By Patrick M. Watts
On June 22, 2010, the Deputy Administrator of the Wage and Hour Division of the Department of Labor issued Interpretation No. 21010-3, clarifying the definition of “son or daughter” pursuant to the Family Medical Leave Act (“Act”). The Act entitles employees to take family medical leave for up to 12 weeks after the birth of a son or daughter, the placement of a son or daughter due to adoption or foster care or to care for a son or daughter with serious health conditions. “Son or daughter” is defined as “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. . . .” The Act further defines in loco parentis as including all individuals responsible for the daily care and financial support of the child.
The Deputy Administrator concluded that an employee stands in loco parentis to a child if they intend to assume the daily care or financial support for the child. Further, the Deputy Administrator concluded that the “Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.” Consequently, employers should recognize that some employees may be considered “parents” even though a son or daughter has an existing relationship with a biological, adoptive, foster or step parent.
Saturday, June 26, 2010
Thursday, June 24, 2010
Ohio Supreme Court Rejects Ohio Civil Rights Commission’s Interpretation on Mandatory Pregnancy/Maternity Leave
By Lois A. Gruhin
In a long-awaited decision, the Ohio Supreme Court rejected the Ohio Civil Rights Commission’s (“OCRC”) attempt to require all employers with four or more employees to provide reasonable pregnancy and/or maternity leave regardless of the employee’s length of service. In McFee v. Nursing Care Management of America, Inc., 2010-Ohio-2744 (June 22, 2010), the Court held that, “[a]n employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination under R.C. Chapter 4112.”
Eight months into her employment, the plaintiff presented a doctor’s statement, indicating that the plaintiff could not work due to a pregnancy-related condition. The employer’s leave of absence policy contained a no-exception, minimum twelve-month employment eligibility requirement. The plaintiff left work, and the employer terminated her employment for taking an unauthorized leave. The plaintiff filed a discrimination charge with the OCRC, which ruled that the denial of pregnancy leave constituted gender discrimination. The common pleas court reversed the OCRC, but the Fifth District Court of Appeals reversed the common pleas court.
At issue were a statutory provision in R.C. Chapter 4112 and two provisions in an OCRC administrative regulation. R.C. Section 4112.02(B) requires that employers treat pregnant employees the same for employment purposes as employees who are not pregnant, and therefore, prohibits an employee’s discharge because of pregnancy or related condition. O.A.C. Rule 4112-5-05(G)(2) provides that, “[w]here termination of employment of an employee who is temporarily disabled due to pregnancy or related condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.” O.A.C. Rule 4112-5-05(G)(5) provides that women shall not be penalized in the conditions of their employment when they take time off for childbearing, if they are eligible to do so.
The Court first held that R.C. Chapter 4112 does not prohibit uniformly applied minimum-length-of-service requirements. The statutory requirement that pregnant employees be “treated the same” as non-pregnant employees “does not provide greater protections for pregnant employees than non-pregnant employees.” Since the employer’s length-of-service requirement treated all employees the same, the policy is “pregnancy blind.”
The Court then rejected the OCRC’s interpretation of its own administrative regulation. Harmonizing Rule 4112-5-05(G)(2) and (G)(5), the Court held that (G)(2) “must mean that when an employee is otherwise eligible for leave, the employer cannot lawfully terminate that employee for violating a policy that provides no leave or insufficient leave due to temporary disability due to pregnancy or a related condition.” (emphasis in original)
Finally, the Court held that the plaintiff could not prove gender discrimination in her termination. The parties agreed that the employer terminated the plaintiff’s employment because she took leave from work even though she was not eligible for it, and not because she had become pregnant.
This decision provides two important directives to Ohio employers. R.C. Chapter 4112 does not require employers to provide pregnancy/maternity leave when it provides no other leave or to waive or ignore minimum-length-of-service eligibility requirements for obtaining a leave of absence when an employee requests pregnancy/maternity leave. However, if an employer provides leave benefits and an employee meets all eligibility requirements (including length-of-service requirements), the employer must extend the leave benefits to include pregnancy/ maternity leave and cannot terminate an employee for attempting to take pregnancy/maternity leave under that policy.
In light of this decision, an employer should consult with legal counsel and review its leave of absence policies to ensure that such policies comply with Ohio’s anti-discrimination laws.
In a long-awaited decision, the Ohio Supreme Court rejected the Ohio Civil Rights Commission’s (“OCRC”) attempt to require all employers with four or more employees to provide reasonable pregnancy and/or maternity leave regardless of the employee’s length of service. In McFee v. Nursing Care Management of America, Inc., 2010-Ohio-2744 (June 22, 2010), the Court held that, “[a]n employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination under R.C. Chapter 4112.”
Eight months into her employment, the plaintiff presented a doctor’s statement, indicating that the plaintiff could not work due to a pregnancy-related condition. The employer’s leave of absence policy contained a no-exception, minimum twelve-month employment eligibility requirement. The plaintiff left work, and the employer terminated her employment for taking an unauthorized leave. The plaintiff filed a discrimination charge with the OCRC, which ruled that the denial of pregnancy leave constituted gender discrimination. The common pleas court reversed the OCRC, but the Fifth District Court of Appeals reversed the common pleas court.
At issue were a statutory provision in R.C. Chapter 4112 and two provisions in an OCRC administrative regulation. R.C. Section 4112.02(B) requires that employers treat pregnant employees the same for employment purposes as employees who are not pregnant, and therefore, prohibits an employee’s discharge because of pregnancy or related condition. O.A.C. Rule 4112-5-05(G)(2) provides that, “[w]here termination of employment of an employee who is temporarily disabled due to pregnancy or related condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.” O.A.C. Rule 4112-5-05(G)(5) provides that women shall not be penalized in the conditions of their employment when they take time off for childbearing, if they are eligible to do so.
The Court first held that R.C. Chapter 4112 does not prohibit uniformly applied minimum-length-of-service requirements. The statutory requirement that pregnant employees be “treated the same” as non-pregnant employees “does not provide greater protections for pregnant employees than non-pregnant employees.” Since the employer’s length-of-service requirement treated all employees the same, the policy is “pregnancy blind.”
The Court then rejected the OCRC’s interpretation of its own administrative regulation. Harmonizing Rule 4112-5-05(G)(2) and (G)(5), the Court held that (G)(2) “must mean that when an employee is otherwise eligible for leave, the employer cannot lawfully terminate that employee for violating a policy that provides no leave or insufficient leave due to temporary disability due to pregnancy or a related condition.” (emphasis in original)
Finally, the Court held that the plaintiff could not prove gender discrimination in her termination. The parties agreed that the employer terminated the plaintiff’s employment because she took leave from work even though she was not eligible for it, and not because she had become pregnant.
This decision provides two important directives to Ohio employers. R.C. Chapter 4112 does not require employers to provide pregnancy/maternity leave when it provides no other leave or to waive or ignore minimum-length-of-service eligibility requirements for obtaining a leave of absence when an employee requests pregnancy/maternity leave. However, if an employer provides leave benefits and an employee meets all eligibility requirements (including length-of-service requirements), the employer must extend the leave benefits to include pregnancy/ maternity leave and cannot terminate an employee for attempting to take pregnancy/maternity leave under that policy.
In light of this decision, an employer should consult with legal counsel and review its leave of absence policies to ensure that such policies comply with Ohio’s anti-discrimination laws.
Friday, June 11, 2010
Ohio Supreme Court Holds That Insurance Policy Can Cover Attorney Fees Awarded as a Result of Punitive Damages
*By Stephen S. Zashin, Esq.
Generally, Ohio public policy prohibits insurance companies from covering punitive damage awards. Until now, this prohibition presumably included attorney fees awarded solely as a result of a punitive damage award. This month, the Ohio Supreme Court addressed whether an insurance policy provided coverage for attorneys’ fees awarded due to a punitive damage award.
In Neal-Pettit v. Lahman, No. 2009-0325, 2010-Ohio-1829 (May 4, 2010), the Ohio Supreme Court refuted that presumption of non-coverage of attorney fees. The 4-2 majority held that, “Attorney fees are distinct from punitive damages, and public policy does not prevent an insurance company from covering attorney fees on behalf of an insured when they are awarded solely as a result of an award for punitive damages.”
This issue arose from a personal injury automobile lawsuit. The accident involved an intoxicated driver who fled the scene of an earlier collision. The jury awarded compensatory and punitive damages. The jury also awarded the plaintiff attorneys’ fees because the jury found that the driver acted with malice. The insurer denied payment of both punitive damages and attorneys’ fees.
The insurance policy did not mention coverage for attorney fees. The policy included language concerning “damages” for “bodily injury.” Although “bodily injury” was defined, “damages” was not. The policy also excluded coverage of “punitive or exemplary damages, fines or penalties.”
The insurer contended that: (1) attorney fees did not constitute “damages because of bodily injury”; (2) the policy’s exclusion of “punitive or exemplary damages, fines or penalties” excluded coverage of attorney fees; and (3) Ohio public policy precluded coverage of an attorneys’ fee award made in conjunction with a punitive damage award. The Court rejected all three arguments.
On the issue of inclusion, the Court phrased the controlling question as “whether the attorney fees awarded are damages that [the defendant] is legally obligated to pay because of the bodily injury sustained by [the plaintiff].” The Court held that, “although an award of attorney fees may stem from an award of punitive damages, the attorney-fee award itself is not an element of the punitive-damages award.” The Court added that, “The language of the policy does not limit coverage solely because of bodily injury.” Thus, “insofar as the parties have offered their own separate interpretations of the language of the policy, both of them plausible, we must resolve any uncertainty in favor of the insured.”
On the issue of exclusion, the Court held that “the exclusion does not refer in any way to attorney fees or litigation expenses. . . . Therefore, the term ‘punitive or exemplary damages’ does not clearly and unambiguously encompass an award of attorney fees.” The Court also noted that the insurer never argued that attorney fees are a “fine” or “penalty” under the exclusions or cited any cases to that effect. Thus, whether attorney fees constitute such an exclusion remained unresolved.
Finally, on the issue of public policy, the Court explained that the language of the statutory prohibition of insurance coverage extends only to punitive and exemplary damages, and not attorney fees. Thus, the Court declined to add to the prohibition what the General Assembly declined to do. The Court also commented that, “Our holding will not encourage wrongful behavior merely because it permits insurers to cover attorney fees for which tortfeasors become liable. The tortfeasors remain liable for punitive damages awarded for their malicious actions, and these punitive damages remain uninsurable.”
The impact of the Ohio Supreme Court’s holding is clear: an insurance policy covers attorneys’ fees unless it expressly excludes them. Equally clear is that while Ohio public policy permits coverage of attorneys’ fees, it also does not require coverage. Also, the decision reinforces the Ohio Supreme Court’s position that punitive damages are uninsurable in the state of Ohio.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in all aspects of workplace law, including the defense of employment practices liability claims. For more information about Ohio employment law, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
Generally, Ohio public policy prohibits insurance companies from covering punitive damage awards. Until now, this prohibition presumably included attorney fees awarded solely as a result of a punitive damage award. This month, the Ohio Supreme Court addressed whether an insurance policy provided coverage for attorneys’ fees awarded due to a punitive damage award.
In Neal-Pettit v. Lahman, No. 2009-0325, 2010-Ohio-1829 (May 4, 2010), the Ohio Supreme Court refuted that presumption of non-coverage of attorney fees. The 4-2 majority held that, “Attorney fees are distinct from punitive damages, and public policy does not prevent an insurance company from covering attorney fees on behalf of an insured when they are awarded solely as a result of an award for punitive damages.”
This issue arose from a personal injury automobile lawsuit. The accident involved an intoxicated driver who fled the scene of an earlier collision. The jury awarded compensatory and punitive damages. The jury also awarded the plaintiff attorneys’ fees because the jury found that the driver acted with malice. The insurer denied payment of both punitive damages and attorneys’ fees.
The insurance policy did not mention coverage for attorney fees. The policy included language concerning “damages” for “bodily injury.” Although “bodily injury” was defined, “damages” was not. The policy also excluded coverage of “punitive or exemplary damages, fines or penalties.”
The insurer contended that: (1) attorney fees did not constitute “damages because of bodily injury”; (2) the policy’s exclusion of “punitive or exemplary damages, fines or penalties” excluded coverage of attorney fees; and (3) Ohio public policy precluded coverage of an attorneys’ fee award made in conjunction with a punitive damage award. The Court rejected all three arguments.
On the issue of inclusion, the Court phrased the controlling question as “whether the attorney fees awarded are damages that [the defendant] is legally obligated to pay because of the bodily injury sustained by [the plaintiff].” The Court held that, “although an award of attorney fees may stem from an award of punitive damages, the attorney-fee award itself is not an element of the punitive-damages award.” The Court added that, “The language of the policy does not limit coverage solely because of bodily injury.” Thus, “insofar as the parties have offered their own separate interpretations of the language of the policy, both of them plausible, we must resolve any uncertainty in favor of the insured.”
On the issue of exclusion, the Court held that “the exclusion does not refer in any way to attorney fees or litigation expenses. . . . Therefore, the term ‘punitive or exemplary damages’ does not clearly and unambiguously encompass an award of attorney fees.” The Court also noted that the insurer never argued that attorney fees are a “fine” or “penalty” under the exclusions or cited any cases to that effect. Thus, whether attorney fees constitute such an exclusion remained unresolved.
Finally, on the issue of public policy, the Court explained that the language of the statutory prohibition of insurance coverage extends only to punitive and exemplary damages, and not attorney fees. Thus, the Court declined to add to the prohibition what the General Assembly declined to do. The Court also commented that, “Our holding will not encourage wrongful behavior merely because it permits insurers to cover attorney fees for which tortfeasors become liable. The tortfeasors remain liable for punitive damages awarded for their malicious actions, and these punitive damages remain uninsurable.”
The impact of the Ohio Supreme Court’s holding is clear: an insurance policy covers attorneys’ fees unless it expressly excludes them. Equally clear is that while Ohio public policy permits coverage of attorneys’ fees, it also does not require coverage. Also, the decision reinforces the Ohio Supreme Court’s position that punitive damages are uninsurable in the state of Ohio.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in all aspects of workplace law, including the defense of employment practices liability claims. For more information about Ohio employment law, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
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