Joshua D. Bortnick

Of Counsel St. Louis

Josh Bortnick provides labor and employment counseling and litigation defense exclusively to employers. Representing a wide range of companies since 2005, Mr. Bortnick’s practice includes:

  • Litigation of harassment, discrimination, and retaliation claims under Title VII, the ADA, the ADEA, the MHRA, and IHRA
  • Non-competition and non-solicitation agreements
  • Wage and hour matters

Through his years of practice, Mr. Bortnick has developed significant experience in:

  • Federal, Missouri, and Illinois State Court Litigation
  • Missouri Prevailing Wage matters
  • Public accommodation claims under the ADA and MHRA
  • Charges pending with the National Labor Relations Board
  • Counseling employers regarding drug testing
  • Reductions in Force

Mr. Bortnick counsels employers in all daily matters related to employees, including payroll issues, termination, discipline, hiring, creation of employment handbooks and policies, and employee training.  Further, Mr. Bortnick works with employers in developing policies, training, reductions in force, and daily matters regarding the FMLA and ADA.  He counsels and represents clients in the following industries:

  • Healthcare
  • Transportation
  • Construction
  • Maintenance
  • Education
  • Janitorial
  • Mining
  • Home Furnishings


Experience

Mr. Bortnick has significant experience litigating various types of claims through all stages of litigation, including trial. His experience in obtaining favorable results for clients includes the following:

  • On behalf of a national transportation client, Mr. Bortnick obtained both a Temporary Restraining Order and Permanent Restraining Order against an employee who made a threat of violence.  While the witnesses were reluctant to testify against their co-worker, Mr. Bortnick was able to counsel the employee witnesses, made them understand the importance of their testimony, and provide them with defenses to the threats they were receiving from other co-workers.
  • Mr. Bortnick was able to obtain affirmation from the Eighth Circuit Court of Appeals regarding summary judgment he was granted for a national manufacturing client on claims of interference with the former employee’s rights under the Family Medical Leave Act. The plaintiff claimed that she was involuntarily placed on Family Medical Leave Act leave when she did not suffer from a serious health condition. Mr. Bortnick was able to show both courts that because the employee admitted to not suffering from a serious health condition, she was not covered by the Family Medical Leave Act, thus she had no right to the benefits provided from the Act.
  • Mr. Bortnick obtained summary judgment against claims of retaliation under the Family Medical Leave Act brought by a former employee of an international airline client. The plaintiff voluntarily resigned during a broad-scale investigation of ticketing infractions that resulted in the discharge of several of her co-workers. Mr. Bortnick convinced the federal court the plaintiff suffered no materially adverse action and the reason for recommending her discharge was not related to any discrimination.
  • On behalf of a national hotel and casino chain, Mr. Bortnick obtained dismissal of several labor charges regarding the dismissal and discipline of employees said to be involved in efforts to unionize the local workforce. Through detailed descriptions of each offense after a thorough investigation, Mr. Bortnick was able to show each act of discharge and discipline had absolutely no connection with any protected conduct. These charges were especially important given the ongoing organizing efforts of the local union.
  • Mr. Bortnick has represented a national service industry client through multiple lawsuits alleging violations of the Missouri Prevailing Wage Act brought by over thirty plaintiffs. Through detailed depositions and his deep understanding of the Act, Mr. Bortnick was able to limit the exposure faced by the client and obtain favorable settlements for the client. Through these lawsuits, Mr. Bortnick has become an expert in Missouri Prevailing Wage claims and has counseled several clients in the service and construction industries.
  • Mr. Bortnick was able to obtain dismissal of all individual defendants, remove a state court lawsuit to the more favorable federal court, and obtain dismissal of many of the plaintiff’s claims for a national manufacturing client. The plaintiff brought claims of age, race and gender discrimination, as well as retaliation and harassment against both his former employer and several members of management. First, Mr. Bortnick argued the claims against the individual defendants had not been properly exhausted, allowing for removal of the lawsuit to federal court. Once in federal court, Mr. Bortnick argued the claims of discrimination based on gender and age, as well as the claim of harassment, were not properly exhausted and must be dismissed. By greatly decreasing the plaintiff’s claims, Mr. Bortnick was able to obtain a very favorable settlement, even though allegations were made of a noose being placed in the workplace.
  • On behalf of a health insurance company, Mr. Bortnick received summary judgment on the plaintiff’s claims of disability and age discrimination. The plaintiff was discharged due to a reduction-in-force needed for economic reasons. Mr. Bortnick was able to show the court how the decision to discharge the plaintiff was made before she was diagnosed with cancer and any “regarded as” claim failed because the plaintiff lacked evidence that the condition was perceived by anyone, including herself, as anything more than a transitory and minor condition. Further, the plaintiff’s age claim failed because Mr. Bortnick provided strong evidence to show how the comparable employees were of greater need to the client than the plaintiff.
  • Mr. Bortnick successfully represented a municipality who had been accused of unlawful retaliation in connection with a political election. Mr. Bortnick was able to get summary judgment at the federal district court level. Mr. Bortnick was also able to have summary judgment affirmed by the Eighth Circuit Court of Appeals.  
  • Mr. Bortnick also completed the successful defense of a large pharmaceutical client who had been accused of age discrimination and retaliation. The plaintiff had actually been discharged due to inappropriate notes taken during a training seminar and given to her supervisor. Even though the discharge came over six months after the notes were first discovered, Mr. Bortnick was able to receive summary judgment for his client at the federal district court level.
  • Mr. Bortnick successfully defended a large hospital client at the Missouri Court of Appeals. The case was based on an employee of a contracting medical company not having her employment contract renewed. After several phases of briefing, due to important Missouri Supreme Court holdings, the Court of Appeals affirmed the lower court’s dismissal of the case.
  • On behalf of an international telecommunications client, Mr. Bortnick obtained a full order of dismissal on a plaintiff’s disability claims under both federal and state law. Mr. Bortnick was able to show how both claims were untimely under the applicable statutes.    

Mr. Bortnick has worked extensively with clients with national operations, and is well-versed on multi-state (and even 50-state) operations and issues regarding policy needs, including drug testing policies. He also regularly advises clients on issues relating to restrictive covenants, payroll issues, and harassment investigations.

Mr. Bortnick is a member of the Healthcare, Drug Testing and Disability Access practice groups.

Professional Activities and Speeches

Professional Activities:

  • Missouri Bar Association
  • Illinois Bar Association
  • March of Dimes

Speeches:

  • Missouri Chamber of Commerce - ''Developing and Implementing ADA and FMLA Policies and Procedures to Keep Compliant'' - St. Charles - November 29, 2016
  • Southern Illinois Professional Management Associate - ''Developing and Implementing ADA and FMLA Policies and Procedures to Keep Compliant'' - Carterville - November 14, 2016
  • Institute of Management Accountants - ''The Final Overtime Regulations and The Exemptions to the Fair Labor Standards Act'' - St. Louis - September 20, 2016
  • Ogletree Deakins Seminar - ''ADA Title III Accommodations and Related MHRA Provisions'' - St. Louis - August 24, 2016
  • Lorman - ''Return-to-Work Compliance When Jobs Are Gone'' - St. Louis - July 20, 2016
  • Ogletree Deakins Seminar - ''Religious Accommodation in the Age of Abercrombie'' - St. Louis - September 17, 2015
  • Ogletree Deakins Seminar - ''Recent Developments and Hot-Button Legal Issues in Unfair Competition and Trade Secret Law'' - St. Louis - September 05, 2014
  • National Human Resources Association: Invest in Your HR Law Knowledge - ''Legal Update” and “Harassment Investigations on Trial'' - St. Louis - May 22, 2014
  • Human Resource Management Association of Greater St. Louis: Legal Roundtable - ''Hiring Do’s and Don’ts – Social Media Issues in Hiring'' - St. Louis - March 19, 2014
  • Ogletree Deakins Seminar - ''FMLA – What Do I Do Now?'' - St. Louis - September 26, 2013
  • AAIM Employment Law Certificate Series - ''Special Employment Issues: Privacy, Defamation and Company Security'' - St. Louis - September 24, 2013
  • Lorman: HR Compliance Roadmap: From Hiring through Termination in 2013 - ''The Right Way to Get Good Employees and Manage Them'' - June 20, 2013
  • Human Resource Management Association of Greater St. Louis: Annual Legal Update - ''Using Social Media to Screen Applicants and Use of Social Media by Employees” – Social Media Issues in Hiring'' - St. Louis - March 20, 2013
  • AAIM Employment Law Certificate Series - ''Preparing an Effective Handbook'' - St. Louis - April 18, 2012
  • Lorman webinar - ''Handling Claims for Injuries Sustained While Using Mobile Devices'' - December 20, 2011
  • AAIM: St. Charles Human Resource Executive Roundtable - ''When Johnny (and Suzie) Com Marching Home Again – A Refresher on USERRA and the Military Caregiver Leave Provisions of the FMLA'' - St. Charles - December 14, 2011

Published Works

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Media Quotes

2012 - American Bar Association - "ABA Midwinter Meeting Report of the Subcommittee on the Family and Medical Leave Act"

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