Answers Posted By Michael Fortney

Answer to I work on a remodeling crew. We go into private residences to work. I left work yesterday because of a smoking customer. What are my rights here? Do I have to breath smoke just because of my job? Or does my employer have to provide me with a smoke free wo

In the 2006 election, Ohio voters passed Issue 5, a statute designed to prevent smoking in public places and places of employment. Issue 5, the Smoke-Free Workplace Act, turned into Section 3794 of the Ohio Revised Code.

ORC § 3794 prohibits smoking in public places and places of employment. A private residence is not a public place. Section 3794 thus applies to you only if the residence in which you work is also a place of employment.

ORC § 3794.01(C) defines "place of employment" as any "enclosed area under the direct or indirect control of an employer that the employer's employees use for work or any other purpose, including but not limited to, offices, meeting rooms, sales, production and storage areas, restrooms, stairways, hallways, warehouses, garages, and vehicles." Using this definition alone, a case could be made that your employer exercises indirect control over the enclosed area when remodeling, making it appear to be a place of employment.

However, ORC § 3794.03(A) specifically states that the Smoke-Free Workplace Act does not regulate private residences unless they operate as a daycare or adult care facility for compensation, or as a business. Thus, it appears that the owner of the residence is entitled to smoke in her home while you and your fellow employees are working in the home.
Although Ohio’s Smoke Free Workplace Act does not protect you from a resident’s smoke, the federal Americans with Disabilities Act and Ohio's Civil Rights Act both require employers to reasonably accommodate a disability. Generally speaking, a disability under these laws means a physical or mental impairment that substantially limits a major life activity. In your case, if your allergies substantially limit your major life function of breathing, you may have a disability that could require your employer to accommodate your inability to work in a room where a resident smokes.

I cannot answer here whether your allergy would qualify you for protection under the disability anti-discrimination laws, or whether your employer would have to accommodate your allergies. Those answers depend on specific facts that we would obtain through an individual consultation in an attorney/client setting. By way of general information, though, Ohio's Civil Rights Act covers employer with four or more employees, while the Americans with Disabilities Act only covers employer who employ 15 or more people.

posted Jul 8, 2015 1:10 PM [EST]

Answer to If an employer sends an employee to training are they required to pay for travel time

The FLSA requires that any hours worked by an employee must be paid to the employee by the employer. Your question asks whether attendance at training sessions and travel time to those training sessions are considered working time.

Employers must treat attendance at training sessions as working time unless the following four criteria are met:

1. Attendance is outside the employee’s regular working hours;
2. Attendance is voluntary;
3. The training program is not directly related to the employee’s job; and
4. The employee does not perform any productive work while in attendance.

Additionally, employers must treat travel time for a special one-day assignment, such as attendance at a training session, as working time. The only caveat with this is that the employee’s typical travel from home to work still does not count as working time. This means if you live in Pueblo, but you work in Colorado Springs, and you have to go to Denver for a day, only the time spent traveling between your employer in Colorado Springs and the training session in Denver would be considered working time.

Since you were required to attend the training session, the training was involuntary and you must be paid for it. Additionally, you are likely owed some compensation for the time spent on your 55 mile journey to Denver to attend the training session, unless of course you live in Denver and didn't spend any time commuting there.

posted Jan 15, 2015 2:48 PM [EST]

Answer to I never got to use my vacation time before they terminated me. How can I get my two weeks pay I accrued?

Pursuant to Ohio law, employees are entitled to their unused vacation time upon termination unless the employer has a clear personnel policy (usually an employee handbook) detailing situations where unused vacation time is forfeited.

Your situation depends upon whether your employer uses a handbook or other written policies, and whether those policies discuss the forfeiture of vacation time.

posted Dec 29, 2014 2:19 PM [EST]

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