The United States Department of Labor recently published the new FMLA
regulations. The new FMLA regulations will take effect on January 16,
2009. In conjunction with the implementation of the new regulations,
the Department of Labor recently published a new FMLA poster on its
web-site which employers must display in place of the current FMLA
poster. All covered employers must display the poster beginning on
January 16, 2009. The following is a link to the new poster:
http://www.dol.gov/esa/whd/fmla/finalrule/FMLAPoster.pdf
As a reminder, Zashin & Rich Co., L.P.A. will hold a free
seminar addressing the new FMLA regulations. While many sessions have
closed, there are still a few available seats at a fourth session
scheduled for January 12, 2009, beginning at 9:30 a.m. at the offices of
Zashin & Rich.
To receive more information, please contact Heather Hatfield (hlh@zrlaw.com) at 216.696.4441.
Monday, December 15, 2008
Friday, December 12, 2008
Public Employers Must Use Reasonable Efforts To Recover Improperly Deleted E-mails
*By George S. Crisci, Esq.*
In State, ex rel. Toledo Blade Co. v. Seneca County Board of Commissioners, 2008-Ohio-6253 (Dec. 9, 2008), the Ohio Supreme Court addressed what it called a “novel public records claim:” a request to recover and inspect improperly-deleted e-mails. The Court held that the public body had to “make reasonable efforts to recover, at its expense, the requested deleted e-mails and to make them promptly available for inspection.” The Court added, however, that the public body did not have to recover e-mails properly deleted under Ohio’s Public Records Act and the public body’s records retention policy.
In this case, a newspaper made a public records request for all e-mails among County Commissioners. The newspaper suspected that the Commissioners had conducted improper private discussions and deliberations on approving a plan via e-mail communications.
In its response, the public body did not produce any e-mails from one Commissioner for a critical seven-month period, did not produce any e-mails from the inbox or sent-messages folder from another Commissioner (who admitted that he only had begun saving e-mails involving County business), did not provide any e-mails for an entire year from a third Commissioner and provided e-mails from a fourth Commissioner for which there were “substantial gaps” between the dates of e-mails. The public body later found and offered to provide additional e-mails that it discovered in a previously unknown hidden archive on one Commissioner’s computer. The public body also explained its methods for retrieving e-mails from the computers’ hard drives and indicated that retrieval of deleted e-mails would require “very expensive forensic tools.”
The County’s records retention and disposition schedule required that it retain e-mails having a “significant administrative, fiscal, legal, or historic value.” However, the policy permitted the deletion of e-mails that had no such value. The policy granted the discretion to the individual computer user.
Dissatisfied with the public body’s response, the newspaper filed a mandamus action before the Ohio Supreme Court. The newspaper demanded: (1) responsive public records available to [the public body] promptly and without delay and to do so at all time for future requests, (2) take the necessary steps to recover the content of all requested records that has been deleted and report on the steps taken, and (3) make each of the recovered e-mails promptly available for inspection and copying.”
The Court granted some of the newspaper’s demands and held that the public body had to take reasonable steps to recover, at its own expense, unlawfully deleted e-mails. The Court articulated the following “appropriate factors for determining when a public office has a duty . . . to recover the content of deleted e-mails and provide access to them:”
This decision reinforces what public bodies already should do: (1) have a records retention and disposition policy that includes the retention of electronic data; (2) ensure that all officials and employees are aware of, and comply with, the records retention and disposition policy; and (3) understand that record retention and disposition policies also apply to e-mails. Future violations could have serious financial consequences for the public body, not only for the cost of a forensic recovery of deleted e-mails, but the potential civil fines from unlawfully destroying public records and engaging in spoliation of evidence.
*George S. Crisci is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in all aspects of public sector labor, employment and public records issues. For more information about public records, please contact George at 216.696.4441 or gsc@zrlaw.com.
In State, ex rel. Toledo Blade Co. v. Seneca County Board of Commissioners, 2008-Ohio-6253 (Dec. 9, 2008), the Ohio Supreme Court addressed what it called a “novel public records claim:” a request to recover and inspect improperly-deleted e-mails. The Court held that the public body had to “make reasonable efforts to recover, at its expense, the requested deleted e-mails and to make them promptly available for inspection.” The Court added, however, that the public body did not have to recover e-mails properly deleted under Ohio’s Public Records Act and the public body’s records retention policy.
In this case, a newspaper made a public records request for all e-mails among County Commissioners. The newspaper suspected that the Commissioners had conducted improper private discussions and deliberations on approving a plan via e-mail communications.
In its response, the public body did not produce any e-mails from one Commissioner for a critical seven-month period, did not produce any e-mails from the inbox or sent-messages folder from another Commissioner (who admitted that he only had begun saving e-mails involving County business), did not provide any e-mails for an entire year from a third Commissioner and provided e-mails from a fourth Commissioner for which there were “substantial gaps” between the dates of e-mails. The public body later found and offered to provide additional e-mails that it discovered in a previously unknown hidden archive on one Commissioner’s computer. The public body also explained its methods for retrieving e-mails from the computers’ hard drives and indicated that retrieval of deleted e-mails would require “very expensive forensic tools.”
The County’s records retention and disposition schedule required that it retain e-mails having a “significant administrative, fiscal, legal, or historic value.” However, the policy permitted the deletion of e-mails that had no such value. The policy granted the discretion to the individual computer user.
Dissatisfied with the public body’s response, the newspaper filed a mandamus action before the Ohio Supreme Court. The newspaper demanded: (1) responsive public records available to [the public body] promptly and without delay and to do so at all time for future requests, (2) take the necessary steps to recover the content of all requested records that has been deleted and report on the steps taken, and (3) make each of the recovered e-mails promptly available for inspection and copying.”
The Court granted some of the newspaper’s demands and held that the public body had to take reasonable steps to recover, at its own expense, unlawfully deleted e-mails. The Court articulated the following “appropriate factors for determining when a public office has a duty . . . to recover the content of deleted e-mails and provide access to them:”
(1) Were the deleted e-mails destroyed?
Although acknowledging that “[t]here is no duty ... to create records that no longer exist,” the Court noted that “the mere deletion of some of the e-mails by the commissioners did not necessarily destroy them.” Rather, [a]s long as these e-mails are on the hard drives of the commissioners’ computers, they do not lose their status as public records."
(2) Were the e-mails deleted in violation of the County’s records retention and disposition policy?
The Court held that newspaper had to make a prima facie showing of a violation, which the newspaper satisfied. The “substantial gaps in the responsive e-mails . . . . raise the reasonable inference that the e-mails were deleted in violation of the county’s records retention and disposition schedule; it defies logic that all public-office e-mail during these lengthy periods lacked significant administrative, fiscal, legal or historic value.” The Commissioners failed to submit any affidavits specifying that the deleted e-mails did not meet the retention requirements. The public body unsuccessfully argued that no violation occurred because the policy left it up to the individual computer user to determine whether to save an e-mail. The Court held that a construction of the Public Records Act “that vests individual government employees with unreviewable authority to delete work-related e-mails is unreasonable because it would authorize the unfettered destruction of public records.” The Court also rejected the public body’s remaining argument –that the newspaper already received identical copies of the deleted e-mails.
(3) Is there evidence that recovery of the deleted e-mails may be successful?
The newspaper “introduced sufficient evidence [primarily through an affidavit of a computer expert] that recovery of the deleted e-mails may be successful. That is all that is required here, when the evidence raises the inference that the commissioners deleted e-mails in contravention of an applicable records retention and disposition schedule.”
(4) The Court may order that the public body attempt recovery even if the cost of recovery services may be expensive.
The Court reiterated long-standing precedent that complaints of too much time, expense or disruption are not excuses “to evade the public’s right to inspect and obtain a copy of the public records within a reasonable time.” The Court noted that “insofar as the e-mails still exist on the commissioners’ computers, they remain public records, and the board has a duty to organize and maintain them in a manner in which they can be made available for inspection and copying.” Finally, the public body failed to support its claim of a potential expenditure of “tens of thousands of dollars.”
(5) Who should bear the expense of a forensic analysis?The Court stressed, however, that its ruling applied only to unlawfully deleted e-mails. “[W]e emphasize that in cases in which public records, including e-mails, are properly disposed of in accordance with a duly adopted records-retention policy, there is no entitlement to these records under the Public Records Act.” As further consolation, the public body did not have to pay the newspaper’s attorneys’ fees because “[o]n the novel issue of the recovery of deleted e-mails, the board’s argument was not unreasonable.”
The Court first rejected the argument that the newspaper should bear the cost as a copying cost, because the newspaper asked only to “inspect” the e-mails and did not ask for copies. The Court then conducted a balancing test to determine who should bear the cost, concluding that “the factors that support having the board bear the expense of the forensic analysis to recover the deleted e-mails outweigh the speculative factors that support having the Blade absorb the cost.” The Court added, however, that “the board’s recovery efforts need only be reasonable, not Herculean, consistent with a public office’s general duties under the Public Records Act.”
This decision reinforces what public bodies already should do: (1) have a records retention and disposition policy that includes the retention of electronic data; (2) ensure that all officials and employees are aware of, and comply with, the records retention and disposition policy; and (3) understand that record retention and disposition policies also apply to e-mails. Future violations could have serious financial consequences for the public body, not only for the cost of a forensic recovery of deleted e-mails, but the potential civil fines from unlawfully destroying public records and engaging in spoliation of evidence.
*George S. Crisci is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in all aspects of public sector labor, employment and public records issues. For more information about public records, please contact George at 216.696.4441 or gsc@zrlaw.com.
Thursday, November 27, 2008
Judge Invalidates BWC Group Rating Program - How a Typo Cost Ohio Employers Millions of Dollars
*By Steve P. Dlott
Last week, a Cuyahoga County Common Pleas Judge struck down the BWC group rating program. In his decision, the Judge found that the BWC unlawfully enacted the group rating program. As a result, the Court enjoined the BWC from enacting the group rating program effective July 1, 2009.
Buried in the avalanche of news about the Judge’s decision was the actual legal basis underlying that decision. That legal basis serves as a powerful lesson to all Ohio employers.
Not surprisingly, media groups have portrayed the decision as an attempt to correct the devastating inequities in the premium rating system itself. Employers with stellar claims’ histories have seen their premiums skyrocket because of one bad claim. Clearly, the system is fundamentally unfair and punitive.
However, while the Judge’s decision touches on the program’s inequities, those were not the basis for his decision. Rather, the underpinning of the decision rests upon the statutory language itself.
The statute that authorizes the BWC to create a group rating plan states that the plan must be a “retrospective rating plan.” However, as the disqualified group-rated employers who initiated the lawsuit pointed out, the BWC’s group rating plan as implemented is prospective, not “retrospective.” In response, the BWC argued that “retrospective” language was actually a typo and that the legislature intended language to read “prospective.”
The Judge invoked a well-known legal principle, noting that if the language of a statute is clear on its face, the courts must apply it as written. Here, the Judge concluded the statute’s language is clear: it says “retrospective.” Accordingly, the Judge found he had no choice but to enforce the statute as written. Since the group rating program as implemented by the BWC is prospective and not retrospective as the statute requires, the group rating plan is unlawful. With this one decision, the Judge invalidated the BWC’s group rating program and affected thousands of Ohio employers.
While the BWC has not yet commented on its intentions, it is likely that the BWC will appeal the decision. It is also likely that the BWC will request a stay of the Court’s decision pending the appeal so that the group rating program can proceed as planned on July 1, 2009.
Zashin & Rich will continue to keep employers informed as more information about this important decision becomes known.
Last week, a Cuyahoga County Common Pleas Judge struck down the BWC group rating program. In his decision, the Judge found that the BWC unlawfully enacted the group rating program. As a result, the Court enjoined the BWC from enacting the group rating program effective July 1, 2009.
Buried in the avalanche of news about the Judge’s decision was the actual legal basis underlying that decision. That legal basis serves as a powerful lesson to all Ohio employers.
Not surprisingly, media groups have portrayed the decision as an attempt to correct the devastating inequities in the premium rating system itself. Employers with stellar claims’ histories have seen their premiums skyrocket because of one bad claim. Clearly, the system is fundamentally unfair and punitive.
However, while the Judge’s decision touches on the program’s inequities, those were not the basis for his decision. Rather, the underpinning of the decision rests upon the statutory language itself.
The statute that authorizes the BWC to create a group rating plan states that the plan must be a “retrospective rating plan.” However, as the disqualified group-rated employers who initiated the lawsuit pointed out, the BWC’s group rating plan as implemented is prospective, not “retrospective.” In response, the BWC argued that “retrospective” language was actually a typo and that the legislature intended language to read “prospective.”
The Judge invoked a well-known legal principle, noting that if the language of a statute is clear on its face, the courts must apply it as written. Here, the Judge concluded the statute’s language is clear: it says “retrospective.” Accordingly, the Judge found he had no choice but to enforce the statute as written. Since the group rating program as implemented by the BWC is prospective and not retrospective as the statute requires, the group rating plan is unlawful. With this one decision, the Judge invalidated the BWC’s group rating program and affected thousands of Ohio employers.
While the BWC has not yet commented on its intentions, it is likely that the BWC will appeal the decision. It is also likely that the BWC will request a stay of the Court’s decision pending the appeal so that the group rating program can proceed as planned on July 1, 2009.
Zashin & Rich will continue to keep employers informed as more information about this important decision becomes known.
Wednesday, November 19, 2008
NEW FMLA REGULATIONS TAKE EFFECT JANUARY 16, 2009
The United States Department of Labor published the new FMLA regulations
in the Federal Register today. In 2006, the Department of Labor began a
process to revise the current FMLA regulations. The new FMLA
regulations are available on the Department of Labor’s web-site and will take effect on January 16, 2009. The new FMLA regulations include the following additions and changes:
- additional provisions regarding military caregiver leave;
- additional provisions regarding leave for qualifying exigencies for
families of national guard and reserve members;
- revised provisions regarding wavier of FMLA rights;
- revised provisions regarding the meaning of serious health condition;
- revised provisions regarding whether light duty counts as FMLA leave;
- revised provisions regarding perfect attendance bonuses;
- revised provisions regarding employer and employee notice obligations; and,
- revised provisions and recommended forms regarding the medical
certification process.
The free seminar (now 3 sessions
available due to popular demand!) will take place at the offices of
Zashin & Rich on January 9, 2009.
Session 1: 10:00 am - Noon (Lunch provided after seminar at noon.)
Free Lunch: Noon
Session 2: 12:30 - 2:30 pm (Lunch provided before seminar at noon.)
Session 3: 3:00 - 5:00 pm (Hors d'oeuvres and cocktails to follow.)
Two standard CLE credits have been applied for. Limited seating is available.
Session 1: 10:00 am - Noon (Lunch provided after seminar at noon.)
Free Lunch: Noon
Session 2: 12:30 - 2:30 pm (Lunch provided before seminar at noon.)
Session 3: 3:00 - 5:00 pm (Hors d'oeuvres and cocktails to follow.)
Two standard CLE credits have been applied for. Limited seating is available.
To make a reservation, or to receive more information, please contact Heather Hatfield (hlh@zrlaw.com) at 216.696.4441.
Thursday, November 13, 2008
Check Please? The Employee “Free” Choice Act and More
The Presidential and Congressional elections will almost certainly
result in a dramatic shift away from relatively employer-friendly
national labor policies that have existed for nearly a decade. What
impact will this have for employers?
The labor unions that supported President-Elect Obama and the congressional Democrats will expect to see their signature issues placed at the top of the new administration’s legislative agenda. That likely means passage of some version of the Employee Free Choice Act (“EFCA”) and the lesser-known Re-Empowerment of Skilled and Professional Employees and Construction Trades Act ("RESPECT"). Enactment of these two proposed pieces of legislation will alter radically both the balance of strength between employers and unions and the ability of employers to supervise their workplaces effectively.
EFCA has four primary goals: (1) to allow unions to organize employees (without the employer’s knowledge, much less an opportunity to express its opposing viewpoint) through card checks and eliminate secret-ballot elections; (2) to force employers to accept unreasonable bargaining demands from unions by compelling employer participation in binding interest arbitration of all unresolved issues; (3) to order employers to abide by the decisions of an outside arbitrator who does not have to accept responsibility for a bad decision; and, (4) to mandate employer payment of back pay, liquidated damages and potentially significant fines where an employer has violated employee rights to unionize.
The U.S. House of Representatives passed the EFCA in 2007. However, a Senate filibuster backed up by a threatened presidential veto prevented the passage of the bill. Under the incoming presidential administration, a veto is unlikely and, in light of an increased Democratic Senate majority, the likelihood of a successful filibuster is highly uncertain.
RESPECT will amend dramatically the nearly 60 year old statutory definition of a supervisor under the National Labor Relations Act by: (1) eliminating the two most common supervisory duties – the authority “to assign” other employees, and the authority to “responsibly to direct” other employees; and (2) requiring that a supervisor spend the majority of work time engaging in the remaining duties outlined in the definition (i.e., the authority to exercise independent judgment in the interest of the employer, to hire, transfer, suspend, lay-off, recall, promote, discharge, reward, or discipline other employees, or to adjust their grievances or effectively to recommend such action). With its passage into law, RESPECT will increase the number of employees, currently considered supervisors, who can join unions and seriously impair management’s ability to supervise effectively the workplace. President-Elect Obama already has stated that he agrees with this proposed legislation.
Employers attending the seminar will gain knowledge on topics including, but not limited to:
The labor unions that supported President-Elect Obama and the congressional Democrats will expect to see their signature issues placed at the top of the new administration’s legislative agenda. That likely means passage of some version of the Employee Free Choice Act (“EFCA”) and the lesser-known Re-Empowerment of Skilled and Professional Employees and Construction Trades Act ("RESPECT"). Enactment of these two proposed pieces of legislation will alter radically both the balance of strength between employers and unions and the ability of employers to supervise their workplaces effectively.
EFCA has four primary goals: (1) to allow unions to organize employees (without the employer’s knowledge, much less an opportunity to express its opposing viewpoint) through card checks and eliminate secret-ballot elections; (2) to force employers to accept unreasonable bargaining demands from unions by compelling employer participation in binding interest arbitration of all unresolved issues; (3) to order employers to abide by the decisions of an outside arbitrator who does not have to accept responsibility for a bad decision; and, (4) to mandate employer payment of back pay, liquidated damages and potentially significant fines where an employer has violated employee rights to unionize.
The U.S. House of Representatives passed the EFCA in 2007. However, a Senate filibuster backed up by a threatened presidential veto prevented the passage of the bill. Under the incoming presidential administration, a veto is unlikely and, in light of an increased Democratic Senate majority, the likelihood of a successful filibuster is highly uncertain.
RESPECT will amend dramatically the nearly 60 year old statutory definition of a supervisor under the National Labor Relations Act by: (1) eliminating the two most common supervisory duties – the authority “to assign” other employees, and the authority to “responsibly to direct” other employees; and (2) requiring that a supervisor spend the majority of work time engaging in the remaining duties outlined in the definition (i.e., the authority to exercise independent judgment in the interest of the employer, to hire, transfer, suspend, lay-off, recall, promote, discharge, reward, or discipline other employees, or to adjust their grievances or effectively to recommend such action). With its passage into law, RESPECT will increase the number of employees, currently considered supervisors, who can join unions and seriously impair management’s ability to supervise effectively the workplace. President-Elect Obama already has stated that he agrees with this proposed legislation.
If you are interested in understanding these
anticipated laws and an employer’s best defense to these laws, then you
are invited to attend a free breakfast seminar provided by Zashin &
Rich on Thursday, December 4, 2008 from 9:00 a.m. to 11:00
a.m.
- a comprehensive overview of the proposed statutory changes to the National Labor Relations Act, and the likely impact of these changes upon workforce unionization and labor negotiations;
- a presentation of union avoidance strategies and tactics that focus upon minimizing opportunities for unions to obtain union authorization cards from a majority of employees; and,
- a discussion of recommended adjustments to workplace policies and procedures to reduce the potential adverse consequences of complying with these potential new laws.
Tuesday, November 4, 2008
No More Hanging Chads, Just Long Lines: Employee Voting Leave on Election Day
*By Jason Rossiter
November 4, 2008 is Election Day throughout the nation and Ohio. This year, over 666,000 new voters have registered in Ohio – an increase of almost 9% from January, 2008. State election officials predict a record turnout of 80% which will likely result in long lines and long waiting times at the polls. Employees who experience long waiting times to vote could be tardy to work or take time off during their workday to vote. What course of action may an employer take under these circumstances?
Ohio Revised Code §3599.06 prohibits employers from discharging or threatening to discharge an employee for taking a “reasonable amount of time to vote.” Further, this law prohibits employers from inflicting or threatening to inflict any injury, harm, or loss against employees to induce an employee to vote or refrain from voting. Employers who violate this law are subject to a fine ranging from $50 to $500, enforceable by the Ohio Elections Commission.
Deducting Pay for Employee’s Leave to Vote
Is an employer required to pay an employee for the time the employee was voting?
Ohio law does not explicitly require employers to pay their employees for the time they take off to vote. According to the Ohio Attorney General, employers do not have to pay hourly, commissioned, or piecework employees for leave taken to vote. However, according to the Ohio Attorney General, employers who deduct a salaried employee’s pay for leave taken by the salaried employee to vote, may violate Ohio law. Employers should review their pay practices to determine whether their pay practices are consistent with the Ohio Attorney General’s interpretation of Ohio Revised Code §3599.06.
Voting Before or After Work
Is an employer required to permit an employee to take leave to vote if the employee could have voted before or after work?
Generally, Ohio law requires employers to provide a reasonable amount of time to vote. Ohio law does not provide for any exceptions to this requirement, even when the employee can vote before or after work. Therefore, employers should provide employees leave to vote even when the employee can vote before or after work.
Wrongful Termination Claims and Ohio Election Law
Ohio has no recorded court cases where an employee has sued a former employer for discharging that employee for taking time off of work to vote. However, employers who discharge employees for taking leave to vote may be subject to a cause of action for wrongful discharge in violation of Ohio public policy. Ohio Revised Code §3599.06 appears to provide a clear statement of public policy which may lack a comprehensive remedy to discharged employees. While there are no recorded court cases on this issue, a court faced with this issue may find that an employee is entitled to bring a cause of action for wrongful discharge in violation of Ohio public policy.
*Jason Rossiter has extensive experience in all aspects of workplace law, including wrongful discharge litigation. For more information about wrongful termination, please contact Zashin & Rich at 216.696.4441.
November 4, 2008 is Election Day throughout the nation and Ohio. This year, over 666,000 new voters have registered in Ohio – an increase of almost 9% from January, 2008. State election officials predict a record turnout of 80% which will likely result in long lines and long waiting times at the polls. Employees who experience long waiting times to vote could be tardy to work or take time off during their workday to vote. What course of action may an employer take under these circumstances?
Ohio Revised Code §3599.06 prohibits employers from discharging or threatening to discharge an employee for taking a “reasonable amount of time to vote.” Further, this law prohibits employers from inflicting or threatening to inflict any injury, harm, or loss against employees to induce an employee to vote or refrain from voting. Employers who violate this law are subject to a fine ranging from $50 to $500, enforceable by the Ohio Elections Commission.
Deducting Pay for Employee’s Leave to Vote
Is an employer required to pay an employee for the time the employee was voting?
Ohio law does not explicitly require employers to pay their employees for the time they take off to vote. According to the Ohio Attorney General, employers do not have to pay hourly, commissioned, or piecework employees for leave taken to vote. However, according to the Ohio Attorney General, employers who deduct a salaried employee’s pay for leave taken by the salaried employee to vote, may violate Ohio law. Employers should review their pay practices to determine whether their pay practices are consistent with the Ohio Attorney General’s interpretation of Ohio Revised Code §3599.06.
Voting Before or After Work
Is an employer required to permit an employee to take leave to vote if the employee could have voted before or after work?
Generally, Ohio law requires employers to provide a reasonable amount of time to vote. Ohio law does not provide for any exceptions to this requirement, even when the employee can vote before or after work. Therefore, employers should provide employees leave to vote even when the employee can vote before or after work.
Wrongful Termination Claims and Ohio Election Law
Ohio has no recorded court cases where an employee has sued a former employer for discharging that employee for taking time off of work to vote. However, employers who discharge employees for taking leave to vote may be subject to a cause of action for wrongful discharge in violation of Ohio public policy. Ohio Revised Code §3599.06 appears to provide a clear statement of public policy which may lack a comprehensive remedy to discharged employees. While there are no recorded court cases on this issue, a court faced with this issue may find that an employee is entitled to bring a cause of action for wrongful discharge in violation of Ohio public policy.
*Jason Rossiter has extensive experience in all aspects of workplace law, including wrongful discharge litigation. For more information about wrongful termination, please contact Zashin & Rich at 216.696.4441.
Saturday, August 9, 2008
EMPLOYMENT LAW QUARTERLY | Summer 2008, Volume X, Issue iii
Download PDF
Congress recently passed a bill by a wide margin (402-17) that, if passed, would overturn Supreme Court precedent and broadly expand workers’ rights under the Americans with Disabilities Act (“ADA”). Supporters of the bill argue that the amendments to the ADA would provide “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”
The amendments would operate to expand coverage under the ADA to include a greater amount of mental and physical impairments. First, the definition of disability would expand to prevent an employer from considering the impact of “mitigating measures” an employee might use to control his disability, e.g., (medication, prosthetics, or hearing aids, etc. that prior Supreme Court decisions allowed). Second, the definition would expand to include “episodic” disabilities or conditions that are in remission. Currently, disabilities include only those “physical or mental impairments that substantially limit one or more major life activities,” such as performing manual tasks, seeing, hearing, walking, standing, and thinking.
The amendments further would instruct courts to consider “substantially limits” in a broad sense. Previously, the Supreme Court had narrowed the definition of this term to a strict and demanding standard. The ADA’s potential amendments would render those decisions moot.
Finally, the amendments would allow for the Attorney General, the Equal Employment Opportunity Commission, and the Secretary of Transportation to issue regulations and guidance on how the amended definitions should be construed. Supporters of the amendments argue that this will provide for a nationwide mandate for the elimination of discrimination against individuals with disabilities by providing employers with guidance on how to follow and adhere to the ADA.
The potential amendments, if passed by the Senate and signed into law by the President, will go into effect on January 1, 2009. Practically, persons with conditions such as cancer, diabetes, and epilepsy – who before were not considered “disabled” – would be covered under the amended ADA. This expansion of coverage will likely open the door to more lawsuits against employers as the burden of proof for plaintiffs becomes more lax.
Employers should be aware of these possible changes to the ADA looming on the horizon and be prepared in the event the bill becomes law and they are required to provide additional employees with accommodations.
*George S. Crisci is an OSBA Certified Specialist in Labor and Employment Law. George represents employers in all facets of employment law, and both public and private sector management in actions before the NLRB. For more information concerning any labor or employment issue, please contact George at 216.696.4441 or gsc@zrlaw.com.
The Ohio Supreme Court recently affirmed a lower court decision in favor of a Plaintiff whose medical records were released to an unauthorized party by the Defendant, his former wife’s divorce attorney. In Hageman v. Southwest General Health Center, the attorney – who gained access to the disputed medical records through discovery proceeding in the domestic relations matter involving the Plaintiff and his former wife – released a copy of the records to a County Prosecutor after the Plaintiff was charged with domestic violence. The Court held that the attorney could be found liable to the Plaintiff for her unauthorized disclosure.
In 2003, the Plaintiff began seeing a psychiatrist. Through the course of treatment, he admitted to having homicidal thoughts about his wife and was subsequently treated for bipolar disorder. When his wife filed for divorce, plaintiff filed a counterclaim seeking legal custody of the couple’s minor son. The wife’s attorney, thereafter, served subpoenas on the Plaintiff’s psychiatrist requesting his medical records and psychotherapy notes. Ultimately, the wife’s attorney received medical documentation from the Plaintiff’s psychiatrist.
At some point later, the Plaintiff was accused of assaulting his wife at home and was charged with domestic violence. On the day of trial, the prosecutor met with the wife’s attorney where the attorney shared the medical records containing the Plaintiff’s nefarious thoughts about his wife. The records were never used or entered into evidence and the Plaintiff was acquitted of all charges.
After entering into a separation agreement with his former wife, the Plaintiff filed suit against his psychiatrist, the psychiatrist’s hospital employer, his now ex-wife, and her attorney. The trial court granted summary judgment on behalf of every defendant, including the attorney. On appeal, the Court of Appeals affirmed for every defendant except the attorney on grounds that she had “overstepped her bounds … when she disseminated information regarding (the Plaintiff’s) psychiatric condition to the prosecutor.”
Affirming the lower court judgment, the Supreme Court held that while the Plaintiff had knowingly placed his medical condition into evidence during the custody proceeding, his implied authorization and waiver was limited to that matter and did not extend as a waiver to unauthorized disclosure to third parties, such as the prosecutor in the Plaintiff’s criminal trial.
The Court held that the public policy surrounding medical records confidentiality trumped a purported expansive waiver of privacy obtained during litigation. Privacy is vital, according to the Court, since the mere possibility of disclosure of sensitive records could impede successful treatment, especially in terms of psychotherapy, due to the possibility of embarrassment or disgrace. In terms of Plaintiff’s situation, the Court agreed that he might have been pressured into settling with his former wife due to the potential embarrassment of disclosure of his medical treatment.
Because an individual must be encouraged to seek such treatment, the Court held that any medical waiver is strictly limited to the particular litigation. Accordingly, an attorney who obtains medical records lawfully through the discovery process could be liable for later disclosure unrelated to the specific matter in which they were procured.
Before releasing any confidential or proprietary information about an employee, employers should carefully examine the potential use – and misuse – of that information and take adequate precaution to ensure that the records are kept confidential and used only for the limited stated purpose for which they were procured.
The Sixth Circuit Court of Appeals, in Niswander v. Cincinnati Insurance Company, recently held that a female claims adjuster, who was fired after she disclosed files containing customer names and other confidential company information to her attorneys pursuing an equal pay collective action, did not engage in “protected activity” under Title VII.
In 2003, Kathy Niswander opted into a collective action lawsuit against her employer, Cincinnati Insurance (“Cincinnati”), alleging that the company had discriminated against her on account of her sex in violation of the Equal Pay Act (“EPA”). After she joined the lawsuit, Niswander complained that she was being discriminated against in retaliation by her supervisors. Ultimately, in 2005, Niswander filed a separate Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that she had been retaliated against for engaging in protected activity; namely, joining the EPA lawsuit.
During the course of the EPA litigation, Niswander’s attorneys sent her a letter requesting that she “look around [her] house and office for any documents [she thought] might be remotely helpful to our case and send them in right away.” Her attorneys further requested documents from Niswander in response to Cincinnati’s discovery requests and warned her of the potential consequences of her failure to cooperate in discovery. In this letter, her attorneys requested “any documents related to (Niswander’s) employment” that she had not already submitted.
In response to the letters, Niswander provided many documents that she believed were relevant to Cincinnati’s alleged acts of retaliation, but admittedly had no documents supporting an EPA claim. Some of the documents produced by Niswander were claim-file documents that contained confidential information about Cincinnati policyholders. According to Niswander, she believed that since Cincinnati had made the discovery requests, this disclosure was allowed. When Cincinnati received the documents, however, they asserted that she had violated the company’s Privacy Policy, its Code of Conduct, and its Conflict of Interest Policy, all prohibiting the disclosure of policyholder information. In December 2005, Cincinnati terminated Niswander’s employment and Niswander filed a separate lawsuit alleging that her termination was retaliation for filing her Charge with the EEOC.
The Sixth Circuit affirmed the trial court’s grant of summary judgment on Niswander’s retaliation claim. The court held that Niswander’s delivery of the confidential documents was not reasonable as “participation” under Title VII because she admitted that the documents were not relevant to the claims in the lawsuit. The court applied the following six factors to determine whether Niswander’s act was reasonable under the opposition clause: (1) how the documents were obtained; (2) to whom they were produced; (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee's claims; (4) why the documents were produced; (5) the scope of the employer's privacy policy; and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer's privacy policy.
The court held that Niswander knowingly violated the company’s policies when she searched through policyholder files to obtain evidence of Cincinnati’s alleged retaliation. The court held that most of the factors favored the policy and that Niswander could have made a record of the alleged retaliation without violating the policyholders’ privacy. The court reasoned that, rather than invade client files, Niswander could have made notes of Cincinnati’s conduct that she felt was retaliatory.
While this case is certainly a win for this employer, employers should take precaution when terminating any employee that is involved in a Title VII lawsuit and/or administrative proceeding against their company for an alleged violation of a company policy. Prior to taking an adverse employment action, employers should consider whether the employee’s conduct passes the balancing test recently established by the Sixth Circuit.
*Michael V. Heffernan regularly defends employers involved in employment litigation and in administrative hearings before the Equal Employment Opportunity Commission and various state administrative civil rights agencies.
A New Jersey appellate court recently held that an employer can be found liable for retaliation for conduct that occurs after the employee’s separation from his or her employment. In Roa v. LAFE (“Roa”), Fernando Roa and his wife, Lilliana Roa, alleged that they were discriminated and retaliated against by their former employer, LAFE, a distributor of “Hispanic Food Products,” and its Vice-President, Marino Roa.
Fernando and Lilliana alleged that Marino was engaged in a number of extramarital relationships with several female employees of LAFE. In February, 2003, when Marino’s wife discovered the relationships, in an attempt to shift blame for his conduct, Marino told his wife that Fernando was the one involved in the relationships. Initially, according to Fernando, he went along with the ruse in order to protect Marino, his superior, in an effort to save his job. Ultimately, however, Fernando came clean to Marino’s wife and confirmed Marino’s involvement in the affairs.
Following Fernando’s confession to Marino’s wife, Fernando and Lilliana allege that Marino engaged in a campaign of harassment against them. At one point, Fernando complained to upper-level management that Marino engaged in the sexual harassment of employees. Fernando’s complaint was rebuffed and Fernando (on October 12, 2003) and Lilliana (on August 24, 2003) were ultimately terminated, allegedly in retaliation for making the complaint about Marino’s conduct. The Roa’s filed their Complaint against LAFE and Marino Roa, under New Jersey’s Law Against Discrimination (“L.A.D.”), more than two years later, on November 5, 2005.
The Defendants argued that the Plaintiffs’ claims could not have accrued past the dates of their terminations. Thus, they argued, given the L.A.D.’s two-year limitations period, both Fernando and Lilliana’s claims were untimely. In response, Fernando and Lilliana alleged that LAFE improperly interfered with Lilliana’s unemployment benefits by indicating to the state unemployment commission that she had been fired for “misconduct,” resulting in Lilliana not receiving unemployment benefits until February 2004. The Roa’s further argued that LAFE improperly denied a medical insurance claim by terminating Fernando’s coverage on September 30, 2003, ahead of his discharge. They alleged that an early October 2003 claim that accrued during Fernando’s employment was not denied by the health insurer until November 11, 2003. Accordingly, they claimed that the limitations period accrued on November 11, 2003 for Fernando and February 2004 for Lilliana, within the two-year limitations period, as LAFE’s conduct in denying the medical claim and the unemployment claim was in retaliation for Fernando’s harassment complaint.
In their Reply brief, the Defendants countered that Fernando had to have known of his potential claim, at the latest in October 2003, because he had a lawyer negotiating the terms of his severance at the time of his discharge. With respect to Lilliana, they argued that she knew of the denial of her unemployment benefits not when she began to receive them (in February 2004), but rather on October 21, 2003, when the state unemployment commission issued a finding denying her claim. Accordingly, the Defendants maintained that Fernando and Lilliana’s claims were time-barred.
Although the trial court agreed with the Defendants, the appellate court reversed in part, finding that the Supreme Court decision of Burlington N. v. Sante Fe Ry. Co. (“Burlington”), which separated a substantive violation under Title VII from independent acts of retaliation that need not be related to the workplace, controlled. The court held that allegations of retaliation under the L.A.D. likewise were not confined to a plaintiff’s dates of employment. Rather, both Title VII and state law employment discrimination laws’ anti-retaliation provisions create separate and distinct causes of action and an employer’s continuing violation of these statutes could accrue after the employee’s termination. The Court found that the denial of Lilliana’s unemployment claim and the denial of Fernando’s medical insurance claim could be construed as continuing violations of Title VII and the L.A.D.’s anti-retaliation provisions.
The court ultimately upheld the dismissal of Lilliana’s claims, however, finding that she knew, at the latest, on October 21, 2003, that her claim for unemployment benefits had been denied. With respect to Fernando, conversely, the court held that he did not learn of the denial of his medical insurance claim until November 11, 2003, less than two years before he filed his Complaint, on November 5, 2005. Thus, the court allowed his claims to survive.
The Roa decision illustrates how courts likely will apply Burlington, finding that violations of Title VII or a state’s civil rights statutes’ anti-retaliation provisions can accrue after an employee’s termination date. When dealing with post-employment benefits such as health care coverage and/or unemployment claims, employers should carefully consider whether their conduct could be construed as a “continuing violation” of either the applicable state law against discrimination and/or Title VII, and extend the relevant limitations period.
*Patrick J. Hoban practices in all areas of labor and employment law, including employment discrimination and wrongful discharge. For more information on Title VII claims or any labor or employment issue, contact Pat at 216.696.4441 or pjh@zrlaw.com.
Zashin and Rich Co., L.P.A. Named As Approved Counsel by Cincinnati Insurance
Cincinnati Insurance recently named Zashin and Rich Co., L.P.A. as “approved counsel” for employment practices liability insurance claims. In the event that your company has a claim under a Cincinnati Insurance policy (e.g., a demand letter, charge of discrimination or a lawsuit), simply ask your insurance broker to request Zashin and Rich Co., L.P.A. as defense counsel in the matter.
Zashin & Rich Co., L.P.A. Welcomes Mike Heffernan to its Growing Labor and Employment Group
Zashin & Rich recently welcomed Mike Heffernan to the firm and its expanding Employment and Labor Group. Mike defends employers in a wide variety of labor and employment matters, including harassment, discrimination, and federal and state civil rights. Mike received his undergraduate degree, cum laude, in Urban Affairs from Cleveland State University in 1998 and graduated from the Cleveland-Marshall School of Law in 2001, where he was Articles Editor for the Cleveland-Marshall Law Review. Prior to joining Zashin & Rich, Mike served as the Chief Judicial Attorney of the Cuyahoga County Court of Common Pleas.
Please join us in welcoming Mike to Z&R!
Upcoming Seminars
September 8, 2008
Steve Dlott and Patrick Watts will present the “Ten Biggest Leave of Absence/Return-To-Work Mistakes Aging Services Providers Make” to the Advocate of Not-For-Profit Services For Older Ohioans (“AOPHA”) 2008 Annual Conference and Trade Show, which will be held at the Greater Columbus Convention Center. Steve and Patrick will provide protocols and decision trees to assist health care organizations in the resolution of these complicated issues. For more information and/or to register, call (614) 444-2882.
September 24, 2008
Jon Dileno will be a panelist at the AMS Conference on Labor Arbitration at the Crowne Plaza, Cleveland City Centre Hotel on the subject of "Just Cause for Discipline and Discharge, the Basics. The Perspective of the Employer and Union Representatives."
September 25, 2008
Steve Dlott will present “Defending Workers’ Compensation Claims” to the Lake/Geauga Chapter of the Society for Human Resource Management (“SHRM”) as part of the “Effective HR – It’s All About People!” workshop on September 25, 2008 at the Radisson Hotel/Eastlake. For more information or to register, call (440) 392-2168 or email: info@lgashrm.org.
September 10-13, 2008
George Crisci will be part of a panel discussion at the Labor & Employment Law Section of the American Bar Association’s 2nd Annual CLE Conference in Denver, Colorado from September 10-13, 2008. George will serve as a panelist for the “Negotiating Skills in Collective Bargaining” discussion that will focus on what works and what does not work in the context of labor negotiations and useful tools for working in the thicket of public sector bargaining.
October 16 and 17, 2008
George Crisci and Stephen Zashin will speak at the 45th Annual Midwest Labor and Employment Law Seminar presented by the Ohio State Bar Association October 16 and 17, 2008 in Columbus. George will present “Public Collective Bargaining Developments” to the conference and Stephen will present an update on FMLA and other leave law.
- DISABILITY UPDATE – House Expands ADA Coverage
- ESQUIRE BEWARE: Attorney Found Liable for Unauthorized Disclosure of Medical Records
- NO RETALIATION: Violating Privacy Policy Is Not Protected Activity
- TIMELINESS - Retaliation Can Accrue Past Termination
- Z&R Shorts
DISABILITY UPDATE – House Expands ADA Coverage Even if You Have a TPA
By George S. Crisci*Congress recently passed a bill by a wide margin (402-17) that, if passed, would overturn Supreme Court precedent and broadly expand workers’ rights under the Americans with Disabilities Act (“ADA”). Supporters of the bill argue that the amendments to the ADA would provide “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”
The amendments would operate to expand coverage under the ADA to include a greater amount of mental and physical impairments. First, the definition of disability would expand to prevent an employer from considering the impact of “mitigating measures” an employee might use to control his disability, e.g., (medication, prosthetics, or hearing aids, etc. that prior Supreme Court decisions allowed). Second, the definition would expand to include “episodic” disabilities or conditions that are in remission. Currently, disabilities include only those “physical or mental impairments that substantially limit one or more major life activities,” such as performing manual tasks, seeing, hearing, walking, standing, and thinking.
The amendments further would instruct courts to consider “substantially limits” in a broad sense. Previously, the Supreme Court had narrowed the definition of this term to a strict and demanding standard. The ADA’s potential amendments would render those decisions moot.
Finally, the amendments would allow for the Attorney General, the Equal Employment Opportunity Commission, and the Secretary of Transportation to issue regulations and guidance on how the amended definitions should be construed. Supporters of the amendments argue that this will provide for a nationwide mandate for the elimination of discrimination against individuals with disabilities by providing employers with guidance on how to follow and adhere to the ADA.
The potential amendments, if passed by the Senate and signed into law by the President, will go into effect on January 1, 2009. Practically, persons with conditions such as cancer, diabetes, and epilepsy – who before were not considered “disabled” – would be covered under the amended ADA. This expansion of coverage will likely open the door to more lawsuits against employers as the burden of proof for plaintiffs becomes more lax.
Employers should be aware of these possible changes to the ADA looming on the horizon and be prepared in the event the bill becomes law and they are required to provide additional employees with accommodations.
*George S. Crisci is an OSBA Certified Specialist in Labor and Employment Law. George represents employers in all facets of employment law, and both public and private sector management in actions before the NLRB. For more information concerning any labor or employment issue, please contact George at 216.696.4441 or gsc@zrlaw.com.
ESQUIRE BEWARE: Attorney Found Liable for Unauthorized Disclosure of Medical Records
By Lois A. GruhinThe Ohio Supreme Court recently affirmed a lower court decision in favor of a Plaintiff whose medical records were released to an unauthorized party by the Defendant, his former wife’s divorce attorney. In Hageman v. Southwest General Health Center, the attorney – who gained access to the disputed medical records through discovery proceeding in the domestic relations matter involving the Plaintiff and his former wife – released a copy of the records to a County Prosecutor after the Plaintiff was charged with domestic violence. The Court held that the attorney could be found liable to the Plaintiff for her unauthorized disclosure.
In 2003, the Plaintiff began seeing a psychiatrist. Through the course of treatment, he admitted to having homicidal thoughts about his wife and was subsequently treated for bipolar disorder. When his wife filed for divorce, plaintiff filed a counterclaim seeking legal custody of the couple’s minor son. The wife’s attorney, thereafter, served subpoenas on the Plaintiff’s psychiatrist requesting his medical records and psychotherapy notes. Ultimately, the wife’s attorney received medical documentation from the Plaintiff’s psychiatrist.
At some point later, the Plaintiff was accused of assaulting his wife at home and was charged with domestic violence. On the day of trial, the prosecutor met with the wife’s attorney where the attorney shared the medical records containing the Plaintiff’s nefarious thoughts about his wife. The records were never used or entered into evidence and the Plaintiff was acquitted of all charges.
After entering into a separation agreement with his former wife, the Plaintiff filed suit against his psychiatrist, the psychiatrist’s hospital employer, his now ex-wife, and her attorney. The trial court granted summary judgment on behalf of every defendant, including the attorney. On appeal, the Court of Appeals affirmed for every defendant except the attorney on grounds that she had “overstepped her bounds … when she disseminated information regarding (the Plaintiff’s) psychiatric condition to the prosecutor.”
Affirming the lower court judgment, the Supreme Court held that while the Plaintiff had knowingly placed his medical condition into evidence during the custody proceeding, his implied authorization and waiver was limited to that matter and did not extend as a waiver to unauthorized disclosure to third parties, such as the prosecutor in the Plaintiff’s criminal trial.
The Court held that the public policy surrounding medical records confidentiality trumped a purported expansive waiver of privacy obtained during litigation. Privacy is vital, according to the Court, since the mere possibility of disclosure of sensitive records could impede successful treatment, especially in terms of psychotherapy, due to the possibility of embarrassment or disgrace. In terms of Plaintiff’s situation, the Court agreed that he might have been pressured into settling with his former wife due to the potential embarrassment of disclosure of his medical treatment.
Because an individual must be encouraged to seek such treatment, the Court held that any medical waiver is strictly limited to the particular litigation. Accordingly, an attorney who obtains medical records lawfully through the discovery process could be liable for later disclosure unrelated to the specific matter in which they were procured.
Before releasing any confidential or proprietary information about an employee, employers should carefully examine the potential use – and misuse – of that information and take adequate precaution to ensure that the records are kept confidential and used only for the limited stated purpose for which they were procured.
NO RETALIATION: Violating Privacy Policy Is Not Protected Activity
By Michael V. HeffernanThe Sixth Circuit Court of Appeals, in Niswander v. Cincinnati Insurance Company, recently held that a female claims adjuster, who was fired after she disclosed files containing customer names and other confidential company information to her attorneys pursuing an equal pay collective action, did not engage in “protected activity” under Title VII.
In 2003, Kathy Niswander opted into a collective action lawsuit against her employer, Cincinnati Insurance (“Cincinnati”), alleging that the company had discriminated against her on account of her sex in violation of the Equal Pay Act (“EPA”). After she joined the lawsuit, Niswander complained that she was being discriminated against in retaliation by her supervisors. Ultimately, in 2005, Niswander filed a separate Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that she had been retaliated against for engaging in protected activity; namely, joining the EPA lawsuit.
During the course of the EPA litigation, Niswander’s attorneys sent her a letter requesting that she “look around [her] house and office for any documents [she thought] might be remotely helpful to our case and send them in right away.” Her attorneys further requested documents from Niswander in response to Cincinnati’s discovery requests and warned her of the potential consequences of her failure to cooperate in discovery. In this letter, her attorneys requested “any documents related to (Niswander’s) employment” that she had not already submitted.
In response to the letters, Niswander provided many documents that she believed were relevant to Cincinnati’s alleged acts of retaliation, but admittedly had no documents supporting an EPA claim. Some of the documents produced by Niswander were claim-file documents that contained confidential information about Cincinnati policyholders. According to Niswander, she believed that since Cincinnati had made the discovery requests, this disclosure was allowed. When Cincinnati received the documents, however, they asserted that she had violated the company’s Privacy Policy, its Code of Conduct, and its Conflict of Interest Policy, all prohibiting the disclosure of policyholder information. In December 2005, Cincinnati terminated Niswander’s employment and Niswander filed a separate lawsuit alleging that her termination was retaliation for filing her Charge with the EEOC.
The Sixth Circuit affirmed the trial court’s grant of summary judgment on Niswander’s retaliation claim. The court held that Niswander’s delivery of the confidential documents was not reasonable as “participation” under Title VII because she admitted that the documents were not relevant to the claims in the lawsuit. The court applied the following six factors to determine whether Niswander’s act was reasonable under the opposition clause: (1) how the documents were obtained; (2) to whom they were produced; (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee's claims; (4) why the documents were produced; (5) the scope of the employer's privacy policy; and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer's privacy policy.
The court held that Niswander knowingly violated the company’s policies when she searched through policyholder files to obtain evidence of Cincinnati’s alleged retaliation. The court held that most of the factors favored the policy and that Niswander could have made a record of the alleged retaliation without violating the policyholders’ privacy. The court reasoned that, rather than invade client files, Niswander could have made notes of Cincinnati’s conduct that she felt was retaliatory.
While this case is certainly a win for this employer, employers should take precaution when terminating any employee that is involved in a Title VII lawsuit and/or administrative proceeding against their company for an alleged violation of a company policy. Prior to taking an adverse employment action, employers should consider whether the employee’s conduct passes the balancing test recently established by the Sixth Circuit.
*Michael V. Heffernan regularly defends employers involved in employment litigation and in administrative hearings before the Equal Employment Opportunity Commission and various state administrative civil rights agencies.
TIMELINESS - Retaliation Can Accrue Past Termination
By Patrick J. Hoban*A New Jersey appellate court recently held that an employer can be found liable for retaliation for conduct that occurs after the employee’s separation from his or her employment. In Roa v. LAFE (“Roa”), Fernando Roa and his wife, Lilliana Roa, alleged that they were discriminated and retaliated against by their former employer, LAFE, a distributor of “Hispanic Food Products,” and its Vice-President, Marino Roa.
Fernando and Lilliana alleged that Marino was engaged in a number of extramarital relationships with several female employees of LAFE. In February, 2003, when Marino’s wife discovered the relationships, in an attempt to shift blame for his conduct, Marino told his wife that Fernando was the one involved in the relationships. Initially, according to Fernando, he went along with the ruse in order to protect Marino, his superior, in an effort to save his job. Ultimately, however, Fernando came clean to Marino’s wife and confirmed Marino’s involvement in the affairs.
Following Fernando’s confession to Marino’s wife, Fernando and Lilliana allege that Marino engaged in a campaign of harassment against them. At one point, Fernando complained to upper-level management that Marino engaged in the sexual harassment of employees. Fernando’s complaint was rebuffed and Fernando (on October 12, 2003) and Lilliana (on August 24, 2003) were ultimately terminated, allegedly in retaliation for making the complaint about Marino’s conduct. The Roa’s filed their Complaint against LAFE and Marino Roa, under New Jersey’s Law Against Discrimination (“L.A.D.”), more than two years later, on November 5, 2005.
The Defendants argued that the Plaintiffs’ claims could not have accrued past the dates of their terminations. Thus, they argued, given the L.A.D.’s two-year limitations period, both Fernando and Lilliana’s claims were untimely. In response, Fernando and Lilliana alleged that LAFE improperly interfered with Lilliana’s unemployment benefits by indicating to the state unemployment commission that she had been fired for “misconduct,” resulting in Lilliana not receiving unemployment benefits until February 2004. The Roa’s further argued that LAFE improperly denied a medical insurance claim by terminating Fernando’s coverage on September 30, 2003, ahead of his discharge. They alleged that an early October 2003 claim that accrued during Fernando’s employment was not denied by the health insurer until November 11, 2003. Accordingly, they claimed that the limitations period accrued on November 11, 2003 for Fernando and February 2004 for Lilliana, within the two-year limitations period, as LAFE’s conduct in denying the medical claim and the unemployment claim was in retaliation for Fernando’s harassment complaint.
In their Reply brief, the Defendants countered that Fernando had to have known of his potential claim, at the latest in October 2003, because he had a lawyer negotiating the terms of his severance at the time of his discharge. With respect to Lilliana, they argued that she knew of the denial of her unemployment benefits not when she began to receive them (in February 2004), but rather on October 21, 2003, when the state unemployment commission issued a finding denying her claim. Accordingly, the Defendants maintained that Fernando and Lilliana’s claims were time-barred.
Although the trial court agreed with the Defendants, the appellate court reversed in part, finding that the Supreme Court decision of Burlington N. v. Sante Fe Ry. Co. (“Burlington”), which separated a substantive violation under Title VII from independent acts of retaliation that need not be related to the workplace, controlled. The court held that allegations of retaliation under the L.A.D. likewise were not confined to a plaintiff’s dates of employment. Rather, both Title VII and state law employment discrimination laws’ anti-retaliation provisions create separate and distinct causes of action and an employer’s continuing violation of these statutes could accrue after the employee’s termination. The Court found that the denial of Lilliana’s unemployment claim and the denial of Fernando’s medical insurance claim could be construed as continuing violations of Title VII and the L.A.D.’s anti-retaliation provisions.
The court ultimately upheld the dismissal of Lilliana’s claims, however, finding that she knew, at the latest, on October 21, 2003, that her claim for unemployment benefits had been denied. With respect to Fernando, conversely, the court held that he did not learn of the denial of his medical insurance claim until November 11, 2003, less than two years before he filed his Complaint, on November 5, 2005. Thus, the court allowed his claims to survive.
The Roa decision illustrates how courts likely will apply Burlington, finding that violations of Title VII or a state’s civil rights statutes’ anti-retaliation provisions can accrue after an employee’s termination date. When dealing with post-employment benefits such as health care coverage and/or unemployment claims, employers should carefully consider whether their conduct could be construed as a “continuing violation” of either the applicable state law against discrimination and/or Title VII, and extend the relevant limitations period.
*Patrick J. Hoban practices in all areas of labor and employment law, including employment discrimination and wrongful discharge. For more information on Title VII claims or any labor or employment issue, contact Pat at 216.696.4441 or pjh@zrlaw.com.
Z&R Shorts
Zashin and Rich Co., L.P.A. Named As Approved Counsel by Cincinnati Insurance
Cincinnati Insurance recently named Zashin and Rich Co., L.P.A. as “approved counsel” for employment practices liability insurance claims. In the event that your company has a claim under a Cincinnati Insurance policy (e.g., a demand letter, charge of discrimination or a lawsuit), simply ask your insurance broker to request Zashin and Rich Co., L.P.A. as defense counsel in the matter.
Zashin & Rich Co., L.P.A. Welcomes Mike Heffernan to its Growing Labor and Employment Group
Zashin & Rich recently welcomed Mike Heffernan to the firm and its expanding Employment and Labor Group. Mike defends employers in a wide variety of labor and employment matters, including harassment, discrimination, and federal and state civil rights. Mike received his undergraduate degree, cum laude, in Urban Affairs from Cleveland State University in 1998 and graduated from the Cleveland-Marshall School of Law in 2001, where he was Articles Editor for the Cleveland-Marshall Law Review. Prior to joining Zashin & Rich, Mike served as the Chief Judicial Attorney of the Cuyahoga County Court of Common Pleas.
Please join us in welcoming Mike to Z&R!
Upcoming Seminars
September 8, 2008
Steve Dlott and Patrick Watts will present the “Ten Biggest Leave of Absence/Return-To-Work Mistakes Aging Services Providers Make” to the Advocate of Not-For-Profit Services For Older Ohioans (“AOPHA”) 2008 Annual Conference and Trade Show, which will be held at the Greater Columbus Convention Center. Steve and Patrick will provide protocols and decision trees to assist health care organizations in the resolution of these complicated issues. For more information and/or to register, call (614) 444-2882.
September 24, 2008
Jon Dileno will be a panelist at the AMS Conference on Labor Arbitration at the Crowne Plaza, Cleveland City Centre Hotel on the subject of "Just Cause for Discipline and Discharge, the Basics. The Perspective of the Employer and Union Representatives."
September 25, 2008
Steve Dlott will present “Defending Workers’ Compensation Claims” to the Lake/Geauga Chapter of the Society for Human Resource Management (“SHRM”) as part of the “Effective HR – It’s All About People!” workshop on September 25, 2008 at the Radisson Hotel/Eastlake. For more information or to register, call (440) 392-2168 or email: info@lgashrm.org.
September 10-13, 2008
George Crisci will be part of a panel discussion at the Labor & Employment Law Section of the American Bar Association’s 2nd Annual CLE Conference in Denver, Colorado from September 10-13, 2008. George will serve as a panelist for the “Negotiating Skills in Collective Bargaining” discussion that will focus on what works and what does not work in the context of labor negotiations and useful tools for working in the thicket of public sector bargaining.
October 16 and 17, 2008
George Crisci and Stephen Zashin will speak at the 45th Annual Midwest Labor and Employment Law Seminar presented by the Ohio State Bar Association October 16 and 17, 2008 in Columbus. George will present “Public Collective Bargaining Developments” to the conference and Stephen will present an update on FMLA and other leave law.
Friday, August 8, 2008
25 Questions To Ask Yourself When Your Employee Calls In Sick On December 4, 2008!
*By Stephen S. Zashin, Esq. and Patrick M. Watts, Esq.
The Ohio Healthy Families Act (“OHFA”) likely will appear on the ballot on November 4, 2008. To prepare for drastic changes proposed by the OHFA, each Ohio employer must answer the following questions before it can even begin to understand its obligations and potential liabilities under the OHFA. The vote on OHFA is coming, and if it passes on November 4, Ohio employers must be prepared to navigate the new employment landscape it will create.
1. Which employers are required to comply with the OHFA?
All private employers with 25 or more employees must comply with the OHFA. All public employers must comply with the OHFA including the State and all of its political subdivisions regardless of their number of employees. R.C. 4114.01(B).
2. Are part-time employees included in the calculation to determine if an employer is covered by the OHFA?
Yes. The definition of employee includes part-time employees. Therefore, if a private employer employs 20 full-time employees and five part-time employees, the OHFA likely would cover the employer. R.C. 4114.01(B).
3. Does the OHFA apply to temporary and leased employees?
Yes. The OHFA uses the definition of employees from the Fair Labor Standards Act (“FLSA”). Temporary employees and leased employees constitute employees under the FLSA.
4. How much PAID sick leave do employers have to provide their employees under the OHFA?
Employees who work 30 hours or more per week are entitled to at least seven PAID sick days per year. R.C. 4114.02(A)(1). Employees who work less than 30 hours per week (or less than 1,560 hours per year) are entitled to at least a pro rata amount of PAID sick leave. For example, an employee who regularly works 15 hours per week is entitled to at least 3.5 days of sick leave per year. R.C. 4112.02(A)(2).
5. How should an employer calculate the amount of leave an employee accumulates when the employee’s schedule and work hours vary?
6. How frequently must an employer provide new sick leave?
Sick leave must accrue at least monthly. R.C. 4114.02(B).
7. Does sick leave carry over from year to year?
Yes. The OHFA requires employers to carry over accumulated sick leave from year to year. R.C. 4114.02(C). However, the OHFA provides that employers are not required to permit an employee to “accumulate” more than seven sick days “per year.” R.C. 4114.02(C). It is unclear whether the OHFA entitles employees to use more than seven sick days per year. OHFA proponents contend that the OHFA does not require employers to permit employees to bank accumulated sick leave indefinitely. Rather, they contend that employees are entitled to carry over up to seven days of sick leave from year to year, but employers are not required to allow employees to accumulate more than seven accumulated but unused days of sick leave at any one time. Importantly, under Ohio’s rules of statutory interpretation, the OHFA proponents’ interpretations will not bind the courts.
To illustrate the issues raised by OHFA’s carry over provision, consider an employer having a 30-hour per week employee whose sick day accumulation commences on January 1, 2009. The employer has a policy which states that employees accumulate sick leave on the first day of every month. The employee will accumulate seven sick days through December 1, 2009. If this employee uses no sick leave in 2009, under the OHFA, all seven sick days will carry over to 2010 and be available for use. This employee likely will not accumulate any sick leave days on January 1, 2010, because employees cannot accumulate more than seven sick days within any consecutive 12 months. If between January 20-27, 2010, the employee uses all seven sick days, he or she will have no “accumulated” sick days. However, because sick days accumulate at least monthly, and under the employer’s policy on the first day of each month, the employee will accumulate .5834 sick days for use on February, 1, 2010. The employee could use sick days as the sick days accumulate. If that same employee did not use any sick leave through December, 2010, on December, 2, 2010, the employee would have accumulated 6.4174 sick days all of which he or she could use in December 2010. The chart below illustrates this example:
Because the OHFA calculates sick leave
accumulation based on a consecutive 12 month period and entitles an
employee to carry over unused sick days from year to year, it appears
that employees may use more than seven days in a calendar year
(in the case above, 13.4174 days). Thus, despite using more than seven
sick days in a calendar year, the employee in this example did not
accumulate more than seven days in any consecutive 12 month period in
accord with the provisions of the OHFA.
8. Can employees take leave in increments of leave smaller than a full day?
Yes. Employees may receive sick leave that is less than a normal workday. If employees are entitled to receive leave in an increment less than a normal workday, the leave is counted on an hourly basis, or in the smallest increment that the employer’s payroll system uses to track other absences or leaves, whichever is smaller. For example, if the employer tracks Family Medical Leave Act (“FMLA”) leave time in one-hour increments, then the employer must award and track sick leave in one-hour increments. R.C. 4114.02(D).
9. For what purposes may sick leave be used?
Under the OHFA, sick leave may be used for three purposes: (1) Employees may take sick leave for an absence resulting from his or her own physical or mental illness, injury, or medical condition. R.C. 4114.03(A)(1). (2) Employees may take sick leave for an absence resulting from his or her own obtaining professional medical diagnosis or care, or preventive medical care. R.C. 4114.03(A)(2). (3) Employees may take sick leave for an absence for the purpose of caring for a child, parent, or spouse who has any of the conditions, or needs diagnosis or care, as described in paragraphs (1) or (2). R.C. 4114.03(A)(3).
10. Are employers required to permit employees to use sick leave for elective surgery?
Unclear. Under the FMLA, employers are not required to provide FMLA leave to employees who undergo elective surgery. However, the OHFA does not state whether employers are required to provide sick leave to employees who undergo elective surgery. Elective surgeries may constitute a medical condition under the OHFA which would require employers to provide sick leave to employees who undergo elective surgeries. R.C. 4114.03(A)(1)-(3).
11. Are employees required to mention the “Ohio Healthy Families Act” when requesting sick leave?
No. When requesting sick leave, employees must state only (1) the reason for his or her absence; and, (2) the expected duration of his or her absence. R.C. 4114.03(C).
12. How much advance notice does an employee have to give to use sick leave?
Generally, employees should notify employers as soon as possible. If the employee knows at least seven days in advance of the need to use sick leave, then the OHFA requires employees to ask for sick leave at least seven days in advance. If the employee does not know of the need to use sick leave more than seven days in advance, then the OHFA requires employees to inform the employer as soon as possible. R.C. 4114.03(C).
13. Can an employer require an employee to provide a doctor’s note supporting the employee’s need for sick leave?
Only in limited circumstances. An employer can require an employee to provide a certification supporting the need for leave from a health care professional only if the duration of the leave is more than three consecutive work days. If the duration of the sick leave is three consecutive work days or less, then the employer may not require that the employee provide a doctor’s note. R.C. 4114.04(A).
14. If an employer requests a doctor’s note, when must the employee provide it?
Employees have up to 30 days from the first day of leave to provide the doctor’s note. R.C. 4114.04(B). This provision may limit an employer’s ability to require employees to return FMLA certifications within 15 days from the employer’s request.
15. How does the OHFA affect employers with collective bargaining agreements?
The OHFA has substantial ramifications for both private sector and public sector employers subject to collective bargaining agreements (“CBA”). The issues affected include: call-off procedures, certification procedures, independent medical examination procedures, return-to-work certifications, sick leave incentive provisions, employee evaluations, and employee disciplinary actions. Pursuant to R.C. 4117.10(A), it is likely that Ohio’s Public Employee Collective Bargaining Act (R.C. 4117.01 et seq.) supersedes the OHFA. However, under Ohio law, if a public employee CBA is silent regarding a right or entitlement created by the OHFA, it is possible that the OHFA’s terms will apply to covered public employees. Employers should review their specific CBA’s to make definitive determinations as to these issues.
16. May employers count sick leave against a no-fault attendance policy?
17. May employers count sick leave against an employee attendance bonus program?
Probably not. The OHFA prohibits employers from using paid sick leave as a negative factor. Counting paid sick leave absences against an employee attendance bonus program is similar to counting paid sick leave against a no-fault attendance policy. Therefore, an employer would likely violate this provision by counting a paid sick leave absence against an employee for purposes of an employee attendance bonus program.
18. Are employers required to pay out remaining sick leave at the end of an employee’s employment?
Not unless the employer’s policy requires it. The OHFA does not require that employees receive compensation for remaining sick leave when their employment ends. However, employers who elect not to pay out accumulated but unused sick leave should have a written policy which expressly states that the employer will not pay unused sick leave at the end of employment.
19. If the OHFA passes, when does it become effective?
If the OHFA passes, the majority of the provisions will become effective on December 4, 2008. See Ohio Constitution, Article II, Section 1b.
However, the OHFA suggests that one component of the OHFA may operate retroactively to the date of enactment, which would occur on November 4, 2008 (presuming that the OHFA passes). R.C. 4114.07(C). The OHFA specifically states that employers may not eliminate or reduce any type of leave in existence on the date of enactment. R.C. 4114.07(C). If the OHFA passes, the date of enactment will occur on November 4, 2008. Therefore, any employer who wishes to reduce the amount of any leave provided under its current policy should act before November 4, 2008.
20. Will a Paid Time Off (“PTO”) only leave policy violate the OHFA?
Probably. The OHFA states that employers are not required to modify a leave policy as long as the leave policy offers employees, at their discretion, the equivalent to the sick leave mandated in the OHFA. However, if an employee uses all of his or her PTO days for reasons unrelated to sick leave, it is unclear whether the employer must then provide an additional seven days specifically for sick leave. In addition, if the PTO leave accrues on an annual basis, rather than on a monthly basis, the failure to accumulate sick leave on a monthly basis also appears to violate the OHFA.
21. Should an employer update its employee handbook?
Yes, if the OHFA appears that it will pass. The OHFA and current leave of absence policies may affect other polices contained in the employer handbook, including: sick leave accumulation, sick leave use, call-off, attendance bonus, no-fault attendance, medical certification, independent medical examination, and FMLA leave policies (if applicable).
22. What does the OHFA prohibit employers from doing?
23. What damages are employees entitled to if an employer interferes with an employee’s rights under the OHFA?
Employees are entitled to any wages, salary or benefits denied as a result of the violation, or if no wages, salary or benefits were denied, other monetary losses suffered by the employee as a result of the violation. Employees are also entitled to interest on the amount awarded, treble damages based on the amount awarded, and reasonable attorneys’ fees. R.C. 4114.11.
24. How long do employees have to file a lawsuit for a violation of the OHFA?
Probably six years. Since the OHFA does not provide a statute of limitations or a limit on the time an employee may file a lawsuit, a default statute of limitations should determine the amount of time an employee has to file a lawsuit. Under Ohio law, the default statute of limitations for claims arising out of a violation of a statute is six years. R.C. 2305.07. [1]
25. As an employer, am I ready for the OHFA?
No. Not until you attend a free breakfast seminar provided by Zashin and Rich Co., L.P.A. on Thursday, September 18, 2008 from 9:00 a.m. to 12:00 p.m. Employers attending the seminar will gain knowledge on topics including, but not limited to:
[1] The answers to these 25 questions are based on information now available. The answers to these questions do not constitute legal advice and may change based on events that take place between now and the election on November 4, 2008 or the effective date of the OHFA. Further, the OHFA charges the Ohio Department of Commerce with implementing clarifying regulations regarding the OHFA. These regulations, if promulgated, may also impact and change the above answers.
*Stephen Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in both defending employers in leave of absence litigation and assisting employers with leave of absence compliance.
*Patrick Watts is an OSBA Certified Specialist in Labor and Employment Law with a focus on leave of absence litigation and compliance.
For more information about the OHFA or leave of absence policies, please contact Stephen Zashin (ssz@zrlaw.com) at 216.696.4441.
The Ohio Healthy Families Act (“OHFA”) likely will appear on the ballot on November 4, 2008. To prepare for drastic changes proposed by the OHFA, each Ohio employer must answer the following questions before it can even begin to understand its obligations and potential liabilities under the OHFA. The vote on OHFA is coming, and if it passes on November 4, Ohio employers must be prepared to navigate the new employment landscape it will create.
1. Which employers are required to comply with the OHFA?
All private employers with 25 or more employees must comply with the OHFA. All public employers must comply with the OHFA including the State and all of its political subdivisions regardless of their number of employees. R.C. 4114.01(B).
2. Are part-time employees included in the calculation to determine if an employer is covered by the OHFA?
Yes. The definition of employee includes part-time employees. Therefore, if a private employer employs 20 full-time employees and five part-time employees, the OHFA likely would cover the employer. R.C. 4114.01(B).
3. Does the OHFA apply to temporary and leased employees?
Yes. The OHFA uses the definition of employees from the Fair Labor Standards Act (“FLSA”). Temporary employees and leased employees constitute employees under the FLSA.
4. How much PAID sick leave do employers have to provide their employees under the OHFA?
Employees who work 30 hours or more per week are entitled to at least seven PAID sick days per year. R.C. 4114.02(A)(1). Employees who work less than 30 hours per week (or less than 1,560 hours per year) are entitled to at least a pro rata amount of PAID sick leave. For example, an employee who regularly works 15 hours per week is entitled to at least 3.5 days of sick leave per year. R.C. 4112.02(A)(2).
5. How should an employer calculate the amount of leave an employee accumulates when the employee’s schedule and work hours vary?
For employees whose weekly schedule varies
(e.g., temporary employees, seasonal employees, etc.), the OHFA requires
employers to use the weekly average of hours worked over the preceding
12 weeks to determine the minimum amount of sick leave to which the
employee is entitled. R.C. 4114.02(E).
6. How frequently must an employer provide new sick leave?
Sick leave must accrue at least monthly. R.C. 4114.02(B).
7. Does sick leave carry over from year to year?
Yes. The OHFA requires employers to carry over accumulated sick leave from year to year. R.C. 4114.02(C). However, the OHFA provides that employers are not required to permit an employee to “accumulate” more than seven sick days “per year.” R.C. 4114.02(C). It is unclear whether the OHFA entitles employees to use more than seven sick days per year. OHFA proponents contend that the OHFA does not require employers to permit employees to bank accumulated sick leave indefinitely. Rather, they contend that employees are entitled to carry over up to seven days of sick leave from year to year, but employers are not required to allow employees to accumulate more than seven accumulated but unused days of sick leave at any one time. Importantly, under Ohio’s rules of statutory interpretation, the OHFA proponents’ interpretations will not bind the courts.
To illustrate the issues raised by OHFA’s carry over provision, consider an employer having a 30-hour per week employee whose sick day accumulation commences on January 1, 2009. The employer has a policy which states that employees accumulate sick leave on the first day of every month. The employee will accumulate seven sick days through December 1, 2009. If this employee uses no sick leave in 2009, under the OHFA, all seven sick days will carry over to 2010 and be available for use. This employee likely will not accumulate any sick leave days on January 1, 2010, because employees cannot accumulate more than seven sick days within any consecutive 12 months. If between January 20-27, 2010, the employee uses all seven sick days, he or she will have no “accumulated” sick days. However, because sick days accumulate at least monthly, and under the employer’s policy on the first day of each month, the employee will accumulate .5834 sick days for use on February, 1, 2010. The employee could use sick days as the sick days accumulate. If that same employee did not use any sick leave through December, 2010, on December, 2, 2010, the employee would have accumulated 6.4174 sick days all of which he or she could use in December 2010. The chart below illustrates this example:
2010 (Month)
|
Jan.
|
Feb.
|
Mar.
|
Apr.
|
May
|
Jun.
|
Jul.
|
Aug.
|
Sep.
|
Oct.
|
Nov.
|
Dec.
|
Sick Days
Carried Over From 2009 |
7
|
|||||||||||
Sick Days
Earned During Month |
0
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
Sick Days
Used During Month |
7
|
|||||||||||
Accumulated
Sick Days at end of Month |
0
|
.5834
|
1.1668
|
1.7502
|
2.3336
|
2.917
|
3.5004
|
4.0838
|
4.6672
|
5.2506
|
5.834
|
6.4174
|
8. Can employees take leave in increments of leave smaller than a full day?
Yes. Employees may receive sick leave that is less than a normal workday. If employees are entitled to receive leave in an increment less than a normal workday, the leave is counted on an hourly basis, or in the smallest increment that the employer’s payroll system uses to track other absences or leaves, whichever is smaller. For example, if the employer tracks Family Medical Leave Act (“FMLA”) leave time in one-hour increments, then the employer must award and track sick leave in one-hour increments. R.C. 4114.02(D).
9. For what purposes may sick leave be used?
Under the OHFA, sick leave may be used for three purposes: (1) Employees may take sick leave for an absence resulting from his or her own physical or mental illness, injury, or medical condition. R.C. 4114.03(A)(1). (2) Employees may take sick leave for an absence resulting from his or her own obtaining professional medical diagnosis or care, or preventive medical care. R.C. 4114.03(A)(2). (3) Employees may take sick leave for an absence for the purpose of caring for a child, parent, or spouse who has any of the conditions, or needs diagnosis or care, as described in paragraphs (1) or (2). R.C. 4114.03(A)(3).
10. Are employers required to permit employees to use sick leave for elective surgery?
Unclear. Under the FMLA, employers are not required to provide FMLA leave to employees who undergo elective surgery. However, the OHFA does not state whether employers are required to provide sick leave to employees who undergo elective surgery. Elective surgeries may constitute a medical condition under the OHFA which would require employers to provide sick leave to employees who undergo elective surgeries. R.C. 4114.03(A)(1)-(3).
11. Are employees required to mention the “Ohio Healthy Families Act” when requesting sick leave?
No. When requesting sick leave, employees must state only (1) the reason for his or her absence; and, (2) the expected duration of his or her absence. R.C. 4114.03(C).
12. How much advance notice does an employee have to give to use sick leave?
Generally, employees should notify employers as soon as possible. If the employee knows at least seven days in advance of the need to use sick leave, then the OHFA requires employees to ask for sick leave at least seven days in advance. If the employee does not know of the need to use sick leave more than seven days in advance, then the OHFA requires employees to inform the employer as soon as possible. R.C. 4114.03(C).
13. Can an employer require an employee to provide a doctor’s note supporting the employee’s need for sick leave?
Only in limited circumstances. An employer can require an employee to provide a certification supporting the need for leave from a health care professional only if the duration of the leave is more than three consecutive work days. If the duration of the sick leave is three consecutive work days or less, then the employer may not require that the employee provide a doctor’s note. R.C. 4114.04(A).
14. If an employer requests a doctor’s note, when must the employee provide it?
Employees have up to 30 days from the first day of leave to provide the doctor’s note. R.C. 4114.04(B). This provision may limit an employer’s ability to require employees to return FMLA certifications within 15 days from the employer’s request.
15. How does the OHFA affect employers with collective bargaining agreements?
The OHFA has substantial ramifications for both private sector and public sector employers subject to collective bargaining agreements (“CBA”). The issues affected include: call-off procedures, certification procedures, independent medical examination procedures, return-to-work certifications, sick leave incentive provisions, employee evaluations, and employee disciplinary actions. Pursuant to R.C. 4117.10(A), it is likely that Ohio’s Public Employee Collective Bargaining Act (R.C. 4117.01 et seq.) supersedes the OHFA. However, under Ohio law, if a public employee CBA is silent regarding a right or entitlement created by the OHFA, it is possible that the OHFA’s terms will apply to covered public employees. Employers should review their specific CBA’s to make definitive determinations as to these issues.
16. May employers count sick leave against a no-fault attendance policy?
No. The OHFA prohibits employers from
using paid sick leave as a negative factor or counting paid sick leave
under a no-fault attendance policy. R.C. 4141.10(C)(2)-(3).
17. May employers count sick leave against an employee attendance bonus program?
Probably not. The OHFA prohibits employers from using paid sick leave as a negative factor. Counting paid sick leave absences against an employee attendance bonus program is similar to counting paid sick leave against a no-fault attendance policy. Therefore, an employer would likely violate this provision by counting a paid sick leave absence against an employee for purposes of an employee attendance bonus program.
18. Are employers required to pay out remaining sick leave at the end of an employee’s employment?
Not unless the employer’s policy requires it. The OHFA does not require that employees receive compensation for remaining sick leave when their employment ends. However, employers who elect not to pay out accumulated but unused sick leave should have a written policy which expressly states that the employer will not pay unused sick leave at the end of employment.
19. If the OHFA passes, when does it become effective?
If the OHFA passes, the majority of the provisions will become effective on December 4, 2008. See Ohio Constitution, Article II, Section 1b.
However, the OHFA suggests that one component of the OHFA may operate retroactively to the date of enactment, which would occur on November 4, 2008 (presuming that the OHFA passes). R.C. 4114.07(C). The OHFA specifically states that employers may not eliminate or reduce any type of leave in existence on the date of enactment. R.C. 4114.07(C). If the OHFA passes, the date of enactment will occur on November 4, 2008. Therefore, any employer who wishes to reduce the amount of any leave provided under its current policy should act before November 4, 2008.
20. Will a Paid Time Off (“PTO”) only leave policy violate the OHFA?
Probably. The OHFA states that employers are not required to modify a leave policy as long as the leave policy offers employees, at their discretion, the equivalent to the sick leave mandated in the OHFA. However, if an employee uses all of his or her PTO days for reasons unrelated to sick leave, it is unclear whether the employer must then provide an additional seven days specifically for sick leave. In addition, if the PTO leave accrues on an annual basis, rather than on a monthly basis, the failure to accumulate sick leave on a monthly basis also appears to violate the OHFA.
21. Should an employer update its employee handbook?
Yes, if the OHFA appears that it will pass. The OHFA and current leave of absence policies may affect other polices contained in the employer handbook, including: sick leave accumulation, sick leave use, call-off, attendance bonus, no-fault attendance, medical certification, independent medical examination, and FMLA leave policies (if applicable).
22. What does the OHFA prohibit employers from doing?
The OHFA prohibits employers from
interfering with, restraining or denying the exercise of or attempted
exercise of any rights established under the OHFA. Further, employers
cannot discharge or discriminate against any employee for opposing an
action that is made unlawful by the OHFA. R.C. 4114.10(B).
23. What damages are employees entitled to if an employer interferes with an employee’s rights under the OHFA?
Employees are entitled to any wages, salary or benefits denied as a result of the violation, or if no wages, salary or benefits were denied, other monetary losses suffered by the employee as a result of the violation. Employees are also entitled to interest on the amount awarded, treble damages based on the amount awarded, and reasonable attorneys’ fees. R.C. 4114.11.
24. How long do employees have to file a lawsuit for a violation of the OHFA?
Probably six years. Since the OHFA does not provide a statute of limitations or a limit on the time an employee may file a lawsuit, a default statute of limitations should determine the amount of time an employee has to file a lawsuit. Under Ohio law, the default statute of limitations for claims arising out of a violation of a statute is six years. R.C. 2305.07. [1]
25. As an employer, am I ready for the OHFA?
No. Not until you attend a free breakfast seminar provided by Zashin and Rich Co., L.P.A. on Thursday, September 18, 2008 from 9:00 a.m. to 12:00 p.m. Employers attending the seminar will gain knowledge on topics including, but not limited to:
- leave of absence mandates;
- which employees are entitled to leave;
- what employees have to do to receive leave;
- what information employers can request from employees;
- how employers can protect themselves from liability under the proposed law;
- what information employers have to provide employees;
- what records employers have to maintain;
- what can be done to manage the use of employee sick leave; and,
- whether and how employers should change their leave of absence policies.
[1] The answers to these 25 questions are based on information now available. The answers to these questions do not constitute legal advice and may change based on events that take place between now and the election on November 4, 2008 or the effective date of the OHFA. Further, the OHFA charges the Ohio Department of Commerce with implementing clarifying regulations regarding the OHFA. These regulations, if promulgated, may also impact and change the above answers.
*Stephen Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in both defending employers in leave of absence litigation and assisting employers with leave of absence compliance.
*Patrick Watts is an OSBA Certified Specialist in Labor and Employment Law with a focus on leave of absence litigation and compliance.
For more information about the OHFA or leave of absence policies, please contact Stephen Zashin (ssz@zrlaw.com) at 216.696.4441.
Thursday, June 26, 2008
Supreme Court Places Burden On Employer to Prove Reasonableness
*By Jason Rossiter
The U.S. Supreme Court recently ruled that an employer implementing a reduction in force (“RIF”) must rely on a “reasonable” factor in selecting employees for termination when defending against a claim of age discrimination. The Court held that an employer relying on a statutory exception to liability in a lawsuit brought pursuant to the Age Discrimination in Employment Act (“ADEA”) bears both the burden of production and persuasion when arguing that employment practices that have a disparate impact on older workers are based on “reasonable factors other than age.” In Meacham v. Knolls Atomic Power Laboratory, the Court resolved split authority among lower appellate courts that were divided on whether the employer has the burden of persuasion, in addition to the burden of production, with respect to the reasonableness of the exception.
In Meacham, the employer instituted a RIF, identifying affected employees based on its managers’ assessments of individual employees’ performance, flexibility, and critical skills. Subsequent to the RIF, 28 employees filed suit against the employer alleging that this criteria resulted in illegal disparate impact under the ADEA. 27 of the 28 employees were 40 years of age or older, the statutory minimum for protection under the statute.
The jury found in favor of the plaintiffs on their disparate impact claim. On remand, the Second Circuit reversed, finding that the employees failed to carry their burden of showing that the factors used by the employer were unreasonable. The Supreme Court reversed, holding that the employer had the burden of persuasion with respect to the “reasonableness” of the factors it used to select the employees affected by the RIF, and that the Second Circuit Court erred by placing the burden on the employees.
The Court based its decision on its reading of the ADEA and interpretation that the “reasonable factors other than age” exception is an affirmative defense, placing the burden of persuasion on the employer/defendant. The Court looked to previous decisions which held that similar exceptions provided by the statute, such as “where age is a bona fide occupational qualification,” was likewise an affirmative defense subject to the employer’s burden.
The Court concluded by noting that, while an employer will likely have to provide more convincing evidence that it selected employees for the RIF by “reasonable factors other than age,” an employee must still “isolate and identify the specific employment practices that are allegedly responsible for any observed statistical disparities.” The Court reasoned that “[i]dentifying a specific practice is not a trivial burden,” and this requirement should allay concerns by employers that its decision will encourage frivolous litigation.
Clearly, the Court’s decision requires that employers develop and prove reasonable criteria in the event of future age discrimination litigation in the wake of a RIF.
*Jason Rossiter has extensive experience representing employers in litigating and arbitrating workplace disputes in Ohio, California and throughout the country. For more information about age discrimination or any other employment-related tort, please contact Zashin & Rich at 216.696.4441.
The U.S. Supreme Court recently ruled that an employer implementing a reduction in force (“RIF”) must rely on a “reasonable” factor in selecting employees for termination when defending against a claim of age discrimination. The Court held that an employer relying on a statutory exception to liability in a lawsuit brought pursuant to the Age Discrimination in Employment Act (“ADEA”) bears both the burden of production and persuasion when arguing that employment practices that have a disparate impact on older workers are based on “reasonable factors other than age.” In Meacham v. Knolls Atomic Power Laboratory, the Court resolved split authority among lower appellate courts that were divided on whether the employer has the burden of persuasion, in addition to the burden of production, with respect to the reasonableness of the exception.
In Meacham, the employer instituted a RIF, identifying affected employees based on its managers’ assessments of individual employees’ performance, flexibility, and critical skills. Subsequent to the RIF, 28 employees filed suit against the employer alleging that this criteria resulted in illegal disparate impact under the ADEA. 27 of the 28 employees were 40 years of age or older, the statutory minimum for protection under the statute.
The jury found in favor of the plaintiffs on their disparate impact claim. On remand, the Second Circuit reversed, finding that the employees failed to carry their burden of showing that the factors used by the employer were unreasonable. The Supreme Court reversed, holding that the employer had the burden of persuasion with respect to the “reasonableness” of the factors it used to select the employees affected by the RIF, and that the Second Circuit Court erred by placing the burden on the employees.
The Court based its decision on its reading of the ADEA and interpretation that the “reasonable factors other than age” exception is an affirmative defense, placing the burden of persuasion on the employer/defendant. The Court looked to previous decisions which held that similar exceptions provided by the statute, such as “where age is a bona fide occupational qualification,” was likewise an affirmative defense subject to the employer’s burden.
The Court concluded by noting that, while an employer will likely have to provide more convincing evidence that it selected employees for the RIF by “reasonable factors other than age,” an employee must still “isolate and identify the specific employment practices that are allegedly responsible for any observed statistical disparities.” The Court reasoned that “[i]dentifying a specific practice is not a trivial burden,” and this requirement should allay concerns by employers that its decision will encourage frivolous litigation.
Clearly, the Court’s decision requires that employers develop and prove reasonable criteria in the event of future age discrimination litigation in the wake of a RIF.
*Jason Rossiter has extensive experience representing employers in litigating and arbitrating workplace disputes in Ohio, California and throughout the country. For more information about age discrimination or any other employment-related tort, please contact Zashin & Rich at 216.696.4441.
Tuesday, June 3, 2008
EMPLOYMENT LAW QUARTERLY | Spring 2008, Volume X, Issue ii
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The Seventh Circuit Court of Appeals recently upheld summary judgment in favor of an employer that terminated a married couple where each spouse failed to provide timely medical certification for their absences in accordance with the employer’s federal Family and Medical Leave Act (“FMLA”) policy. In Townsend-Taylor v. Ameritech Services, Inc., the employer terminated both Diedre Townsend-Taylor and her husband, Ronnie, due to excessive unexcused absences.
Though Ameritech conceded that it could not shirk its responsibilities under the FMLA by outsourcing the administration of its policy, Ameritech contracted with an entity – FMLA Processing Unit (“FPU”) – to administer its FMLA claims. Consistent with FPU’s policy, an Ameritech employee who requests FMLA leave is given a “Certification of Health Care Provider” form and is told that his doctor must submit the completed form to FPU within 15 days, the minimum time employers must afford employees under the FMLA, “unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts.” See 29 C.F.R. § 825.305(b). In practice, FPU gave employees 20 days before it considered the certification untimely.
In 2004, Ronnie Taylor missed several days of work to care for his child who had an infection. Upon his return on May 3, he requested FMLA leave and was given a Certification form. When FPU had not received a completed form on May 24, it issued a notice of denial of his FMLA leave request. The notice also provided that Ronnie would have an additional 15 days to submit proof of extenuating circumstances for his failure to timely file the Certification.
During the 15-day period for proof of extenuating circumstances, the child’s doctor sent FPU a letter indicating that he had either faxed directly to FPU or given to the child’s parents a completed Certification form on “at least 3 separate occasions.” FPU denied that it had received the Certification form. Ronnie suggested that he had used his wife’s form, crossing out her name and replacing it with his, when submitting the Certification to the child’s physician. In addition to the employee’s name, the preprinted form contained a barcode identifying the Ameritech employee. Ronnie speculated that, because he had used his wife’s form, the Certification was placed in her file and not his own. The Certification form was never found in Diedre’s FMLA file.
The Court was not persuaded. Finding the doctor and Ronnie’s speculation questionable (“it is hardly likely that he handed the same form to the parents three times”), the Court concluded that – by knowingly using the wrong form, his wife’s – Ronnie admittedly did not comply with FPU’s Certification requirement. The Court further rejected Ronnie’s argument that Ameritech should have allowed him to resubmit the physician’s Certification following the May 24 notice, holding that by allowing Ronnie to provide “the Certification within a new, extended deadline – a scenario that could, in theory, repeat itself ad infinitum … a ‘deadline’ (under the Regulations) would have no meaningful significance and no actual consequence.”
The Court similarly dismissed Ronnie’s claims that the FMLA policy – which required completion of the Certification by the medical provider – interfered with his FMLA rights. The Court reasoned that an employee could forge and/or embellish a doctor’s letter. By requiring the provider to complete the form, the employer permissibly adopted, “reasonable, non-burdensome measures for preventing fraud. Reasonable measures are not interferences with rights.” The Court concluded that if Ronnie was unsure as to whether his child’s doctor had submitted the form, he was within his rights prior to the expiration of the 20-day deadline to check with FPU to make sure that the completed form arrived. “If it has not arrived, he can obtain an extension of time sufficient to enable him to assure FPU’s receipt of the form. If his doctor does not cooperate – suppose he’s on vacation and as a result unable to submit the medical certification in time – that would be an extenuating circumstance that could excuse missing the deadline.”
Like her husband, Diedre similarly failed to adhere to FPU’s policy relative to the FMLA medical certification requirement. Mrs. Taylor missed several days of work due to an undisclosed back problem. Upon her return to Ameritech, she requested FMLA leave and received a Certification form. “She waited 12 days after receiving the form to give it to her doctor, who did not get the completed form to FPU for another nine days, with the result that Mrs. Taylor missed the deadline” by a single day. In the notice denying her FMLA leave, FPU provided Diedre 15 days to establish extenuating circumstances for the failure to timely file the Certification form. During that period, Diedre’s physician explained that her delay in returning the form resulted from the fact that she only worked two days per week.
For her part, Diedre testified that the day she presented the form to her doctor - 12 days after receiving it – was her first day off since returning to work. She also testified that her work hours were the same as the clinic where she was treated, from about 8:00 a.m. to 4:30 p.m. She later admitted, however, that the clinic would open as early as 7:00 a.m. and that she could have easily dropped the form off on her way to work. The Court dismissed Diedre’s excuses and held that, even if her work hours mimicked the clinic’s hours and her doctor was only available two days per week, she could have called the clinic and made arrangements to get the form to her doctor.
The Court further held that Ameritech’s response to Diedre missing the deadline by one day was “harsh” but that “hers was a case of the last straw. She had a history of failed attempts to justify absences as being authorized by the FMLA. Both Taylors were problem employees, and Ameritech was not required to exhibit more patience than the law and its own rules required.” The Court further concluded that “it is most unlikely that the back condition that precipitated her application for FMLA leave was a ‘serious health condition,’” as there was no evidence she suffered from a chronic serious health condition and “it appears that she missed only three days of work.”
As demonstrated by the holding of the Seventh Circuit, an employer may enforce reasonable time limits on an employee’s submission of FMLA medical certification. Absent timely submission of the certification – assuming no evidence of extenuating circumstances – an employer may treat the absence as an unapproved absence and impose discipline up to and including termination.
*Stephen Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in defending employers in FMLA litigation, as well as counseling employers on FMLA compliance. For more information about medical certifications or other questions about the Family and Medical Leave Act, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
Advanced communication technology is becoming increasingly commonplace among all types of industries and employers. From virtual private networking (“VPN”) applications that allow employees a secure “log in” to their company’s server from a remote location using an internet connection, to company email becoming accessible anywhere, anytime with the use of a web-based interface, employees have more options available to them today to work from anywhere around the globe. Employers make work communications even easier when they provide their employees with a personal digital assistant, or PDA, such as a Treo, BlackBerry, or iPhone.
Oftentimes, employees with these devices and access to company technology “after hours” are exempt from federal Fair Labor Standards Act (“FLSA”) and state regulations relative to overtime and the minimum wage. These include those employees that satisfy Department of Labor (“DOL”) criteria for “exempt” employees and pass three “tests” depending on (a) how much they are paid, (b) how they are paid, and (c) what kind of work they do. Exempt employees must be paid on a salary basis, must make at least $455 a week, and must perform exempt job duties such as executive, professional, and administrative functions. Determining whether an employee is exempt requires a case-by-case analysis of the employee’s job duties consistent with DOL guidance. While some job classifications (attorneys and other professionals, for example) are almost always exempt, others are not as clear (inside sales people are usually not exempt, while outside sales people are; similarly, while registered nurses are exempt, licensed practical nurses are not). When job duties overlap (a licensed engineer performing inside sales work, for example), an employer must analyze the employee’s position to determine whether or not the FLSA and state overtime and minimum wage requirements apply.
These considerations come into play when dealing with the case of a nonexempt employee that has access to company e-mail from home and/or is issued a PDA. A common example is the nonexempt clerical worker who checks and sends email from home either before or after work. When workers are given PDAs – with unfettered access to company communications at all hours – the situation can become even more problematic. The FLSA requires employers to compensate nonexempt employees for any time spent on work-related tasks, even if those tasks involve checking and responding to e-mail from the comfort of a living room couch. Prudent employers should articulate clear policies to ensure that they comply with overtime and minimum wage requirements.
To avoid paying overtime, employers should have a policy in place that nonexempt employees may not check e-mail or return phone calls outside of normal business hours unless they have advanced authorization. Absent approval, employees should not work these hours. When a nonexempt employee violates this policy, the employer should reprimand the employee consistent with company policy. The employer must, however, pay the employee in accordance with the FLSA for the overtime that the employee worked.
Conversely, if an employer wants nonexempt employees to respond to phone calls or emails outside of regular working hours, the employer should have a system in place that requires employees to properly track their time. Such a system should facilitate paying employees for all hours worked. Either way, employers should implement a clear policy and make sure that it universally enforces that policy. The worst thing for an employer to do is to recognize that nonexempt employees are checking e-mail and returning phone calls outside of regular working hours and ignore it.
Additionally, employers should think carefully about which company employees are given outside access to the company server and email via a PDA. To limit liability, employers should only make the devices available to those employees who actually need them. The great majority of employees who utilize this technology are exempt; however, as these practices become more common and nonexempt employees are “wired” through a PDA or home computer, employers should be wary of potential wage and hour violations.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of employment litigation and wage and hour compliance and administration. For more information concerning compliance with any aspect of the FLSA, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
The great majority of employment discrimination lawsuits and administrative charges result following the termination of an employee’s employment. When an employee loses his/her job, the ex-employee has an increased economic incentive to consult with a plaintiff’s attorney and/or pursue litigation or administrative relief and loses the disincentive to litigation inherent in an ongoing employer-employee relationship. Moreover, the employee’s hurt feelings resulting from a sudden job loss can contribute to feelings of vengeful retaliation against the employer – justified or not – causing the employee to seek retribution in a legal forum.
The best defense against an employment discrimination and/or wrongful discharge lawsuit is developed prior to or at the time of termination, not after the lawsuit is filed. To that end, prudent employers should take steps to both avoid litigation and carefully execute the termination so as to increase their chances of defeating a discharged employee’s claims.
NO SURPRISES. Throughout an employee’s employment, employers should conduct regular performance evaluations and implement an objective system of discipline that includes documented reports of performance deficiencies. In addition, employers should clearly communicate their employment policies to employees, including any employee handbook, harassment policy, and the employee’s job description. Documents evidencing an employee’s employment history are vital to support an employer’s non-discriminatory motive for terminating an employee’s employment.
Immediately before terminating an employee, employers should consider suspending the employee to investigate any specific incidents that give rise to the termination. Employers have broad authority to conduct internal investigations. Employers should take advantage of this right, talk to as many supervisors, co-workers, and subordinates as necessary to learn all of the relevant facts.
Most importantly, employers should allow the subject employee an opportunity to respond prior to the official termination. The employee may admit some, most, or all of the accusations, and provide useful admissions that may benefit the employer in future litigation. Even if the employee admits nothing, the employer can limit the employee to one set of facts. It is better for employers to hear the employee’s side of story before a possible deposition, months if not years following the termination.
TELL THE TRUTH. The best advice an employer can follow when terminating an employee is to give an honest reason for the employee’s termination. This is not moral guidance, but sound legal counsel. As the saying goes, no good deed goes unpunished. Rather than identifying an employee’s performance deficiencies as the catalyst for his termination, an employer might choose to “soften the blow” and tell the employee that he is being let go due to a reduction in force, or an economic lay off. This is a common mistake. The worst thing that an employer can do when terminating an employee is to give a dishonest reason for the termination that later will be cited as “pretext” for discrimination, retaliation, and/or wrongful discharge.
The communicated reason for the termination should also mirror the employee’s documented performance deficiencies. Having a good reason for termination is not enough – the employer’s statements and documentation must square with that good reason, and contrary statements or documentation will work against it.
BE PROFESSIONAL AND BE PREPARED. While an employer should speak truthfully when discharging an employee, employers should not use the opportunity to be gratuitously cruel or mean-spirited. “Rubbing it in” does no good for the employer and can create hard feelings on the part of the employee that can later result in an administrative charge or employment litigation. The difference between having a lawsuit and not having one may result from how the employer communicated the discharge.
Prior to a termination meeting, employers should keep news of an employee’s impending discharge private and not allow the decision to “leak” out among the workforce. News of a termination should come from the employee’s direct manager or supervisor at the end of the work day, in a private meeting with a witness (an HR employee or other manager), with minimal disruption to other employees.
At the termination meeting, employers should be firm and professional, but compassionate and respectful. Employers should summarize reasons for the termination and use specific examples. While employers should welcome questions and explain their rationale, they should avoid debating the decision with the employee.
TIE UP LOOSE ENDS. First, employers must make sure that the employee receives all owed compensation. Wage and hour litigation has increased rapidly and substantively favors the employee. Employees can often collect double or triple damages, costs of litigation, attorneys’ fees, and civil and criminal fines.
Second, employers should review and comply with any agreements they have with the employee. While most employees are “at will,” some employees have an employment contract or other agreement such as a non-competition/non-solicitation agreement. When planning for a termination, employers should review their obligations pursuant to these contracts and ensure that their actions comply with such agreements. Employers should also inform discharged employees of any ongoing obligations following the termination, such as a continued duty to protect the employers’ trade secrets.
Finally, depending on the circumstances, employers should consider offering severance pay in exchange for a release of claims from the employee. In some situations, offering a few weeks’ salary for the employee to waive any right to future litigation might save the employer thousands of dollars in litigation costs. Employers should ensure that their release documents are up to date and include any possible claims the employee might have.
In the end, it is impossible to predict the future with respect to litigation arising from an employee’s termination. Employers should plan and execute terminations carefully, however, to minimize their risk and exposure to litigation, and to maximize their chances of winning potential claims and lawsuits.
A recent study by the Families and Work Institute (“FWI”) found that many employers fail to comply with the federal Family and Medical Leave Act (“FMLA”). Interestingly, the difference between large employers (18%) – those with more than 1,000 employees – and small employers (21%) that failed to comply with the FMLA was statistically insignificant.
The FMLA requires covered employers, those with 50 or more employees within a 75-mile radius, to provide at least 12 weeks unpaid leave and job restoration benefits to covered employees in certain circumstances such as the employee and/or family member’s serious health condition, the birth of a child, or adoption and/or foster-care placement. In addition, the FMLA was recently expanded to include “qualifying exigencies,” as that term is to be defined by the Department of Labor, related to military service.
The 2008 National Study of Employers conducted by the FWI found that 24% of covered employers did not offer at least 12 weeks of paternity leave; 15% did not offer at least 12 weeks of maternity leave; 19% did not offer adoption and/or foster-care leave; and 16% did not offer FMLA benefits to their employees for the care of an employee’s spouse or children with serious health conditions.
Employers – especially growing employers who, as they add employees, become covered employers under the FMLA – should regularly update their leave policies and train their human resource personnel to ensure that they are complying with the FMLA. Moreover, employers with covered employees in different states must be aware of and comply with various state laws that may require both paid and unpaid leave. Finally, all covered employers should have their current FMLA policies updated to comply with the recently passed National Defense Authorization Act.
Upcoming Speaking Engagements
June 19, 2008
Steve Dlott will present “Defending Workers’ Compensation Claims” to the Lake/Geauga Chapter of the Society for Human Resource Management (“SHRM”) as part of the “Effective HR – It’s All About People!” workshop on June 19, 2008 at the Radisson Hotel/Eastlake. For more information or to register, call (440) 392-2168 or email: info@lgashrm.org.
June 23, 2008
George Crisci will speak at the 8th Annual Northern Ohio Labor & Employment Law Conference at the Cleveland Metropolitan Bar Association on June 23, 2008. George will present “Public Collective Bargaining Developments” to the conference.
October 16 and 17, 2008
George Crisci and Stephen Zashin will speak at the 45th Annual Midwest Labor and Employment Law Seminar presented by the Ohio State Bar Association October 16 and 17, 2008 in Columbus. George will present “Public Collective Bargaining Developments” to the conference and Stephen will present an update on FMLA and other leave law.
Stephen Zashin admitted to the New York Bar Stephen Zashin was admitted to the New York State Bar and to the bar of the federal district court for the Southern District of New York.
- TIMELINESS: Seventh Circuit Upholds 15-Day FMLA Medical Certification Requirement
- “It’s For Work!!” – Can a PDA Lead to Unintended Overtime Consequences?
- LET YOU GO: How to Avoid Litigation When Terminating an Employee
- SURVEY SAYS – Some Employers Not Complying With The FMLA
- Z&R Shorts
TIMELINESS: Seventh Circuit Upholds 15-Day FMLA Medical Certification Requirement
By Stephen S. Zashin*The Seventh Circuit Court of Appeals recently upheld summary judgment in favor of an employer that terminated a married couple where each spouse failed to provide timely medical certification for their absences in accordance with the employer’s federal Family and Medical Leave Act (“FMLA”) policy. In Townsend-Taylor v. Ameritech Services, Inc., the employer terminated both Diedre Townsend-Taylor and her husband, Ronnie, due to excessive unexcused absences.
Though Ameritech conceded that it could not shirk its responsibilities under the FMLA by outsourcing the administration of its policy, Ameritech contracted with an entity – FMLA Processing Unit (“FPU”) – to administer its FMLA claims. Consistent with FPU’s policy, an Ameritech employee who requests FMLA leave is given a “Certification of Health Care Provider” form and is told that his doctor must submit the completed form to FPU within 15 days, the minimum time employers must afford employees under the FMLA, “unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts.” See 29 C.F.R. § 825.305(b). In practice, FPU gave employees 20 days before it considered the certification untimely.
In 2004, Ronnie Taylor missed several days of work to care for his child who had an infection. Upon his return on May 3, he requested FMLA leave and was given a Certification form. When FPU had not received a completed form on May 24, it issued a notice of denial of his FMLA leave request. The notice also provided that Ronnie would have an additional 15 days to submit proof of extenuating circumstances for his failure to timely file the Certification.
During the 15-day period for proof of extenuating circumstances, the child’s doctor sent FPU a letter indicating that he had either faxed directly to FPU or given to the child’s parents a completed Certification form on “at least 3 separate occasions.” FPU denied that it had received the Certification form. Ronnie suggested that he had used his wife’s form, crossing out her name and replacing it with his, when submitting the Certification to the child’s physician. In addition to the employee’s name, the preprinted form contained a barcode identifying the Ameritech employee. Ronnie speculated that, because he had used his wife’s form, the Certification was placed in her file and not his own. The Certification form was never found in Diedre’s FMLA file.
The Court was not persuaded. Finding the doctor and Ronnie’s speculation questionable (“it is hardly likely that he handed the same form to the parents three times”), the Court concluded that – by knowingly using the wrong form, his wife’s – Ronnie admittedly did not comply with FPU’s Certification requirement. The Court further rejected Ronnie’s argument that Ameritech should have allowed him to resubmit the physician’s Certification following the May 24 notice, holding that by allowing Ronnie to provide “the Certification within a new, extended deadline – a scenario that could, in theory, repeat itself ad infinitum … a ‘deadline’ (under the Regulations) would have no meaningful significance and no actual consequence.”
The Court similarly dismissed Ronnie’s claims that the FMLA policy – which required completion of the Certification by the medical provider – interfered with his FMLA rights. The Court reasoned that an employee could forge and/or embellish a doctor’s letter. By requiring the provider to complete the form, the employer permissibly adopted, “reasonable, non-burdensome measures for preventing fraud. Reasonable measures are not interferences with rights.” The Court concluded that if Ronnie was unsure as to whether his child’s doctor had submitted the form, he was within his rights prior to the expiration of the 20-day deadline to check with FPU to make sure that the completed form arrived. “If it has not arrived, he can obtain an extension of time sufficient to enable him to assure FPU’s receipt of the form. If his doctor does not cooperate – suppose he’s on vacation and as a result unable to submit the medical certification in time – that would be an extenuating circumstance that could excuse missing the deadline.”
Like her husband, Diedre similarly failed to adhere to FPU’s policy relative to the FMLA medical certification requirement. Mrs. Taylor missed several days of work due to an undisclosed back problem. Upon her return to Ameritech, she requested FMLA leave and received a Certification form. “She waited 12 days after receiving the form to give it to her doctor, who did not get the completed form to FPU for another nine days, with the result that Mrs. Taylor missed the deadline” by a single day. In the notice denying her FMLA leave, FPU provided Diedre 15 days to establish extenuating circumstances for the failure to timely file the Certification form. During that period, Diedre’s physician explained that her delay in returning the form resulted from the fact that she only worked two days per week.
For her part, Diedre testified that the day she presented the form to her doctor - 12 days after receiving it – was her first day off since returning to work. She also testified that her work hours were the same as the clinic where she was treated, from about 8:00 a.m. to 4:30 p.m. She later admitted, however, that the clinic would open as early as 7:00 a.m. and that she could have easily dropped the form off on her way to work. The Court dismissed Diedre’s excuses and held that, even if her work hours mimicked the clinic’s hours and her doctor was only available two days per week, she could have called the clinic and made arrangements to get the form to her doctor.
The Court further held that Ameritech’s response to Diedre missing the deadline by one day was “harsh” but that “hers was a case of the last straw. She had a history of failed attempts to justify absences as being authorized by the FMLA. Both Taylors were problem employees, and Ameritech was not required to exhibit more patience than the law and its own rules required.” The Court further concluded that “it is most unlikely that the back condition that precipitated her application for FMLA leave was a ‘serious health condition,’” as there was no evidence she suffered from a chronic serious health condition and “it appears that she missed only three days of work.”
As demonstrated by the holding of the Seventh Circuit, an employer may enforce reasonable time limits on an employee’s submission of FMLA medical certification. Absent timely submission of the certification – assuming no evidence of extenuating circumstances – an employer may treat the absence as an unapproved absence and impose discipline up to and including termination.
*Stephen Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in defending employers in FMLA litigation, as well as counseling employers on FMLA compliance. For more information about medical certifications or other questions about the Family and Medical Leave Act, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
“It’s For Work!!” – Can a PDA Lead to Unintended Overtime Consequences?
By Michele L. Jakubs*Advanced communication technology is becoming increasingly commonplace among all types of industries and employers. From virtual private networking (“VPN”) applications that allow employees a secure “log in” to their company’s server from a remote location using an internet connection, to company email becoming accessible anywhere, anytime with the use of a web-based interface, employees have more options available to them today to work from anywhere around the globe. Employers make work communications even easier when they provide their employees with a personal digital assistant, or PDA, such as a Treo, BlackBerry, or iPhone.
Oftentimes, employees with these devices and access to company technology “after hours” are exempt from federal Fair Labor Standards Act (“FLSA”) and state regulations relative to overtime and the minimum wage. These include those employees that satisfy Department of Labor (“DOL”) criteria for “exempt” employees and pass three “tests” depending on (a) how much they are paid, (b) how they are paid, and (c) what kind of work they do. Exempt employees must be paid on a salary basis, must make at least $455 a week, and must perform exempt job duties such as executive, professional, and administrative functions. Determining whether an employee is exempt requires a case-by-case analysis of the employee’s job duties consistent with DOL guidance. While some job classifications (attorneys and other professionals, for example) are almost always exempt, others are not as clear (inside sales people are usually not exempt, while outside sales people are; similarly, while registered nurses are exempt, licensed practical nurses are not). When job duties overlap (a licensed engineer performing inside sales work, for example), an employer must analyze the employee’s position to determine whether or not the FLSA and state overtime and minimum wage requirements apply.
These considerations come into play when dealing with the case of a nonexempt employee that has access to company e-mail from home and/or is issued a PDA. A common example is the nonexempt clerical worker who checks and sends email from home either before or after work. When workers are given PDAs – with unfettered access to company communications at all hours – the situation can become even more problematic. The FLSA requires employers to compensate nonexempt employees for any time spent on work-related tasks, even if those tasks involve checking and responding to e-mail from the comfort of a living room couch. Prudent employers should articulate clear policies to ensure that they comply with overtime and minimum wage requirements.
To avoid paying overtime, employers should have a policy in place that nonexempt employees may not check e-mail or return phone calls outside of normal business hours unless they have advanced authorization. Absent approval, employees should not work these hours. When a nonexempt employee violates this policy, the employer should reprimand the employee consistent with company policy. The employer must, however, pay the employee in accordance with the FLSA for the overtime that the employee worked.
Conversely, if an employer wants nonexempt employees to respond to phone calls or emails outside of regular working hours, the employer should have a system in place that requires employees to properly track their time. Such a system should facilitate paying employees for all hours worked. Either way, employers should implement a clear policy and make sure that it universally enforces that policy. The worst thing for an employer to do is to recognize that nonexempt employees are checking e-mail and returning phone calls outside of regular working hours and ignore it.
Additionally, employers should think carefully about which company employees are given outside access to the company server and email via a PDA. To limit liability, employers should only make the devices available to those employees who actually need them. The great majority of employees who utilize this technology are exempt; however, as these practices become more common and nonexempt employees are “wired” through a PDA or home computer, employers should be wary of potential wage and hour violations.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of employment litigation and wage and hour compliance and administration. For more information concerning compliance with any aspect of the FLSA, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
LET YOU GO: How to Avoid Litigation When Terminating an Employee
By Patrick O. PetersThe great majority of employment discrimination lawsuits and administrative charges result following the termination of an employee’s employment. When an employee loses his/her job, the ex-employee has an increased economic incentive to consult with a plaintiff’s attorney and/or pursue litigation or administrative relief and loses the disincentive to litigation inherent in an ongoing employer-employee relationship. Moreover, the employee’s hurt feelings resulting from a sudden job loss can contribute to feelings of vengeful retaliation against the employer – justified or not – causing the employee to seek retribution in a legal forum.
The best defense against an employment discrimination and/or wrongful discharge lawsuit is developed prior to or at the time of termination, not after the lawsuit is filed. To that end, prudent employers should take steps to both avoid litigation and carefully execute the termination so as to increase their chances of defeating a discharged employee’s claims.
NO SURPRISES. Throughout an employee’s employment, employers should conduct regular performance evaluations and implement an objective system of discipline that includes documented reports of performance deficiencies. In addition, employers should clearly communicate their employment policies to employees, including any employee handbook, harassment policy, and the employee’s job description. Documents evidencing an employee’s employment history are vital to support an employer’s non-discriminatory motive for terminating an employee’s employment.
Immediately before terminating an employee, employers should consider suspending the employee to investigate any specific incidents that give rise to the termination. Employers have broad authority to conduct internal investigations. Employers should take advantage of this right, talk to as many supervisors, co-workers, and subordinates as necessary to learn all of the relevant facts.
Most importantly, employers should allow the subject employee an opportunity to respond prior to the official termination. The employee may admit some, most, or all of the accusations, and provide useful admissions that may benefit the employer in future litigation. Even if the employee admits nothing, the employer can limit the employee to one set of facts. It is better for employers to hear the employee’s side of story before a possible deposition, months if not years following the termination.
TELL THE TRUTH. The best advice an employer can follow when terminating an employee is to give an honest reason for the employee’s termination. This is not moral guidance, but sound legal counsel. As the saying goes, no good deed goes unpunished. Rather than identifying an employee’s performance deficiencies as the catalyst for his termination, an employer might choose to “soften the blow” and tell the employee that he is being let go due to a reduction in force, or an economic lay off. This is a common mistake. The worst thing that an employer can do when terminating an employee is to give a dishonest reason for the termination that later will be cited as “pretext” for discrimination, retaliation, and/or wrongful discharge.
The communicated reason for the termination should also mirror the employee’s documented performance deficiencies. Having a good reason for termination is not enough – the employer’s statements and documentation must square with that good reason, and contrary statements or documentation will work against it.
BE PROFESSIONAL AND BE PREPARED. While an employer should speak truthfully when discharging an employee, employers should not use the opportunity to be gratuitously cruel or mean-spirited. “Rubbing it in” does no good for the employer and can create hard feelings on the part of the employee that can later result in an administrative charge or employment litigation. The difference between having a lawsuit and not having one may result from how the employer communicated the discharge.
Prior to a termination meeting, employers should keep news of an employee’s impending discharge private and not allow the decision to “leak” out among the workforce. News of a termination should come from the employee’s direct manager or supervisor at the end of the work day, in a private meeting with a witness (an HR employee or other manager), with minimal disruption to other employees.
At the termination meeting, employers should be firm and professional, but compassionate and respectful. Employers should summarize reasons for the termination and use specific examples. While employers should welcome questions and explain their rationale, they should avoid debating the decision with the employee.
TIE UP LOOSE ENDS. First, employers must make sure that the employee receives all owed compensation. Wage and hour litigation has increased rapidly and substantively favors the employee. Employees can often collect double or triple damages, costs of litigation, attorneys’ fees, and civil and criminal fines.
Second, employers should review and comply with any agreements they have with the employee. While most employees are “at will,” some employees have an employment contract or other agreement such as a non-competition/non-solicitation agreement. When planning for a termination, employers should review their obligations pursuant to these contracts and ensure that their actions comply with such agreements. Employers should also inform discharged employees of any ongoing obligations following the termination, such as a continued duty to protect the employers’ trade secrets.
Finally, depending on the circumstances, employers should consider offering severance pay in exchange for a release of claims from the employee. In some situations, offering a few weeks’ salary for the employee to waive any right to future litigation might save the employer thousands of dollars in litigation costs. Employers should ensure that their release documents are up to date and include any possible claims the employee might have.
In the end, it is impossible to predict the future with respect to litigation arising from an employee’s termination. Employers should plan and execute terminations carefully, however, to minimize their risk and exposure to litigation, and to maximize their chances of winning potential claims and lawsuits.
SURVEY SAYS – Some Employers Not Complying With The FMLA
By Patrick M. WattsA recent study by the Families and Work Institute (“FWI”) found that many employers fail to comply with the federal Family and Medical Leave Act (“FMLA”). Interestingly, the difference between large employers (18%) – those with more than 1,000 employees – and small employers (21%) that failed to comply with the FMLA was statistically insignificant.
The FMLA requires covered employers, those with 50 or more employees within a 75-mile radius, to provide at least 12 weeks unpaid leave and job restoration benefits to covered employees in certain circumstances such as the employee and/or family member’s serious health condition, the birth of a child, or adoption and/or foster-care placement. In addition, the FMLA was recently expanded to include “qualifying exigencies,” as that term is to be defined by the Department of Labor, related to military service.
The 2008 National Study of Employers conducted by the FWI found that 24% of covered employers did not offer at least 12 weeks of paternity leave; 15% did not offer at least 12 weeks of maternity leave; 19% did not offer adoption and/or foster-care leave; and 16% did not offer FMLA benefits to their employees for the care of an employee’s spouse or children with serious health conditions.
Employers – especially growing employers who, as they add employees, become covered employers under the FMLA – should regularly update their leave policies and train their human resource personnel to ensure that they are complying with the FMLA. Moreover, employers with covered employees in different states must be aware of and comply with various state laws that may require both paid and unpaid leave. Finally, all covered employers should have their current FMLA policies updated to comply with the recently passed National Defense Authorization Act.
Z&R Shorts
Upcoming Speaking Engagements
June 19, 2008
Steve Dlott will present “Defending Workers’ Compensation Claims” to the Lake/Geauga Chapter of the Society for Human Resource Management (“SHRM”) as part of the “Effective HR – It’s All About People!” workshop on June 19, 2008 at the Radisson Hotel/Eastlake. For more information or to register, call (440) 392-2168 or email: info@lgashrm.org.
June 23, 2008
George Crisci will speak at the 8th Annual Northern Ohio Labor & Employment Law Conference at the Cleveland Metropolitan Bar Association on June 23, 2008. George will present “Public Collective Bargaining Developments” to the conference.
October 16 and 17, 2008
George Crisci and Stephen Zashin will speak at the 45th Annual Midwest Labor and Employment Law Seminar presented by the Ohio State Bar Association October 16 and 17, 2008 in Columbus. George will present “Public Collective Bargaining Developments” to the conference and Stephen will present an update on FMLA and other leave law.
Stephen Zashin admitted to the New York Bar Stephen Zashin was admitted to the New York State Bar and to the bar of the federal district court for the Southern District of New York.
Thursday, May 29, 2008
DNA ALERT: New Law Prohibits Discrimination Based On Genetic Information
By Lois A. Gruhin
On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act (“GINA”). GINA expands Title VII of the Civil Rights Act of 1964 (“Title VII”) to prohibit employers from discriminating against employees on the basis of “genetic information” in employment decisions. “Genetic information” not only includes tests that determine variations in a person’s DNA, but also information regarding family history of a particular disease.
GINA also prohibits employers from collecting genetic information from their employees, except for rare circumstances such as testing for adverse effects to hazardous workplace exposures, and requires strict confidentiality of genetic information obtained by employers. Similar to other classifications under Title VII, an employee alleging a violation of GINA can recover damages and sue for retaliation in the event of an adverse employment action following the complaint of a violation.
In addition to expanding Title VII protections for employees, GINA also prohibits health insurers from making coverage decisions based on the results of genetic testing. The rationale behind the legislation is to encourage individuals to get tested for certain genetic diseases and participate in clinical trials, free from fear of adverse employment and health insurance decisions based upon future likelihood of genetic disease. While GINA affords individuals these protections, it does not prohibit life insurers from taking into account a person’s genetic make up when issuing policies.
Consistent with the new law, employers should treat an individual’s genetic information as a protected classification similar to his race, sex, religion, etc. Employers should not make hiring, firing, promotion, or placement decisions based on this information, and amend their current policies to include genetic information as prohibited and illegal discrimination.
On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act (“GINA”). GINA expands Title VII of the Civil Rights Act of 1964 (“Title VII”) to prohibit employers from discriminating against employees on the basis of “genetic information” in employment decisions. “Genetic information” not only includes tests that determine variations in a person’s DNA, but also information regarding family history of a particular disease.
GINA also prohibits employers from collecting genetic information from their employees, except for rare circumstances such as testing for adverse effects to hazardous workplace exposures, and requires strict confidentiality of genetic information obtained by employers. Similar to other classifications under Title VII, an employee alleging a violation of GINA can recover damages and sue for retaliation in the event of an adverse employment action following the complaint of a violation.
In addition to expanding Title VII protections for employees, GINA also prohibits health insurers from making coverage decisions based on the results of genetic testing. The rationale behind the legislation is to encourage individuals to get tested for certain genetic diseases and participate in clinical trials, free from fear of adverse employment and health insurance decisions based upon future likelihood of genetic disease. While GINA affords individuals these protections, it does not prohibit life insurers from taking into account a person’s genetic make up when issuing policies.
Consistent with the new law, employers should treat an individual’s genetic information as a protected classification similar to his race, sex, religion, etc. Employers should not make hiring, firing, promotion, or placement decisions based on this information, and amend their current policies to include genetic information as prohibited and illegal discrimination.
Wednesday, February 13, 2008
Mind Like An Elephant - Memory Not Excluded From Trade Secret Protection
By Lois A. Gruhin
In a unanimous decision delivered on February 6, 2008, the Ohio Supreme Court ruled that trade secrets stored in a former employee’s memory – such as customer lists – are protected under Ohio’s Uniform Trade Secrets Act (“UTSA”), R.C. 1333.61, et seq.
In Al Minor & Assoc., Inc. v. Martin, 2008-Ohio-292, the Court resolved a five-year dispute between a pension administration services company and a former employee. Al Minor & Associates, Inc. (“AMA”) is an actuarial firm that designs and administers retirement plans and employs analysts, like Martin, to work with its more than 500 clients. AMA was founded by Al Minor who developed the company’s confidential client list.
Robert Martin began working for AMA in 1998. At no time during his employment with AMA did Martin execute either a non-competition agreement or an employment agreement. Throughout his employment, Martin was an “at will” employee. In 2002, he organized Martin Consultants, L.L.C., which provided the same services as AMA. Martin resigned from AMA in the following year.
When Martin left AMA, he did not take any confidential documents, including the company’s client list. However, based upon information gleaned from AMA’s list and stored in his memory, Martin successfully solicited 15 clients to switch to his firm.
AMA sued Martin alleging that his conduct was an unlawful violation of the UTSA. The trial court agreed and awarded AMA $25,973 in damages. On appeal, the 10th District upheld the verdict but certified to the Supreme Court that the result was in conflict with a previous 8th District decision.
The UTSA defines a “trade secret” to include “information, including … (a) listing of names, addresses, or telephone numbers, that satisfies both of the following: [i]t derives independent economic value … from not being generally known to … other persons who can obtain economic value from its disclosure or use; (and) [i]t is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
Writing for the Court, Justice O’Donnell stated that the legislature could have excluded memories from protection under the UTSA and limited enforcement of the statute to written documents or other tangible media. The Court’s plain language review of the law, however, concluded that they did not. The Court further held that the six-part analysis of the definition of a “trade secret” it uses to determine whether a client list qualifies for protection does not distinguish between a documented list and one stored in a person’s memory. Consequently, according to Al Minor & Assoc., Inc., “trade secrets” can include the memories of a former employee that are subject to protection under the UTSA.
While the Court’s decision broadens what is actionable under the UTSA, Justice O’Donnell noted that employees who leave their jobs will inevitably have memories tied to their former employment. Under Ohio law, only memories that are “trade secrets” (which can include client lists) are protected by the UTSA.
In a unanimous decision delivered on February 6, 2008, the Ohio Supreme Court ruled that trade secrets stored in a former employee’s memory – such as customer lists – are protected under Ohio’s Uniform Trade Secrets Act (“UTSA”), R.C. 1333.61, et seq.
In Al Minor & Assoc., Inc. v. Martin, 2008-Ohio-292, the Court resolved a five-year dispute between a pension administration services company and a former employee. Al Minor & Associates, Inc. (“AMA”) is an actuarial firm that designs and administers retirement plans and employs analysts, like Martin, to work with its more than 500 clients. AMA was founded by Al Minor who developed the company’s confidential client list.
Robert Martin began working for AMA in 1998. At no time during his employment with AMA did Martin execute either a non-competition agreement or an employment agreement. Throughout his employment, Martin was an “at will” employee. In 2002, he organized Martin Consultants, L.L.C., which provided the same services as AMA. Martin resigned from AMA in the following year.
When Martin left AMA, he did not take any confidential documents, including the company’s client list. However, based upon information gleaned from AMA’s list and stored in his memory, Martin successfully solicited 15 clients to switch to his firm.
AMA sued Martin alleging that his conduct was an unlawful violation of the UTSA. The trial court agreed and awarded AMA $25,973 in damages. On appeal, the 10th District upheld the verdict but certified to the Supreme Court that the result was in conflict with a previous 8th District decision.
The UTSA defines a “trade secret” to include “information, including … (a) listing of names, addresses, or telephone numbers, that satisfies both of the following: [i]t derives independent economic value … from not being generally known to … other persons who can obtain economic value from its disclosure or use; (and) [i]t is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
Writing for the Court, Justice O’Donnell stated that the legislature could have excluded memories from protection under the UTSA and limited enforcement of the statute to written documents or other tangible media. The Court’s plain language review of the law, however, concluded that they did not. The Court further held that the six-part analysis of the definition of a “trade secret” it uses to determine whether a client list qualifies for protection does not distinguish between a documented list and one stored in a person’s memory. Consequently, according to Al Minor & Assoc., Inc., “trade secrets” can include the memories of a former employee that are subject to protection under the UTSA.
While the Court’s decision broadens what is actionable under the UTSA, Justice O’Donnell noted that employees who leave their jobs will inevitably have memories tied to their former employment. Under Ohio law, only memories that are “trade secrets” (which can include client lists) are protected by the UTSA.
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