*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.
Thursday, November 27, 2008
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.
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