Ohio Appeals Court Applies ADAA Definitions to O.R.C. 4112.02 Claim of Disability Discrimination

 

Last month, the Cuyahoga County Court of Appeals reversed an employer’s summary judgment on a disability discrimination claim when it had fired the plaintiff less than a month after hiring her prior to completing her 90-day probation.   Anderson v. AccuScripts Pharmacy, L.L.C., 2022-Ohio-1663.   First, the Court applied the definition of disability from the ADAA, rather than the more restrictive definition from the ADA, to find that the plaintiff suffered from a disability.  Second, it found a material factual dispute as to whether the plaintiff had actually engaged in misconduct – by leaving work without authorization before the completing her shift. 

According to the Court’s decision, the plaintiff claimed that she had informed her employer during her job interview that she suffered from epilepsy (which it denies) and gave them a list of the medication she regularly took (which it admits) to ensure that she did not fail any drug tests.  The employer admits that it asked her if she could drive and claimed to ask that of all applicants.  The employee handbook only referred to a 90-day introductory/probationary period twice.    She claims that she had had no performance issues after beginning work on May 8, but it contends that in just a few weeks she had been missed work on May 15 (because of a spider bite), was hours late to work on May 16, violated a few rules and then left work on May 19 without authorization after she had explained that she did not feel well.  None of the performance issues were documented.    She claims that she told the shift supervisor on that Saturday that she had epilepsy and wanted to bring her service dog into the pharmacy with her to alert her to oncoming seizures.  The supervisor claims that she only said that she was not feeling well after taking too much menstrual medication and was authorized to take a short break.  The supervisor denied authorizing the service dog because it would have to be cleared with the State Pharmacy Board and was not her decision to make.   The supervisor says that she went looking for her after 15 minutes, could not find her and reported the absence (but not the service dog) to the manager on Monday, when he decided to terminate her.  When informed of the termination, the plaintiff objected on the grounds that she had volunteered to work on Saturday, which was not her scheduled shift.  “Please tell me where in the handbook it says you cannot go home on days you aren’t scheduled.”    She also claimed that the supervisor had told her that she could leave after lunch if she was not feeling any better.  The employer claimed that it generally fired employees for poor attendance after only one verbal warning.  Once litigation commenced, the plaintiff claimed that her supervisor encouraged her to leave work early because they were not busy, denied asking to leave early, but also claimed that the supervisor had been unsympathetic and condescending.

She later filed suit claiming that she had been fired for requesting to bring her service dog and because of her epilepsy.  The trial court granted the employer judgment on the grounds that she did not suffer from a disability because she failed to submit evidence that her epilepsy substantially limited any major life activities.  She had testified as to the various types of seizures that she suffered and how they affected her.   She takes medications to control her seizures and has not had a significant seizure between six and eight months.    However, she often had tonic-clonic type seizures around her menstrual cycle and wanted to bring her service dog with her during that time because it would alert her to an oncoming seizure and, thus, prevent her from becoming injured during a seizure.

The trial court found that the plaintiff had failed to show that her epilepsy “substantially limited” a major life activity.   O.R.C. §4112.02 does not define “substantially limits” and in 1998, the Ohio Supreme Court had directed courts to rely on the federal ADA for the appropriate definition.  However, in 2008, the ADA was amended (i.e., the ADAA) to broaden the definition of “substantially limits.”  The Ohio Revised Code was not then amended to incorporate the changes from the ADAA.  The employer argued (and the trial court agreed) to apply the original ADA definition of “substantially limits,” but the Court disagreed and applied the federal definition in place at the time of her termination.   The Court then found that she suffered a disability as a matter of law:

Specifically, under 29 C.F.R. 1630.2(j)(1)(vii), “[a]n impairment that is episodic * * * is a disability if it would substantially limit a major life activity when active.” It is undisputed that when Anderson is experiencing a seizure, she cannot work, see, speak, hear, and sometimes breathe.

The Court then found that there was a genuine dispute of material fact as to why the plaintiff had been terminated:

Anderson averred that during her May 19, 2018 shift, she experienced an “aura” and told Bauman she was not feeling well. Anderson further testified that Bauman told her to go home. Bauman, on the other hand, testified that Anderson stated she was not feeling well, and Bauman told her to “go into the break room and sit down for a while and see.” Bauman testified that she did not tell Anderson to go home. In other words, there is at least a question of fact whether Anderson left her shift with or without permission.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court Affirms BWC Decision that Workers Were Misclassified as Independent Contractors

 Earlier this week, a divided Ohio Supreme Court affirmed a decision of the Bureau of Workers’ Compensation and agreed that there was sufficient evidence to show that workers were employees and not independent contractors under the common law right to control test.  State ex rel. Ugicom Ents., Inc. v. Morrison, Slip Opinion No. 2022-Ohio-1689.   While some evidence supported the employer, there was sufficient evidence to show that the employer exercised too much control over the workers to consider them independent. 

According to the Court’s opinion, following a 2009 audit, the BWC found that the workers had been misclassified as independent contractors for the past five years and assessed the employer with $346,817 in unpaid premiums.  The employer appealed and was initially successful because the BWC had applied the 20-factor test instead of the common law test.  Upon remand and following an evidentiary hearing, the BWC again found that the workers had been misclassified. 

The employer was a Time-Warner Cable contractor.  Workers had to be approved by TWC and pass TWC’s drug and background checks.  The workers would be assigned jobs at a certain price by the employer, but were not required to accept them and could schedule them at any time (with the authorization of the property owner), although they were expected to respond within 2 hours.  The cables were supplied by TWC, but the workers otherwise used their own tools.  The workers drove their own vans (but with the employer’s logo and TWC identified on them) and wore TWC contractor badges.  The workers were required to sign one-year agreements which contained non-compete clauses (which did not apply post-employment) and could be terminated on 60-days' notice.   A quality inspector checked about 20% of the work.  There was some dispute about the amount of skill required, but it was once described as just digging and filling a trench for the cable and connecting it to the house.

There is no bright line test for the common law test, and a number of factors are considered. 

The factors which demonstrated employment status included:  The work was an integral part of the employer’s business.  The workers did not seem independent from the employer because they wore badges and vests and drove vans with the names of the employer and TWC.  This factor is one of the most important considerations in evaluating employment status.  The jobs were posted at set prices with a take-it-or-leave it approach and were not negotiated or bid on by the worker and this was found to exercise control over the workers.  The workers did not advertise or offer their services elsewhere and had long-term and ongoing  relationships with the employer.   The workers could not offer their services to the employer’s competitors because of non-compete clauses.  The work involved required minimal skill or training.

The factors which indicated independent contractor status included: They signed independent contractor agreements and received 1099 tax forms. They were able to accept or reject jobs based on their complexity and distance.  The workers supplied their own tools, ladders, vehicles, cell phones, etc. and the BWC was found to have erred in not crediting this factor.  The BWC was also found to have erred in construing control over the details and quality of work, which were factors that supported independent contractor status.  No one told the workers where or how to dig.  This was not just an indication of competence; “a lack of supervision is indicative of a lack of control.”  They could accept or reject any assignment and set their own hours of labor.  The quality standards were set by TWC, not the employer.  Nonetheless, “even if [the employer] had prescribed the standards, a contract provision stating that a job shall be performed subject to the “ ‘approval or satisfaction of the employer * * * is not an assumption by the employer of the right to control the person employed as to the details or method of doing the work, but is only a provision that the employer may see that the contract is carried out according to the plans.’ ” That TWC might fine the employer for substandard work was not indicative of whether the workers were employees of the employer.

The Court agreed that the BWC erred in construing piece rate offers by the employer to be indicative of an employment relationship because it mistakenly relied on a different test under the FLSA: “the bureau erred in concluding that the installers’ receipt of piece-rate compensation (essentially, payment per job rather than payment per hour) was evidence of an employment relationship.”  Nonetheless, the “take it or leave it” approach and lack of negotiation for making the offers was evidence of control by the employer.

The Court was also unmoved that the BWC disregarded and gave no weight to uncontroverted affidavits from a couple of workers confirming that they believed that they were independent contractors.   Similarly, the Court found no abuse of discretion that the BWC also refused to assign any weight to the independent contractor label used in the parties’ agreement. 

Although the bureau was perhaps too dismissive of the contract—by suggesting that such a contract may be a “red flag”—the bureau’s conclusion that it was not bound by the parties’ labels was nevertheless correct, because “a description by the parties of their future relationship is not necessarily determinative when viewed in light of their actual subsequent activities,”

Ultimately, the Court agreed that while there was evidence supporting contrary conclusions, it was bound by an abuse of discretion standard. “[W]e are not called upon to reweigh it here; rather, our function is to determine whether the bureau abused its discretion by entering an order that is not based on some evidence in the record.”  Albeit some of the factors weighed in the employer’s favor, there was enough evidence in the record to support the BWC decision.

The Court also affirmed the BWC decision that the quality control inspector was an employee and not an independent contractor.  Although he held himself out as an independent contractor and maintained his own workers’ compensation policy, the employer was his sole source of income, making him financially dependent on the employer.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Motions to Compel Arbitration Are Subject to Same Waiver Rules As Other Disputes

 

Earlier this week, the Supreme Court reversed an order compelling an employee to submit her FLSA claims to arbitration on the grounds that the lower courts had improperly required a “special” showing in arbitration disputes of prejudice to the employee before finding that the employer had waived its rights to compel arbitration by first litigating in court for eight months over other procedural and substantive defenses.    Morgan v. Sundance, Inc., No. 21-38 (May 23, 2022).   A unanimous Court held that the FAA precludes courts from applying a “special” waiver test for arbitration disputes which requires a showing of prejudice before a waiver will be found if such prejudice is not required in evaluating other types of waivers.

According to the Court’s opinion, the employee filed a class action alleging that the employer violated the FLSA overtime provisions even though she had signed an arbitration agreement prior to being hired.  Although it could have done so, the employer did not immediately move to compel arbitration of her claims.  Instead, it moved to have her case dismissed as duplicative of another class action.  Then, it filed an answer with affirmative defenses, none of which mentioned the arbitration agreement.   The parties attempted to mediate their dispute and then began scheduling discovery before – eight months after the litigation commenced --  the employer moved to stay the litigation and compel arbitration.    Although the employee objected on the grounds that the employer had waived its right to compel arbitration by engaging in litigation, the employer’s motion was granted and affirmed on appeal on the grounds that the plaintiff had not been prejudiced by the employer’s delay. 

Outside the arbitration context, a federal court assessing waiver does not generally ask about prejudice. Waiver, we have said, “is the intentional relinquishment or abandonment of a known right.” . . .

                . . .

               But the FAA’s “policy favoring arbitration” does not authorize federal courts to invent special, arbitration-preferring procedural rules. . . . Accordingly, a court must hold a party to its arbitration contract just as the court would to any other kind. But a court may not devise novel rules to favor arbitration over litigation. . . . If an ordinary procedural rule—whether of waiver or forfeiture or what-have-you—would counsel against enforcement of an arbitration contract, then so be it. The federal policy is about treating arbitration contracts like all others, not about fostering arbitration. . . .

                . . . So Section 6 [of the FAA] instructs that prejudice is not a condition of finding that a party, by litigating too long, waived its right to stay litigation or compel arbitration under the FAA.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Court Rejects Non-Compete Which Applied Following Employee "Termination" When the Employee Voluntarily Resigned

Earlier this month, the Franklin County Court of Appeals affirmed a judgment for physicians and a medical officer manager who were alleged to have violated post-employment restrictive covenants and misappropriated trade secrets.  Buckeye Wellness Consultants, L.L.C. v. Hall, 2022-Ohio-1602.   The Court agreed that the one-year terms of the employment agreements did not automatically renew when the contracts lacked language indicating automatic renewal and both physicians indicated that they wanted to renegotiate their contracts before they ultimately resigned between six and 16 months following the expiration of their agreements.   The non-solicitation clauses only applied during the term of the agreement and one for one year after termination of the agreements.   The clause had expired before one of the physicians had resigned.   While the court indicated that the clause could not be enforced against the other physician who had resigned only six months after his agreement expired, the Court also pointed out that the employer had failed to identify a single patient who had been inappropriately solicited and refused to find notification of a change of practice to constitute a solicitation.   The Court also agreed that one non-compete was unenforceable because the employee never worked in the restricted territory.  The Court also found that the other non-compete did not apply because the employee voluntarily resigned, his agreement implied a distinction between termination and (voluntary) separation, and the clause only applied “for one year “following termination of the Employee.”   Finally, the Court rejected the trade secret claim because the employer failed to produce any evidence that the defendants had inappropriately accessed the password protected trade secret lists or used them. 

According to the Court’s opinion, the defendants all worked at the same medical office before being hired by the plaintiff employer.  Each physician also practiced elsewhere.   The two defendant physicians entered into one-year employment agreements which contained restrictive covenants prohibiting competition and solicitation of patients.   One non-compete applied “so long as the Employee is employed by the Employer, and for a period of one (1) year following termination of the Employee.”  The other non-compete applied for one year “following termination by the Medical Doctor/Physician.”   Both non-solicitation clause applied only for one year following “after termination of this agreement.”  Interestingly, the agreements did not provide for automatic renewal.   Both physicians attempted to negotiate better terms after the first year and, when unsuccessful, submitted their resignations.  One resigned six months after his agreement expired and one 16 months after his agreement expired.   The office manager never signed an agreement or non-compete.   They ultimately formed a new practice and all patients were informed by the defendants and plaintiff of their move.  The employer then filed suit for breach of contract, tortious interference, theft of trade secrets, conversion, conspiracy, unjust enrichment, etc.  The trial court entered judgment for the defendant employees.

The most significant issue was when the one-year restrictive covenant periods commenced and expired.  As an initial matter, both clauses applied “during the term of the Agreement” and for “so long as the Employee is employed” by the employer.   Both non-solicitation clauses expired one year after termination of the agreements.   The employer argued that the term of the agreements and non-competes continued until termination of employment, but the Court disagreed.  Each clause indicated that “[t]he term of this Agreement shall commence on the Effective Date of this Agreement and shall continue for one (1) year(s) thereafter” and that the parties could revisit the physician’s compensation at the end of each contract year.  The agreements were silent as to the manner or duration of any renewal.  The employer asserted that renewal was implied, but the Court disagreed.   The language indicating that the agreement had a term of one -year was clear and unambiguous, particularly when renewal was never mentioned.   Generic references in other clauses of the agreement to potentially renewable terms was not a substitute for an explicit term discussing how long and when the contract would be renewed.  The reference to “year(s)” did not make the agreement ambiguous because it simply meant that the term “one” could have been made “five” while being negotiated.

The Court then addressed whether the restrictive covenants continued to apply after the agreements expired on their terms. 

The general rule of contracts under such a situation was " '[w]here a contract of employment for a definite time is made and the employee's services are continued after the expiration of the time, without objection, the inference is that the parties have assented to another contract for a term of the same length with the same salary and conditions of service, following the analogy of a similar rule in regard to leases.' . . . . The employee who continues working under the same terms and conditions after the employment agreement has expired becomes a hold-over employee.

However, the presumption that arises from an employee's continued employment is "rebuttable by proof that a new contract for the continued period has been entered into, or by facts and circumstances showing that the parties did not intend to continue upon the terms and conditions of the original contract."

In this case, at the expiration of the employment agreements, both physicians indicated their displeasure with their terms and conditions of employment and attempted to negotiate new agreements.    Among other things, one wanted to become a part-owner and the other wanted to work more days each week and spend more time with each patient and see more investment in EMR, etc.  “The evidence shows that the doctors did not intend to continue working under the terms and conditions of the original employment agreements, so a new one-year contract does not arise by implication of law.”  Accordingly, the terms of their prior written agreements no longer bound them and they became employed at will, entitling each of them to resign prior to completing another year of employment. 

The non-compete language was slightly different for each physician and their employment agreements expired at different times.   With respect to Dr. Santiago, the Court agreed that the non-solicitation covenant – which applied for 12 months after expiration of the employment agreement --  had expired by the time he had resigned 16 months after his employment agreement had expired.   The duration of the non-compete was ultimately irrelevant because he always worked outside the 5-mile restricted radius.   Both covenants applied so long as they were employed and were triggered by their terminations.   Although the Court thought that the language “termination by” the physician was ambiguous when Dr. Santiago had voluntarily resigned and the agreement did not define “termination,” the ambiguity was ultimately irrelevant.    In other words, the non-solicitation clause did not apply because it had expired before he resigned.  The non-compete duration was irrelevant because he had never worked inside the restricted territory.   

Dr. Hall’s situation was more complicated because he resigned only six months after his agreement had expired (before the non-solicitation clause expired) and the duration and territory of his non-compete were different:

During the term of this Agreement, including the renewals hereof, so long as the Employee is employed by the Employer, and for a period of one (1) year following termination of the Employee, Employee shall not . . . . Employee shall further not solicit any patient or employee of Employer for a period of one (1) year after the termination of this agreement.

Unlike Dr. Santiago’s agreement, Dr. Hall’s agreement contained a separate provision governing terminations which apparently did not explicitly apply to this dispute.  Also, unlike Dr. Santiago’s agreement, Dr. Hall’s agreement defined “employment separation” as "’the separation or termination of Employee's employment with the Company, regardless of the time, manner or cause of such separation or termination.’  . . . . ‘13(D) also refers to actions based on an employee's ‘termination or separation.’"  While “separation” was never mentioned in the non-compete clause, the definition of employment separation indicated that termination and separation were different terms with different meanings.  “The employment agreement clearly provided different meanings for the two terms, and they are not interchangeable.”  Because the non-compete only applied after employment if Dr. Hall were terminated, the Court concluded that it did not apply after employment if he voluntarily resigned.  

There was no discussion of the use of the terms in IRC 409A(a)(2)(A)(i) or 26 CFR § 1.409A-1 ("An employee separates from service with the employer if the employee dies, retires, or otherwise has a termination of employment with the employer.")

Oddly, the Court then converged the language of the non-compete clause with the language of the non-solicitation clause in rejecting the employer’s argument that the “termination” mentioned in the non-compete clause meant termination of their relationship, not the employee:  “the plain meaning limits termination to firing of the employee, which did not happen here. Hall was not subject to the covenant not to compete and solicit.”

The Court also rejected the claims that the defendants had misappropriated trade secrets (i.e., a password protected list of patient names and attorney referral sources).   The Court of Appeals found that the employer failed to produce any evidence that the lists were misappropriated, how or when the lists were obtained or how or when they were used.  Indeed, the employer could not identify a single patient who was supposedly misappropriated or solicited.  The Court concluded that it was mere speculation that the employer lost patients and the defendants gained patients based only on a misappropriation of password protected patient and referral source lists.

The Court rejected any argument that patients were improperly solicited when they were informed that the defendant physicians had changed medical practices:

Hall and Santiago, pursuant to their professional obligations, informed their patients that they were moving to a new location. Doctors have an obligation to their patients to ensure continuity of care and prevent a patient from being abandoned. These letters do not rise to the level of solicitation.

It is notable that there are a limited number medical providers who accept new workers' compensation patients, and so it is logical that patients will seek continuing care with a familiar provider, even when the provider moves. In addition, when you consider that Spanish speaking patients only have one or two medical providers who speak fluent Spanish, Santiago is in great demand by both patients and attorneys,  . .

Indeed, it appears that patients followed Dr. Santiago from his prior practice to the employer when he was hired and he was always busy with Spanish-speaking patients.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Collecting LTD Can Constitute Employment for Purposes of Qualifying for Unemployment

Last month, the Butler County Court of Appeals reversed the denial of unemployment compensation to a claimant who had not worked in more than 18 months while receiving long-term disability compensation.  Harmon v. ODJFS, 2022-Ohio-1142.  The ODJFS, UCBR and trial court had concluded that the plaintiff had not satisfied the 20-week qualifying work requirement since the employer had not reported wages in at least 18 months.   The Court of Appeals reversed, finding “it was unreasonable to conclude that [she] was not employed during her base period simply because she did not physically provide services during that time” when she was still considered an active employee and received LTD during the entire base period.   The Court did not address whether the claimant was available and able to work.

According to the Court’s opinion, the plaintiff was hired in 2010, was injured in February 2018 and was unable to return to work because of disabling depression.     After receiving LTD for more than 18 months from the employer’s insurance carrier, the employer informed her in August 2019 that she would be removed from “active employment” and terminated under its maximum leave policy unless she was able to return to work in the foreseeable future.    Because the plaintiff was unable to return to work, she was terminated in October 2019, continued to collect LTD until August 2020 and sought unemployment compensation after the LTD compensation ended.   Her claim was denied on the grounds that she had not worked or been paid qualifying wages for at least 20 weeks in the prior 15 months.   The employer had not reported any wages being earned since 2018.  

It is undisputed that Harmon was on Honeywell's long term disability benefit plan throughout her entire base period. Consequently, the dispositive issue in this case is whether Harmon's receipt of disability payments, resulting from an employer-approved medical leave and paid by an insurance company via her employer's policy, constitutes "employment" pursuant to R.C. 4141.01(R).

Employment is generally defined as "service performed by an individual for remuneration under any contract of hire, written or oral, express or implied." R.C. 4141.01(B)(1). Thus, the statute requires both remuneration and service in order to be eligible for unemployment compensation. . . . "'Remuneration' means all compensation for personal services, including commissions and bonuses and the cash value of all compensation in any medium other than cash[.]" R.C. 4141.01(H)(1).

The Court determined that the LTD compensation constituted renumeration for personal services rendered prior to the claimant’s medical leave:

classifying [her] disability income as remuneration is consistent with the broad language of R.C. 4141.01(H)(1), which encompasses "all compensation for personal services" in its definition for remuneration. (Emphasis added.)  . . . Additionally, such a broad interpretation of the definition of remuneration is supported by the Ohio Administrative Code, which defines the term "remuneration" to include "vacation pay or allowance, separation pay, holiday pay, paid absence allowance [and] downtime paid absence allowance[.]" Ohio Adm.Code 4141-9-04(B).  As such, it is evident that the term "remuneration" was intended to encompass private disability payments an employee  receives pursuant to her employer's disability policy.

The Court also concluded that the claimant could be considered to have served while she was still on active employment status even thought she did not personally work a single day while on medical leave:

Ohio law clearly recognizes that an applicant may be entitled to unemployment compensation and can establish "qualifying weeks" during her base period without providing actual service to an employer during that time. Such a proposition is consistent with the statutory language of R.C. Chapter 4141, which suggests an employee's service and remuneration for that service are not required to be contemporaneous to establish a qualifying week or constitute remuneration. See R.C. 4141.01(O)(1) (defining qualifying week to include weeks the individual "earns or is paid remuneration in employment"). . . .

Based upon this language, we find that an employee's past "service" can be used to establish a "qualifying week" for unemployment compensation purposes. This is because R.C. 4141.01(O)(1) clearly indicates a qualifying week may be based upon remuneration that is earned before it is ultimately paid to the employee. As such, we conclude that an applicant, like Harmon, can establish a "qualifying week" based upon her receipt of disability benefits paid by her employer as remuneration in exchange for services she previously provided during her employment.

Indeed, the Court found the UCBR to be unreasonable in denying unemployment compensation:

it was unreasonable to conclude that [she] was not employed during her base period simply because she did not physically provide services during that time.   This is because, and as explained above, [she] was an active status employee receiving remuneration in the form of disability payments while on an employer-approved disability leave during her entire base period. [She] received this remuneration in consideration of the services she had previously provided to Honeywell before becoming injured and totally disabled in 2018.

                . . . we conclude that the weeks during which Harmon received disability benefits during her base period are "qualifying weeks," and the UCRC erred in disallowing Harmon's application on the basis that she did not have 20 weeks of employment during her base period.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.