), it is important to know what criteria potential employers can and cannot use in making their decisions as to our new or continued employment.
Federal law requires that, in seeking a job or keeping a job, potential and current employees cannot be discriminated against on the basis of age, race (including skin color regardless of race), religion (or lack thereof), national origin (but citizenship is a legitimate condition of employment) and sex. Sex discrimination has traditionally related to biological sex and pregnancy status but has grown to arguably preclude discrimination based upon sexual orientation or gender identity. Related to sex discrimination prohibitions, employers cannot discriminate on the basis of genetic identity, including medical histories of the employee or employee’s family.
Further, a person cannot be discriminated against in employment if the person previously filed or threatened to file a complaint for discrimination.
In other words, generally, an employer can choose to hire an employee, retain an employee, fire an employee or demote an employee for any reason other than for any of the “illegal reasons” identified above.
Employees may also have other protections in addition to those provided by federal law. Many states and municipalities have anti-employment-discrimination laws that are broader than those at the federal level.
Additionally, some employees are government employees, union employees or employees subject to individual employment contracts. These employees can have additional protections beyond federal law due to specific contractual obligations made by the employer.
Notably, an employee handbook may or may not be considered an employment contract, depending upon the circumstances. Thus, most employers repeatedly clarify in their employee handbooks that those handbooks are not employment contracts that would grant additional, contractual rights (beyond required, legal rights) to employees.
Very importantly, we all have Constitutional rights, including the right to free speech. However, as a part of the “deal” of employment, an employer can restrict Constitutional rights, in exchange for pay and benefits. Illustratively, a legal assistant in my office has a Constitutional right to free speech, but I can put limits on the exercise of that right (i.e. no yelling at clients or arguing about politics) in my workplace as a condition of that legal assistant’s employment.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.