Ohio General Assembly Amended Employer Notice Requirements to Permit Internet Postings

Over the summer, Ohio’s General Assembly amended most of the state-specific posting requirements of employers to permit employers to permit those notices on the internet when accessible to employees.  This includes:

·       Child Labor Postings, O.R.C. §4109.08(A)(2)(b) – the abstract of the statute prepared by Director of Commerce

·       Ohio’s minimum and overtime wage requirements, as summarized by the Department of Commerce, O.R.C. §4111.09

·       A summary of the Ohio Civil Rights Act, prepared by the Ohio  Civil Rights Commission, O.R.C. § 4112.07

·       Prevailing wage rate information, if applicable, O.R.C. § 4115.07

·       Notice from the employer that the results of or failure to submit to a post-accident drug test may affect their entitlement to workers compensation, O.R.C. § 4123.54(F)

·       Bureau of  Workers Compensation Notices, O.R.C. § 4123.83

 

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's New Mini-WARN Act Becomes Effective Next Week

Next week, Ohio’s new mini-WARN Act, Ohio Revised Code §4113.31, will become effective.   While it essentially codifies existing federal regulations under the federal WARN Act and, with some exceptions, requires 60 days advance notice for the employees, it also contains some state-specific provisions which may catch unwary employers off guard, including:

·       The long-form notice is generally always required, including a detailed statement explaining the reason for the layoff/plant closure, the job titles and positions affected, and “information about any available services for an affected employee, including job placement assistance, retraining programs, or counseling services.”

·       In addition to notifying the State and City, the employer is also required to notify the Chief Elected Official of the County and provide a “description of any action taken or planned to mitigate the impact of the plant closing or mass layoff, including any efforts to secure alternative employment or training for affected employees.”

·       While the federal WARN Act requires notice if the 50 employees being laid off at a single site constitute at least 33% of the site’s workforce, Ohio’s statute does not contain that provision.

·       Ohio’s statute also does not contain the 90-day aggregation period of the federal WARN Act.

Ohio’s statute retains the federal exceptions to the full notice requirement for unforeseen circumstances, faltering companies still actively seeking capital, lockouts, natural disasters, etc.

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. 

Sixth Circuit Again Rejects Religious Exemption from COVID Testing By Healthcare Worker

Last week, the Sixth Circuit affirmed an employer’s summary judgment on the Title VII religious discrimination and retaliation claims brought against a hospital by an employee who objected to wearing a mask, being vaccinated and being tested.  Henry v. Southern Ohio Medical Ctr., No. 24-3863 (6th Cir. Sept. 11, 2025).   The Court concluded that the employee’s requested accommodation placed a substantial burden on the employer, which was tasked with providing a safe place for its vulnerable patients.  It was questionable whether the plaintiff had put her employer on notice that she would accept non-invasive (i.e., saliva) testing, but in any event, such results were unreliable and took twice as long as nasal tests, which could be processed inhouse.  “We have held that an accommodation that significantly increases the health and safety risks of vulnerable patients constitutes an undue hardship.” The Court also rejected her retaliation claim because her being placed on leave was based on a pre-existing deadline and for legitimate patient care reasons and not on her allegedly protected opposition conduct. 

As many employers did, the Hospital required mandatory vaccination of its staff or regular nasal testing, which it could process inhouse within 24 hours.  A deadline was set to comply.  Every request for a religious exemption from the vaccine was granted, but the plaintiff also requested exemption from testing.  Her position involved direct patient care, including of new born babies.  She objected on religious grounds to any invasive procedures, including vaccines and tests.    After the deadline, she was placed on unpaid leave until the end of the pandemic, but refused to return when offered reinstatement because she had found other employment.   

After she filed suit, there was a factual dispute as to whether the plaintiff communicated her willingness to submit to a saliva test based on her repeated references to invasive testing. The trial court found that the only compromise she offered was to self screen and stay home if she felt sick.   In any event, the Court found that even saliva testing imposed an undue hardship on the employer.  The Court has previously found that it is an undue hardship to refuse all testing in a healthcare setting with direct patient care positions.

Now consider the request for saliva testing. Even this accommodation would place an undue hardship on SOMC by increasing the delay in analyzing [the plaintiff’s] test results. The district court concluded that “[m]ore than doubling the time it takes to learn whether a patient-facing employee is positive for the virus unmistakably compromises SOMC’s mission to serve the community and keep it safe.” . . . . The district court was correct. We have held that an accommodation that significantly increases the health and safety risks of vulnerable patients constitutes an undue hardship. . . .

Before the district court, SOMC presented evidence showing that saliva testing was a less effective method of detecting COVID infection than other forms of testing available at the time—thus increasing the risk of the spread of COVID.  . . .  [The plaintiff] introduced no evidence to dispute this. SOMC also presented evidence showing that it did not have the in-house capacity to analyze saliva testing results. Analyzing saliva tests would have required third-party analysis which would have at least doubled the time (from 24 to 48 hours) it took for SOMC to learn whether [she] tested positive for COVID.

The Court also rejected her retaliation claim based on her being placed on unpaid leave when she refused to be tested (i.e., opposed allegedly unlawful requests).   Even if the plaintiff could prove a prima facie case of retaliation, the employer articulated a non-retaliatory reason for placing her on unpaid leave: “exempting her from vaccination and testing could lead to the spread of COVID-19 among its staff and patients.”

The Court rejected her argument that the temporal proximity between her allegedly protected opposition conduct and her being placed on leave was evidence of pretext.

That argument fails, however, because SOMC put [her] on unpaid leave the day after the long-established deadline (September 17) by which every employee had to vaccinate or agree to testing. The preexisting deadline “negate[s] any inferences that may arise from the temporal proximity between [her] protected activities” and her placement on unpaid leave.  . . .

Similarly, the Court rejected her argument that refusing to consider saliva testing also showed pretext because it found that her deposition testimony could not be contradicted by her affidavit when she could not remember during her deposition  putting the employer on notice that she would accept saliva testing and the affidavit also failed to identify when and how she communicated such willingness. 

[The plaintiff] also argues that SOMC’s refusal to provide her with available alternative forms of testing shows pretext. But that argument turns on us accepting the claim that [she] put SOMC on notice during the September 14 call that she would now consider other forms of invasive testing. For the reasons explained above, her deposition testimony and affidavit don’t establish that she provided SOMC such notice.

Finally, the Court rejected her argument that the Hospital’s grant of all other exemptions (to vaccination) meant the refusal to grant an exemption for her (to testing) was evidence of pretext:

Finally, [the plaintiff] argues that SOMC’s granting of all other accommodations shows pretext.  . . . . But the argument would fail in any event because [she] has not shown that any other accommodation recipients were similarly situated to her “in all relevant respects.”  . . .  The uncontested evidence shows that of the “approximately 300” employees who requested an accommodation, all “agreed to weekly testing” except [her] and one other nurse [who resigned].

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.

Sixth Circuit Rejects Claims After Plaintiff's Public, Profane and Unprofessional Attacks on Colleagues

Last week, the Sixth Circuit affirmed an employer ‘s summary judgment on Title VII, Rehabilitation Act and First Amendment discrimination and retaliation claims brought by a professor after the plaintiff’s request to transfer to the main campus was denied.  Patterson v. Kent State Univ., No. 24-3940 (6^th Cir. Sept 12, 2025).   There was no evidence that plaintiff’s gender identity was ever discussed or considered in the decision.  The sole stray remark about the plaintiff’s mental stability  -- in light of the unprofessional comments being made -- was insufficient upon which to base a disability discrimination claim.   The employer had sufficient reason for its actions in light of the plaintiff’s unprofessional and profane attacks on colleagues, and resignation from service.   There was also no evidence that the decisionmakers were aware of any protected activities at the time of the decisions.  Finally, complaints about colleagues were not matters of public concern entitled to First Amendment protections. “Complaining about and insulting your coworkers simply doesn’t implicate a matter of public concern.”

According to the Court’s decision, the plaintiff tenured professor requested to be considered to Chair a dormant Center that had been suspended pending a reorganization.  Although the position was not open, the Dean agreed to reallocate half of the plaintiff’s teaching load so that the plaintiff could develop new course material for the dormant Center if it were to be resurrected.  The plaintiff was contacted by the Chair of the School where the Center would be housed about joining the planning committee.  The plaintiff was unhappy that the Dean and Chair would be in charge of the Center and began attacking them – using profanity and derogatory terms about their gender – on social media and in emails to other colleagues. “So to sum up, Patterson condemned both Mazzei and Munro-Stasiuk as “transphobe[s]” and “cishet white ladies in charge, with [no] content expertise,” engaged in “F*ckery,” “shit,” “trans antagonism,” and “epistemic violence” who were “quite literally killing [me].”   After a few weeks of this and plaintiff’s refusal to meet and discuss the stated concerns, the Dean cancelled the planned teaching allocation.   The plaintiff did not respond, but cancelled “and instead resigned from university service commitments.”  The Chair issued general invitations to join the gender studies and Center committees, but the plaintiff did not respond.  Instead, the plaintiff bullied those who did join the committee through tweets and applied to transfer to the main campus.  The requisite committees held a joint meeting, discussed the plaintiff's resignation from service, negative interaction with faculty colleagues and the department’s need and voted 12-2 against the transfer request.  The Dean requested that they reconvene and vote separately, which they did.  The result was the same and the plaintiff’s gender identity was never mentioned.

Title VII Discrimination

The Court rejected the plaintiff’s argument that denial of the transfer request was direct evidence of gender discrimination when there was no evidence that the plaintiff’s gender identity was ever mentioned or discussed.   Because an inference of discrimination would be required, the decision could not be direct evidence in and of itself.

[The plaintiff] also points to the committees’ discussion of whether the English department needed more faculty with backgrounds in LGBT studies, claiming that this is direct evidence of discrimination. That argument conflates a professor’s scholarly discipline with a professor’s personal traits.  . . . . An Italian person may offer to teach Italian classes, but if a university doesn’t need more Italian classes, that’s not direct evidence of animus against Italian people. So there’s no direct evidence of discrimination.

The Court agreed that the denial of the transfer request could be an adverse employment action under Title VII because it inflicted some harm.   Nonetheless, the employer clearly had a legitimate and nondiscriminatory reason for its actions in revoking the teaching reallocation and denying the transfer request:

[The employer] had legitimate, nondiscriminatory reasons for what it did. [The plaintiff] sent rude and profanity-laced tweets, emails, and texts insulting [the Dean] and [the Chair], including disparaging references to their race, sex, and occupations. Those messages violated university policy against attacking colleagues or their academic fields. And they easily provided reasonable grounds—having nothing do to with sex or gender—for disciplining or reprimanding an employee. . . .

[The employer] also had legitimate reasons to deny the campus tenure-transfer application. The evidence shows that [the plaintiff’s] lack of collegiality and decision to quit university service committees played a part. The classes [the plaintiff] wanted to teach also didn’t fit with the main campus English department’s curriculum and needs at that time. And the department wanted to preserve its ability to hire a new tenure-track professor the next year; it worried that a lateral hire from a regional campus would use up that spot. This is standard stuff for tenure decisions.

The Court finally concluded that the plaintiff could not show that these explanations were pretextual – or a disguise - - for unlawful discrimination.  “A plaintiff can establish pretext in several ways, such as by showing that the defendant’s articulated reasons had no factual basis, didn’t in fact motivate the action, or could not warrant the action taken.  . . . But there’s no evidence here to support any of those theories.”

[The employer’s] decisions had ample basis in fact. The record contains many disparaging tweets, emails, and texts, which led to a toxic work environment. And that factual basis was more than enough to warrant some kind of response. [The Dean and the Chair] were both originally excited to work with [the plaintiff]. They only changed course after the hostile tweets and texts. The tenure-transfer rejection likewise bears no indicia of pretext. The same English department had voted to unanimously to grant [the plaintiff] tenure less than a year before. If the committee members were biased against transgender people, wouldn’t they have shown it then? What’s more, after the committees voted “no” on the first transfer vote, [the Dean] realized that they hadn’t followed the right procedures. So she had them vote again. If she was biased, why not just leave the “no” vote at that? Why erase the vote and give [the plaintiff] another shot? No evidence suggests that [the employer’s] true motivation was animus against anyone’s sex or gender identity.

Title VII Retaliation

The Court also rejected the Title VII retaliation claim.  It agreed that the plaintiff could show protected opposition activities:

First, an email to a university official, Amoaba Gooden, in which [the plaintiff] resigned as a university DEI representative and complained that [the employer] wasn’t a “safe or welcoming place for trans faculty.”  . . .  Second, an email to Professor M’Baye, the English department chair, in which [the plaintiff] stepped back from service on a university “DEI Strategic Planning Process.”  . . . . Third, an email to Kathy Davis-Patterson, another faculty member, in which [the plaintiff] reported on “inequity” and “transphobes” at [the employer].  . . . . Fourth, an email to Deb Smith, who worked with the faculty union. In this email, [the plaintiff] resigned as a union representative, citing “inequity and discrimination in the workplace” at [the employer]. . . .

However, the second email never mentioned any protected activity or opposition, but instead, cited only health concerns.   Therefore, it could not be a protected activity.  In addition, the plaintiff could not show that the Center position had been filled by anyone, so there was no adverse action there.  Moreover, some of the protected activities took place after the Dean had revoked the teaching reallocation.  Finally, the remaining emails were unknown to the Dean and the tenure committees.  when the teaching reallocation was revoked.    Therefore, they could not have motivated any retaliation.

First Amendment

As for the First Amendment claims, the Court found that the plaintiff’s derogatory tweets did not touch on matters of public concern, but rather  were “complaints about other Kent State faculty members and their workplace decisions—“employee beef,” plain and simple,” which are not entitled to First Amendment protection. “The tweets are insulting, disparaging, and targeted. They use profanities, and they describe [the Dean and Chair] in terms of their race and sex. Complaining about and insulting your coworkers simply doesn’t implicate a matter of public concern.”

[The plaintiff] frames the tweets as publicizing [the employer]s alleged transphobia and exposing discrimination in the workplace. In fairness, a few tweets do make more general references that sound less like targeted insults. For example, one tweet states: “Academia is fundamentally racist, heterosexist, cissexist, ableist, classist & sexist.”  . . . . In isolation, perhaps that qualifies as protected speech.  . . . . But the tweet is swarmed on either side by other attacks on [the Dean and Chair]. Indeed, that same tweet’s very next sentence accuses [the Chair] of “violen[ce].”  . . . . A public employee can’t blend protected speech with “caustic personal attacks against colleagues,” and then use the protected speech to immunize those attacks. . . .

And even if the tweets did involve a matter of public concern, they still wouldn’t receive protection. [The employer’s] interest as an employer in administering effective public services outweighs Patterson’s interest in this kind of trash talk. . ..

There’s a way to raise awareness of discrimination without engaging in profanity-laced and race- and sex-based aspersions against colleagues. The tweets created serious strife within the [the employer] community, causing [the Dean and Chair] to feel harassed and insulted. And it led to a dysfunctional work environment for several months. [The Chair] had to text [the Dean], for example: “I’m really thinking continuing [having [the plaintiff] involved] is unhealthy for the potential program and school, at this point. It’s clearly already having an impact. I have concerns.”  . . . . [The Dean] also testified to how noxious things had gotten. “The foundation of [revoking the offer],” she stated, “was the toxic, hostile tweets that [the plaintiff] had been posting over the course of over a month . . . . [I]t was escalating, continually targeting [the Chair], in particular, continually targeting [other professors], to a certain extent myself.”  . . . . The Dean discussed how [the plaintiff] had “show[n] over, and over, and over again” a refusal to be collaborative or respectful and was “completely trying to undermine the process.”  . . . . In short, [the plaintiff] had compromised any “ability to lead any initiative” and any “ability to work in the Center, or the [major.]”

[The employer’s] business is educating students. When an employee seriously undercuts the university’s power to do its basic job, the Constitution doesn’t elevate the employee over the public that [the employer] exists to serve. All told, “[t]he First Amendment does not require a public employer to tolerate an embarrassing, vulgar, vituperative, ad hominem attack, even if such an attack touches on a matter of public concern.”  . . .  When “the manner and content of an employee’s speech is disrespectful, demeaning, rude, and insulting, and is perceived that way in the workplace, the government employer is within its discretion to take disciplinary action.”

Rehabilitation Act

Finally, the Court rejected the plaintiff’s disability discrimination claim at the prima facie stage because it was based on one stray comment where concern was expressed by another professor about the plaintiff’s mental stability.

This isolated comment is not the kind of evidence that courts have found satisfies the “regarded as disabled” definition. “Personality conflicts among coworkers (even those expressed through the use (or misuse) of mental health terminology) generally do not establish a perceived impairment on the part of the employer.”  . . . . [The professor’s] remark simply expressed her concern about [the plaintiff’s] uncollegial and unprofessional attitude. At most, it is a “mere scintilla” of evidence—insufficient to survive summary judgment.

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.

Jury Upholds Employee's Termination After Admission of Post-Incident Evidence Reflecting Subjective Consent to Alleged Harassment.

Last week, the Sixth Circuit affirmed an employer’s jury verdict on Title VII  retaliatory discharge claims where the employee had alleged that she was raped by a security guard, but the employer contended that the contact was consensual and violated its policy when she was still on-the-clock.  Graf v. Morristown-Hamblen Hosp. Ass’n, No. 24-5798 (6^th Cir. 9-10-25).  Summary judgment was granted to the employer on her hostile work environment claims, which were not part of this appeal.  Evidence of her post-incident interactions and communications with the guard were relevant to show whether she subjectively believed that he violated Title VII during the alleged incident and, thus, whether she engaged in protected conduct when she reported that he had raped her.  The jury believed that the incident was consensual, and thus, she did not have a good faith belief that she was reporting a Title VII violation.  The trial judge did not violate Federal Rule of Evidence 412 when he permitted the introduction of such evidence – limited to her interaction with that particular security guard –as evidence of her subjective belief regarding consent.

According to the Court’s decision, the plaintiff became friendly with a security guard, hired through a contractor of the employer.  They exchanged hundreds of texts and frequently met during breaks in stairwells and other places.  The guard contended that they sometimes discussed intimidate details, but the plaintiff disagreed that she ever initiated such conversations.  One day, at the guard’s invitation, the plaintiff snuck during her lunch break – when she was not required to clock out -- into an unauthorized area to avoid being seen by the employer’s security cameras.  She contended that she was handcuffed and raped.  He contended it was consensual and she never used their before-agreed safe words.  She did not report the incident and returned to work after crying in the bathroom.  However, they continued to text and exchange naked photos of each other after the alleged rape.  She claimed that she had been to afraid to not comply. Six weeks later, she learned from his supervisor that he had been accused of sexual harassment by other female staff and she then reported the rape.  He was fired. 

When the employer’s HR learned of it, they also interviewed her, but did not conduct a further investigation since the guard had already been fired.  However, the employer decided to terminate her employment because she was in an unauthorized location, where she had snuck into to avoid being videotaped by security cameras, and had relations while still on the clock.   She brought suit for sexual harassment and retaliatory discharge.   The trial court dismissed the sexual harassment claim on summary judgment.  A jury ruled in the employer’s favor after the court admitted evidence about her alleged consent to the interaction with the guard -- as reflected in the post-incident texts, photos and videos -- and rejected her allegation that she had been fired for reporting the alleged rape to the guard’s supervisor.

The trial court refused to admit evidence about her conversations with others about her sexual preferences and videos that she had exchanged with the guard.  However, it admitted the texts and photos which she exchanged with the guard after the incident and the fact that she had also sent videos.  The court found the jury could decide whether she had consented or not in determining whether she had a good faith and reasonable belief that her conduct was protected by Title VII.   The Sixth Circuit agreed that this did not violate Federal Rule of Evidence 412.

Rule 412 provides in relevant part that certain evidence is not admissible. 

Federal Rule of Evidence 412 prohibits the admission of two types of evidence in cases involving sexual misconduct: “(1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition.”

However, the second part of the Rule as exceptions in civil cases: “the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.”  This Rule interacts with sexual harassment cases in cases like these where the plaintiff’s consent is an issue.  In this case, the plaintiff's consent was an issue as to whether she subjectively believed that the guard had violated Title VII when she reported him. 

“[a] person opposing an apparently discriminatory practice does not bear the entire risk that it is in fact lawful; he or she must only have a good faith belief that the practice is unlawful . . . . In the years since Booker, we have interpreted this language to mean that, in order to prove that they engaged in protected conduct, a retaliation claimant must demonstrate “that the opposition [was] based on ‘a reasonable and good faith belief that the opposed practices were unlawful.’” . . .

In holding that the protected-conduct element of a retaliation claim includes this reasonable and good-faith requirement, however, we have been careful to clarify that “the operative question is not whether [the complained of] conduct was actually unlawful, but whether Plaintiff held an objectively reasonable and good faith belief to that effect.”  . . .  A retaliation claimant therefore “does not need to oppose actual violations of Title VII in order to be protected from retaliation.” . . .

The dispute at the center of this case lies at the intersection of these two concepts. In alleging that [the employer] retaliated against her for opposing sexual assault, [The plaintiff] can succeed on her retaliation claim even if [the guard’s] conduct was not, as a legal or factual matter, sexual assault. But [she] must prove that she had a reasonable and good-faith belief that the conduct of which she complained was unlawful under Title VII. In other words, she must show that her belief that she was raped was reasonable and in good faith.

Importantly, the plaintiff was not required to prove that she was the victim of a sexual assault, but she was

required to demonstrate her reasonable and good-faith belief that [the guard’s] conduct violated Title VII. And [the employer]  was entitled to introduce evidence rebutting [her] alleged good-faith belief in the purported violative conduct she had reported, including evidence that [she] had consented to the sexual encounter, because such evidence was directly relevant to the reasonableness of [her] belief in whether Title VII prohibits that conduct. . . . 

 . . . . But our inquiry is not whether a rape violates Title VII (it does)—our inquiry is whether [she] had a good-faith belief that [he] raped her at work. Therefore, although we need not determine whether [he] raped [her], we must consider whether [she] “held an objectively reasonable and good faith belief” that she reported a legitimate rape. . . .

To be sure, we have noted that a lack of reasonable and good-faith belief may stem from “an unreasonable mistake of law.” Wasek, 682 F.3d at 469. And a retaliation plaintiff could make an unreasonable mistake of law by believing that conduct outside the scope of Title VII’s protections was conduct falling within the statute’s protections. But we have also stated that a plaintiff may fail to satisfy the reasonable and good-faith belief standard where “there are not facts from which a plaintiff could have reasonably believed that a violation occurred.” Id. And while we have yet explicitly to so hold, several of our sister circuits have made clear that Title VII retaliation plaintiffs do not engage in protected conduct when they make a false, fabricated, or malicious complaint of unlawful conduct because such plaintiffs do not reasonably and in good faith believe in the truth of their complaint.  . . . (emphasis added).

 . . . . The district court thus did not err in concluding that, in proving her retaliation claim to a jury, Graf was required to demonstrate that she reasonably and in good faith believed that, when she made her complaint against Ogle, she was reporting a rape. “Whether she actually held such a belief, a question of credibility,” was necessarily “left to [the] jury.” 

The Court agreed that propensity evidence must still be excluded as would reputational evidence.  What was relevant was her subjective belief as evidenced by her own actions with the security guard.

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.