Showing posts with label USERRA. Show all posts
Showing posts with label USERRA. Show all posts

Tuesday, February 3, 2009

EMPLOYMENT LAW QUARTERLY | Winter 2009, Volume XI, Issue i

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GOOD TO THE LAST DROP? Court Holds that Preparing To Compete Is Not Competing and that Customer Lists Are Not Always Trade Secrets

By Lois A. Gruhin

The Ohio Court of Appeals, Eighth Appellate District, recently held that preparing to compete does not constitute competition in violation of a non-compete agreement. In Berardi’s Fresh Roast, Inc. v. PMD Enterprises, Inc., et al., as part of a divorce settlement, a husband sold his interest in the couple’s coffee roaster business to his spouse and entered into a non-compete agreement which prevented him from re-entering the coffee industry for three years. The ex-wife subsequently sold the company to her divorce attorney. Prior to the expiration of his non-compete agreement the ex-husband began seeking financing of a new coffee business; signed a lease for a warehouse two months prior to the expiration his non-compete agreement; and two weeks before the expiration of his non-compete agreement took possession of the warehouse and equipment so his company would be ready for business when his non-compete agreement expired.

The Court found in favor of the defendant husband and concluded that preparations to compete do not constitute competition. The Court stated that the husband's actions prior to the expiration of the non-compete agreement did not show that he “actively engage[ed]” in the coffee industry and that in any case, “preparing to compete is not equivalent to competing.”

On appeal, the Appellate Court upheld the lower Court’s decision that preparations to compete do not constitute competition. In responding to the other issues on appeal, the Appellate Court held that misappropriation of trade secrets under the Uniform Trade Secrets Act depends on whether the information at issue “derives its independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.” After acknowledging that client lists may constitute trade secrets even if obtained in part from public sources, the Court of Appeals held the subject client list did not constitute a trade secret because the new company’s list contained only “the client’s name, address and telephone number.”

The 10th Appellate District in Chornyak & Associates, Ltd. v. Nadler affirmed a trial court’s decision denying trade secret status to an employer computer file containing customer preference information and other items because the employer shared that information with the customers in question, with no restrictions on the customers’ ability to use or redistribute the document.

Employers need to be proactive in protecting their trade secrets. Precautions must be taken to guard the secrecy of the information. All confidential and proprietary information, including trade secrets, should be marked confidential and proprietary and kept locked and secured. Only employees who need to access the information should have access to those documents. If the information is kept in electronic form it needs to be password protected and be accessible only by certain employees, not by every employee in the company. The employees should sign a form that pops up every time he/she accesses the information acknowledging the employee’s understanding that the information is confidential and proprietary. Remember to only disclose confidential and proprietary information to those employees who need to access it to perform their job. Otherwise your trade secrets slowly will drip away from you.

UNEASY COMPANY: Court Determines Temporary Agencies and Employers Are Joint Employers Under the FLSA

By Michele L. Jakubs*

Employers who utilize temp agencies can constitute joint employers with the temporary agency under the Fair Labor Standards Act (“FLSA”.) Such joint employment relationship may occur even when the employer does not have “formal control” over the temporary workers and the temporary employees receive pay from the referral agency.

In Barfield v. New York City Health and Hospitals Corp., a temporary employee received pay from three referral agencies for continuous work performed at one hospital. The 2nd Circuit Court of Appeals held that the hospital still amounted to a joint employer under the FLSA. As a result, the court determined that the hospital had to pay the worker any overtime she accrued while working there, because it had “sufficient control” over her and the work she did.

In that case, the plaintiff sought overtime pay while working at a single place of employment at the behest of three referral agencies. In order to collect overtime, the employee therefore had to show that the hospital was her employer. Because the FLSA defines an “employer” as “any person…acting directly or indirectly in the interest of an employer in relation to an employee,” and the referring agencies had already paid the employee’s wages, the employee sought to prove that the hospital was also her employer for purposes of the FLSA.

According to the court’s application of the “Economic Realities” test, the hospital was her joint employer and thus responsible for paying her overtime. In its analysis, the 2nd Circuit found that the hospital had the power to hire and fire referred agency employees, supervised or controlled agency employees’ work schedules and conditions of their employment and that the hospital kept employment records of the referred workers’ shifts. The court noted that even though the hospital never retained “formal control” over the employee since it did not pay her wages, “the fact that the hospital also exercised some authority … helps establish the economic realities of its status as a joint employer.”

The court also used the “functional control” test. Under that test, the Court found that the agency employee performed all work discreetly, in a single place, integral to the hospital’s “process of production,” and that each referral agency assigned temporary employees to the same hospitals wherever possible to promote continuity of care and productivity. The court noted that the plaintiff’s responsibilities remained constant regardless of the referring agency, she worked predominately or exclusively for the hospital, the hospital exhibited control over the plaintiff’s schedule and that her supervisors “demonstrated effective control over the terms and conditions of the plaintiff’s employment.” According to the court, these factors created a joint employer relationship between the hospital and the temporary agencies under the FLSA.

As a result of this decision, and others like it, employers must understand their relationships with temporary agencies. Only with an understanding of the actual relationship can an employer accurately measure its potential employment based liabilities.

*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 or any aspect of the FLSA, please contact Michele at 216.696.4441 or mlj@zrlaw.com.

YOU CAN'T HANDLE THE TRUTH: Altered Documents May Satisfy USERRA's Minimum Requirement for Reemployment

By Patrick J. Hoban*

In a recent case illustrating the difference between a returning service member’s right to re-employment and his employer’s need to satisfy its interest that the employee remains fit for his job, the Sixth Circuit held that a returning serviceman satisfied the documentation requirement for reemployment under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), despite submitting an altered version of his discharge papers to his employer.

In In re Petty, a police department required all returning service members to furnish a copy of their discharge papers, or DD-214, as a compliment to other paperwork before reinstatement. The police department also conducted evaluations of all officers returning from leave for any extended period of time, regardless of reason, to ensure their fitness for duty. Despite an honorable discharge, the employee, a sergeant with the police department, omitted specific facts stemming from a serious but contentious disciplinary infraction he incurred overseas that required him to resign his command.

After discovering the employee’s altered DD-214 and the omission in his personal history, the police department initiated an investigation into the employee’s conduct, citing the police department’s “zero tolerance” policy for dishonesty. While the police department returned the employee to work, it placed him in a desk job taking reports and answering phones, as opposed to his previous position as a patrol sergeant.

The employee charged that his reinstatement violated his rights under USERRA, especially in light of the fact that the police department’s investigation ultimately agreed with his position that his military charges were unfounded. The employee complained that the police department had to return him to work as a patrol sergeant or to a “substantially similar position.” He also charged that the police department impermissibly denied him the right to work off-duty security jobs, and that the Department’s return-to-work process impermissibly delayed his rehire. The Sixth Circuit Court of Appeals agreed.

Stating that USERRA focuses on securing rights for returning veterans and “not on ensuring that any particular document is produced,” the Court held that the documents met the minimum USERRA requirements. USERRA only requires that the employee receive a discharge “under honorable conditions,” and that an employee need not explain all circumstances surrounding conduct overseas. The Court stated also that the congressional intent behind and the language of USERRA trumped the police department’s stated interest in maintaining its return-to-work process to ensure their officers’ continued qualifications to serve:
In USERRA, Congress clearly expressed its view that returning veterans’ reemployment rights take precedence over such concerns. [The police department]…questions only whether [the employee’s] conduct during his military service would disqualify him from returning to service in the police department. But [the employee’s] separation from military service is classified as ‘under honorable conditions,’ which Congress has made clear suffices to qualify him for USERRA benefits.
Citing the police department’s ability to investigate its employees’ continued fitness to serve upon reinstatement and that USERRA allows terminations “for cause” after reinstatement, the Court remanded the case back to the district court and ordered summary judgment in favor of the employee on his reemployment claims.

This case serves as a reminder that if a returning employee presents an honorable discharge, an employer generally may not deny that employee reinstatement rights. This proposition holds true despite the fact that the returning employee may have engaged in unacceptable behavior while in military service.

*Patrick J. Hoban practices in all areas of labor and employment law, with a focus on private and public sector labor law. For more information on USERRA or any other labor or employment issue, contact Pat at 216.696.4441 or pjh@zrlaw.com.

ECONOMY DOWN, EEOC FILINGS UP: Job Bias Claims Reach Their Highest Point in Years

By Stephen S. Zashin*

In 2007, the EEOC received 82,792 private sector discrimination charges. At the time, the filings represented a 9% across the board increase from 2006, representing the largest annual uptick in filings since 1993.

In fiscal year 2008, the EEOC reported receiving 95,402 charges. This represents a 15.2% increase from 2007, perhaps the largest one-year increase ever. Many bloggers and analysts predict the trend to continue. As long as the economy continues to go downhill, employers should expect to see more EEOC and OCRC charges filed against them. Ultimately, a good percentage of these charges will result in lawsuits.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience defending employers involved in employment litigation, as well as administrative hearings before the Equal Employment Opportunity Commission and various state administrative civil rights agencies. For more information about the defense of an administrative hearing, lawsuit, or EPLI, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.

RUNNING WITH THE DEVIL: Drug and Alcohol Tests for Transportation Employees

By Steve Dlott

Any employer who conducts the drug and alcohol tests required by the Department of Transportation (“DOT”) is subject to regulations set forth in the United States Code. The DOT’s regulations do not permit employers from removing or “standing down” employees, even from safety sensitive functions, until the employer receives a verified test result, or a waiver of the result. Upon receipt of a verified positive test result, the regulations require that an employer immediately remove the employee from performing safety-sensitive functions. While the length and the consequences of the employee’s removal depend on the severity of the test result and the employee’s history, once the employer receives a verified positive test result, the initial course of action for the employer remains the same: immediate removal.

Under the regulations, a verified test result must come from a Health and Human Services (“HHS”) certified laboratory. That certified laboratory must have the test reviewed by a Medical Review Officer – a licensed physician who, among other things, evaluates medical explanations for certain drug test results.

If an employer subject to the regulations receives the results of a verified drug or alcohol test indicating the employee somehow substituted or adulterated the employee’s sample in any way to mask the presence of banned substances, the regulations treat it as a “refusal to test.” Under such circumstances, and employer may immediately remove the employee from safety-sensitive functions.

Sometimes, an employer may receive an invalid test result for other reasons (e.g., too small of a sample, a mechanical testing error, etc.). In such cases, the results are not invalid; they are “cancelled.” If an employer receives verified, but cancelled, test results, an employer must immediately:
  • Direct the employee to provide a new test specimen (typically urine) under direct supervision, with NO advance notice to the employee;
  • Attach NO consequences to the initial invalid test, other than collecting a new specimen;
  • Instruct the specimen supervisor and/or collector to note the reason for the subsequent test on the Federal Drug Testing Custody and Control Form (“CCF”) as the same reason for the original test; and
  • Ensure that the new test specimen is produced under direct supervision.
Some situations, such as pre-employment tests, return-to-duty tests, or follow-up tests demand a negative result as a requisite for employment. When an employer receives a cancelled test in these instances, the regulations direct employers to get another specimen immediately.

An employer must check the drug and alcohol testing record of any new hire the employer intends to use to perform safety-sensitive duties. As a result, the regulations require that an employer do the following:
  • Obtain the employee’s prior written consent for the release of this information. If the employee refuses to provide this consent, the employer “must not permit the employee to perform safety-sensitive functions.”
  • Request the following information about the new hire from all previous employers regulated by the DOT:
    • Alcohol tests with a 0.04 or higher result;
    • Verified positive drug tests;
    • Refusals to be tested;
    • Any violations of DOT drug and alcohol regulations; and
    • Documentation that any employee who violated DOT drug and alcohol regulations successfully completed a return-to-work program.
Even the most diligent and safety-conscious employer can have difficulty navigating drug-testing regulations. Concerns range from employee pay during the pendency of test results to community and employee safety and fallout from false-positive and false-negative test results. As a consequence, employers conducting the drug and alcohol tests required by the DOT must proceed with caution.

Z&R Shorts


Zashin & Rich Co., L.P.A. Welcomes Two Attorneys to its Growing Employment and Labor Group
Zashin & Rich recently welcomed David Vance and Rick Hanrahan to the firm and its expanding Employment and Labor Group. Both defend employers in a wide variety of labor and employment matters, including all aspects of labor relations, harassment, discrimination, and federal and state civil rights. David received his undergraduate degree, cum laude, in business from Ohio University and graduated from The Ohio State University Moritz College of Law. Rick received his undergraduate degree, cum laude, in education from Ohio University and graduated from the Toledo College of Law.

Please join us in welcoming David and Rick to Z&R!

Upcoming Seminars 

February 19, 2009
Stephen Zashin will present “The New FMLA Regulations” at the American Payroll Association Greater Cleveland Chapter’s Chapter Meeting at the Holiday Inn in Independence.

April 2, 2009
George Crisci will present “The Advancement of Collective Bargaining: After Lorain, ODOT, Youngstown, Defiance, Toledo, Twinsburg – Are we on course or have we lost our way?” at the State Employment Relations Board’s (“SERB”) 25th Anniversary Conference in Columbus, Ohio.

April 7, 2009
Steve Dlott will be part of a panel presentation on “Advanced Workers’ Compensation in Ohio” at the Hilton Garden Inn in Cleveland, Ohio. For more details or registration, please contact Sterling Education Services at 715.855.0498 or on the web at www.sterlingeducation.com.

May 6, 2009
Steve Dlott and Patrick Watts will present “Navigating Leave of Absence Issues, Including ADA, FMLA, and Workers’ Compensation” at the Ohio Health Care Association Convention.

May 21, 2009
Steve Dlott and Patrick Watts will present “New Issues in ADA, FMLA, and Workers’ Compensation” at the Lake/Geauga County Chapter of the Society for Human Resource Management (“SHRM”).
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Friday, April 14, 2006

EMPLOYMENT LAW QUARTERLY | Spring 2006, Volume VIII, Issue ii

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STAND AT ATTENTION: New USERRA Rights and Obligations

By Ryan L. Long

The U.S. Department of Labor ("DOL") recently adopted final regulations implementing the Uniformed Services Employment and Reemployment Rights Act of 1994, or USERRA. USERRA protects the rights of persons who voluntarily or involuntarily leave employment positions to undertake military service. It applies to all U.S. public and private employers, regardless of size. USERRA's regulations provide guidance concerning both employer and employee rights and obligations under USERRA and became effective on January 18, 2006.

Since the regulations apply to all employers, employers should take the time to ensure full compliance. USERRA's regulations are divided into six subparts. Subpart A provides a general introduction, defining certain terms for purposes of USERRA. Subpart B describes prohibited employer conduct, including USERRA's anti-retaliation and anti-discrimination provisions, and defines the applicable legal framework for analyzing such claims. Subpart C states the procedural requirements for reemployment, including notice, coverage and time limits for service. Subpart D describes the manner in which employees accrue benefits they would otherwise be entitled to as an employee. Subpart E explains the reemployment rights of service members. Finally, Subpart F contains the compliance and assistance provisions.

Subpart A essentially restates the statutory definitions contained within USERRA, and also excludes federal employees from the ambit of the regulations. Subpart B prohibits employers from denying employment, re-employment, retention, promotion, or any benefit of employment to an individual on the basis of his or her membership or service in the uniformed services, and also prohibits retaliation against employees for exercise of USERRA rights. This subpart also describes the applicable burdens of proof for a USERRA claim.

In Subpart C, the regulations establish the general eligibility requirements for reemployment, then describe the applicable procedures for reinstatement of employees. Thus, an employee will be eligible for reemployment following uniformed service if: 1) the employer had advance notice of the employee's service; 2) the employee's cumulative service totals five years or less during his or her employment relationship with a particular employer; (3) the employee timely returns to work or applies for reemployment; and (4) the employee was not separated from service with a disqualifying discharge or under other than honorable conditions.

As stated in the regulations, USERRA protects any absence that service in the uniformed services necessitates. To invoke USERRA rights, an employee (or appropriate officer of the employee's uniformed service) must give his or her employer advance notice that the employee intends to leave his or her job to perform military service. USERRA does not establish a specific time period for notice nor does USERRA prescribe the manner in which an employee gives notice.

In general, an employee retains reemployment rights if his or her unformed service during the employment relationship totals no more than five years. At the end of his or her service period, the employee is required to either report to work or submit a timely application for reemployment to his or her pre-service employer, depending on the length of his or her service. There are only three circumstances in which an employer may be excused from its obligation to reemploy the employee: 1) where the employer's circumstances have changed so much that reinstatement of the employee is impossible or unreasonable; 2) where assisting the employee in becoming qualified for reemployment imposes an undue hardship on the employer; or 3) where the employee's position was for a brief, non-recurrent period with no reasonable expectation that the employment would continue indefinitely or for a significant period.

Subpart D reiterates that an employer must consider an employee who is on military leave as being on a leave of absence. Thus, the employee is entitled to all non-seniority rights and benefits that an employer generally provides to other employees with similar seniority, status, and pay that are on leave of absence, as well as all non-seniority rights and benefits that an employer provides to similarly-situated employees pursuant to company policy. The regulations also grant employees absent due to service obligations for more than 31 days COBRA-like continuation of health care benefits for up to 24 months.

Subpart E describes with particularity the reemployment rights of eligible employees. An employer must promptly, e.g. as soon as practicable, reemploy an eligible employee who returns from a period of service.Moreover, an employer must reemploy an employee in a position that reflects with reasonable certainty the pay, benefits, and seniority that he or she would have attained if not for the period of service. The employee also is entitled to the seniority rights and benefits that he or she would have been reasonably certain to attain if he or she had remained continuously employed.

USERRA also provides returning employees with protection from discharge. Thus, an employer cannot terminate a reemployed service member except for cause, for a period of time based on the length of service. USERRA defines "for cause" as reasons related to either the employee's conduct or other legitimate nondiscriminatory reasons.

As demonstrated above, employers will want to review their policies and procedures to reflect USERRA's new regulations.Such preventative policies will ensure compliance with USERRA, and avoid costly litigation.

Brain • Food • Breakfast Law Series: Volume II

Please join us for breakfast refreshments at the third session of our 3-part seminar series, Volume II on April 27, 2006:

April 27, 2006
Interplay: solving the FMLA-ADA-workers' comp leave of absence puzzle.
Even FMLA aficionados sometimes face confusion when other leave issues enter the mix. If an employee with a disability requests leave as a reasonable accommodation, what of the FMLA? What are an employee's rights and your obligations if an employee cannot return to work for an extended period of time due to a workplace injury? And what do you do with their health insurance in the meantime? It is imperative for employers to understand where the FMLA, ADA, and workers' compensation laws intersect in situations like these. This seminar will discuss that interplay and include a brief discussion of COBRA-related issues (and breakfast-related pastries). Look for more information about this important seminar in coming weeks. All brain · food · breakfast seminars:
  • take place at our offices. Call (216) 696-4441 for directions or more information.
  • begin with registration at 8:30 a.m. and conclude at 10:00 a.m.
  • are strictly limited to 20 attendees. You may register in advance by calling (216) 696-4441 (please ask for Nicale) or sending an email to nee@zrlaw.com.
  • cost $30.00 per attendee.
  • include breakfast refreshments.
  • are led by Zashin & Rich attorneys who practice only workplace law all day, every day.
  • include time for your questions.
Join us for the brain · food · breakfast law series. It's just good for you.

COMPENSATION INOCULATION: Vaccinating Your Workers’ Compensation Premium Against Rising Health Care Costs

By Steve P. Dlott

Between 2000 and 2005, the number of workers' compensation claims filed in Ohio has dropped by approximately 10 percent (from 208,301 in 2000 to 178,015 in 2005). Clearly, employers have made significant inroads in workplace safety.

Unfortunately, the news is not all good for employers. Even as the number of filed claims has fallen, the cost of those claims has increased dramatically. Between 2000 and 2005, medical costs for workers' compensation claims jumped by almost $300 million. This increase represents a nearly 30 percent increase in medical costs over five years. Indeed, the Bureau of Workers' Compensation ("BWC") altered its system for setting reserves to account for medical costs in response to this increase.

What accounts for this sharp rise in medical costs? Unquestionably, the number one culprit is the BWC's exceedingly generous reimbursement rates. It is a well-known secret that the BWC's reimbursement rate for medical services is much higher than that of private health insurers and other government-funded insurance programs. The Columbus Dispatch recently reported that from 1998 through 2004, the Bureau paid $543.6 million more for the medical treatment of injured workers than the actual cost of providing those services.

Relying on the BWC offers little hope of staunching these hemorrhaging medical costs. Relief by way of reduction of reimbursement rates for medical services is not very encouraging. State-funded employers are at the BWC's mercy when it comes to establishing those generous reimbursement rates.

Although the BWC offers little hope for relief, there is one important first step available to employers in this battle to control medical claims costs. Employers can contract with medical facilities, such as an urgent care facility, for the initial post-injury treatment. While this contract only applies to non-emergency type injuries, such injuries comprise the vast majority of soft-tissue injuries, such as back or neck strains, which often develop into more serious, and more costly, ailments.

Getting that initial diagnosis and, equally important, return-to-work recommendation from a physician of the employer's choice is essential to controlling overall claims costs. Presenting documentation from the employer's doctor releasing the claimant to work (even on light duty) is of critical importance at a hearing in challenging the claimant's certification disabling the claimant from employment for an extended period of time.

Unquestionably, the most common mistake employers make is taking a "wait and see" attitude before deciding to fight a workers' compensation claim. Often, by the time the employer discovers the claim's impact on its workers' compensation premiums, the damage has already occurred. A medical report from the employer's doctor returning the claimant to work immediately after the injury is the best prescription for fighting a medically suspect claim. Armed with such a report, the employer can stave off frivolous claims and limit the effect such claims exert on workers' compensation premiums.

CHECK YOURSELF: Gathering the Information Necessary to Require Employees to Submit to a Medical Examination

By Robert W. Hartman

The Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. , severely restricts the manner in which employers obtain and use medical information from employees. Despite these restrictions, employers may require current employees to undergo medical examinations when job-related and consistent with business necessity. As demonstrated in Ward v. Merck & Co., Inc. , an employer can legitimately require an employee who poses a threat to his co-workers to undergo a medical examination, if the employer properly documents the situation.

The employee in Ward performed his position without incident for approximately six years. In 2002, supervisors observed that the employee became socially withdrawn and his work performance began to decline. The next year, local police had to be called to Merck's worksite because the employee "backed himself up against the food tables" in the cafeteria and "was screaming at people, telling them not to eat any of the vegetables."

Following this incident, the employee returned to work but maintained a "catatonic" demeanor. Indeed, co-workers complained that this employee's behavior was frightening, and co-workers were uncomfortable working around the employee. As a result, the employer requested that this employee submit to a medical examination to determine if he was capable of performing his job duties. The employee refused to submit to an examination and was subsequently fired. The employee then filed a lawsuit alleging that his former employer violated the ADA by requiring him to submit to a medical examination.

The Court held that the employer's request that the employee undergo a medical examination did not violate the ADA. In doing so, the Court stated the general rule that medical examinations are permitted only to the extent that they are job-related and consistent with business necessity. Citing to EEOC regulations, the Court stated that an examination is acceptable if the employer "has a reasonable belief based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."

Applied to the facts at hand, the Court held that the employee's behavior posed a direct threat to himself and a direct threat to other employees. Specifically, the Court cited anecdotal evidence gathered by the employer which indicated that co-workers were frightened to work with this employee and were concerned for their safety. Moreover, co-workers and management expressed concerns about the employee's own safety. In addition, a significant decline in work performance accompanied the changes in the employee's behavior. As a result, the employer's decision to require a medical examination of this employee did not violate the ADA.

As demonstrated by Ward, employers must plan and document prior to requesting an existing employee to take a medical examination. In such cases, the ADA places the burden on the employer to establish that the medical examination is job-related and consistent with business necessity. To satisfy this burden, the employer should collect evidence demonstrating that either the employee 1) cannot perform the functions of his job or 2) presents a direct threat to himself or coworkers. With respect to performance, employers must instruct supervisors to review employee performance accurately. In the event that an employee potentially presents a direct threat to himself/herself or other employees, employers must document the incidents which lead to this belief, and make an attempt to corroborate this belief.

By possessing comprehensive documentation, an employer will be in a better position to convince a court that its requested medical examination was job-related and consistent with business necessity. In this manner, employers satisfy their obligations under the ADA while ensuring a safe and productive work environment.

COBRA ADMINISTRATION: Clarity = Bliss.

By Helena Oroz*

It is an unconfirmed theory, but it may be that many COBRA issues could be avoided if only one ingredient was added to the mix: clarity. If all the interested parties have the pertinent information, know their own obligations, and understand everyone else's obligations, how can they go wrong?

In Krippendorf v. Mitchell , the U.S. District Court for the Eastern District of Arkansas recently decided, quite simply, that the employer just got it wrong. The employee worked as a salesperson for the employer, an Arkansas company apparently subject to that state's "baby COBRA," or state version of the federal law that mandates continuation of health care coverage under certain circumstances. (This generally means that the employer is small enough to be exempt from COBRA). While this is not exactly a COBRA case, it is nonetheless instructive.

The employee received health insurance benefits under the employer's group health insurance policy. Under the plan, the employee paid a portion of the health insurance premium for himself and his family ($86.89), which the employer deducted from each of the employee's bimonthly paychecks. The employer paid the rest of the premium. The employee quit his job on Monday, April 18, 2005 without advance notice. His last paycheck covered half the month--April 1 through Friday, April 15, 2005--and as usual, the company deducted $86.89 for the employee's portion of the heath insurance premium. The company's benefits administrator gave the employee the forms required to continue his health insurance coverage--and that is apparently where everyone ceased being on the same page.

The employee returned the forms with a check for the first month's premium ($768.15) at the beginning of May. The company cashed the employee's check, but for some reason sent neither the employee's premium payment nor his continuation of coverage form to the insurance company. Instead, the company cancelled the employee's coverage retroactive to April 1, 2005. The employee, unaware that the company had cancelled his coverage, sent the company his second month's premium payment. The employee learned of the cancellation only when his wife sought medical treatment and was informed that her health insurance had lapsed.

The employer finally sent the employee's continuation of coverage form to the insurance company in early June 2005--but still did not pay his health insurance premium. The employee's attorney contacted the Company on June 13, 2005 to warn that he would file suit in federal court if the employee's health insurance benefits were not reinstated before June 16. The company actually did reinstate the employee's insurance on or about June 16, 2005, but did not notify the employee or his attorney of the reinstatement until June 27, 2005.

By this time, the employee, left in the dark about the status of his insurance, had filed suit in court alleging ERISA and state law claims. The employee alleged that the company breached its fiduciary obligation under ERISA to send the appropriate premiums to the insurance company each month. He sought the amount equal to the portion of the premium that the company should have paid for the time period of April 1 to 18, 2005, as well as attorneys' fees and costs.

The court found that, under the plan, the employee was supposed to receive the benefit of health insurance coverage for the time period of April 1 through April 15 at a cost of only $86.89 to himself, and that the company had actually deducted that amount from his last paycheck.

The court further found that when the company accepted the employee's first monthly premium check in early May 2005, it did not apply the money toward the employee's continuation coverage, which should have started after his employment ended on April 18, 2005. Instead, the employer applied the funds retroactive to April 1, a problem because:
  • the employee was still working on April 1. His last paycheck covered his last pay period (April 1 through April 15, 2005), and the employer had already withdrawn the regular $86.89 employee share from that paycheck to cover that period of time;
  • the employer should already have paid its share of the employee's premium for this time period as well;
  • and, essentially, because the employer did not prorate the employee's premium payment appropriately, the employee overpaid.
The court found that the employee overpaid by $384.08--half of his $768.15 premium payment for the whole month. The court ordered a refund of that amount so that the employee would receive the benefit of his April 1-15 health coverage at the proper price of $86.89. The court also awarded the employee legal fees and costs, noting that the company offered no convincing explanation as to why they refused to timely pay the insurance premium, and that the employee should not, in any event, be penalized for the company's failure to abide by the terms of the plan.

At least in this case, the employer was out of the loop. To avoid a similar situation, make sure that the "COBRA person" at your company sticks to the cardinal rule: abide by the plan. Ensure that COBRA notices and other paperwork are forwarded expeditiously to the proper parties and that premium payments are applied accurately. Finally, keep the lines of communication open, especially if the company has made a mistake. The employer in this case had a chance to work things out before heading to court and blew it. In most cases, all employees really want is health insurance, not a battle in court.

*Helena Oroz practices in all areas of employment law and compliance issues.
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Saturday, October 29, 2005

EMPLOYMENT LAW QUARTERLY | Fall 2005, Volume VII, Issue iii

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Ohio Courts Consider Compensability in Cases of Automobile Injury and Limb Loss

By Steve P. Dlott

Two recent cases in Ohio courts considered two different aspects of workers' compensation law: when an injury is received "in the course of employment," and when the loss of limb can result in permanent total disability compensation.

In Cartwright v. Conrad, an employee traveling as a passenger in her co-worker's vehicle suffered injuries in a car accident. The injured employee had asked her co-worker, a store manager, for a ride to and from a one-day training seminar. After the seminar, the co-worker stopped to obtain payroll packets for her store and another store before driving the employee home. At this stop, the employee actually went inside and obtained the payroll packets. The employee and her co-worker then dropped off the first payroll packet. However, while driving to the second store to drop off the second payroll packet, the co-worker got into an accident.

The employee filed a workers' compensation claim for injuries she suffered as a passenger in the car accident. The Bureau of Workers' Compensation denied her claim, and the employee appealed. The Industrial Commission affirmed the Bureau's decision, and the employee appealed the Industrial Commission's decision to court. The court found in favor of the employer.

The employee appealed, arguing that factual questions existed concerning whether her injury occurred "in the course of" or "arising out of" her employment. By statute, only an employee with an injury "received in the course of, and arising out of, the injured employee's employment" may receive workers' compensation benefits for that injury. The language "in the course of" limits compensation to injuries an employee receives while performing duties that his or her employer requires, while "arising out of" requires a causal connection between the injury and the employment.

The appeals court held that the employee's injury was not received either "in the course" or "arising out of" her employment. First, the court reviewed the accident in light of the "coming-and-going rule":
As a general rule, an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not entitled to participate in the Workers' Compensation Fund because the requisite causal connection between the injury and the employment does not exist.
The court held that the employee had a fixed place of employment, even though her employer required her to attend the one-day seminar at a different location. Based on the coming-and-going rule, therefore, the employee could not receive benefits for injuries received in the car accident while traveling home from work. The employee argued that an exception applied in her case because she was performing a special errand for her employer at the time of the accident. The court disagreed, explaining that the exception does not exist unless the special errand was a major factor in the travel that produced the injury, not just incidental to the travel. The court held that the co-worker's errand was merely incidental to the employee's journey home. Therefore, the employee's injury did not occur "in the course of" her employment.

The court also reviewed the facts and circumstances surrounding the accident in light of three factors that the Ohio Supreme Court established for finding a causal connection between an employee's employment and injury: proximity of the place of employment to the accident scene; the employer's degree of control over the accident scene; and the benefit to the employer of the employee's presence at the accident scene.

The court found no causal connection between the employee's injury and her employment. First, the accident scene was remote from the employee's place of employment, as well as the hotel where the seminar took place. Second, the employer had no direct control over the accident scene. Finally, and most significantly for the court, the employee's presence at the accident scene provided no real benefit to the employer. The court found that the employee did nothing significant during the trip from the hotel to her home that aided her co-worker's mission on the employer's behalf. Therefore, the court held that the employee's injury was not one "arising out of" her employment.

It was clear from the facts in this case that the three-factor analysis did not point to a causal connection between the employee's injury and her employment. Nevertheless, employers should understand that any off-site employee work activity increases the risk of workers' compensation exposure.

***

The Ohio Supreme Court recently concluded that the loss of a leg is a loss of two limbs – a leg and a foot – for purposes of Ohio's permanent total disability ("PTD") statute. Under Ohio law, an individual may receive an award of PTD for "the loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof."

In International Paper v. Trucinski, an employee suffered serious injuries to his leg during a chemical explosion at work. As a result of the injury, the employee underwent an above-the-knee amputation. The employee eventually applied for and received PTD. The employer unsuccessfully challenged the PTD award to an appeals court, and then to the Ohio Supreme Court.

The Ohio Supreme Court, in affirming the appeals court, also affirmed its own previous decision in a similar case. The Court previously held that a hand and an arm are distinct body parts for purposes of the PTD statute. Therefore, an employee's loss of an entire single extremity can equate to the loss of two body parts and an award of PTD under the statute. Based on its reading of the PTD statute and its previous case law, the Supreme Court held that the employee's loss of his leg equated to the loss of two body parts – a leg and a foot – for purposes of a PTD award.

The Supreme Court's decision is somewhat surprising. While the loss of a foot does not necessarily involve the loss of a leg, the converse is always true. One need not have a medical degree to recognize that the loss of a foot cannot survive the loss of a leg. Allowing employees, who unfortunately suffered the loss of a leg, to collect benefits for both the leg and the foot suggests a double recovery. However, the Supreme Court's sympathy for such tragic injuries appears to trump elementary anatomy in lost limb compensation awards.


Brain • Food • Breakfast • Law Series


Breakfast might the most important meal of the day. Most people skip it.

Keeping pace with workplace law is important too, yet many human resource professionals, attorneys, managers and business leaders skip that, too.

Zashin & Rich Co., L.P.A. presents you with a valuable opportunity to get the nutrition you need for breakfast and your brain. The Ohio Supreme Court has also approved these seminars for attorney CLE credit. Join Zashin & Rich attorneys for breakfast refreshments as they discuss topics from and take your questions about the ever-evolving world of workplace law:

Zashin & Rich Co., L.P.A.  presents
Overtime Over Your Head? Fair Labor Standards Act Update
This seminar will take place on November 10, 2005. Attorney Michele Jakubs will discuss a variety of useful FLSA topics, including:
  • how to determine whether an employee is exempt from overtime compensation (administrative, executive, professional, and others)
  • how to protect exempt status: dos and don'ts
  • how to understand what comprises working time, and what to do with waiting time, on-call time, break periods, training and the like
  • how to avoid overtime mishaps with hours, bonuses, and determining an employee's "regular rate"
  • what to do if your company makes a mistake

In addition, Attorney Christina Janice will discuss FLSA litigation and provide you with a useful understanding of:
  • collective actions, class actions, multidistrict litigation, and choice of remedy
  • which employers are subject to collective actions
  • current trends and recent decisions in class action FLSA litigation
  • defensive strategies for employers subject to collective actions
Details for the FLSA seminar:
Date: November 10, 2005
Time: 8:30 a.m.- 10:00 a.m.
How to register: call (216) 696-4441 and speak with Gwen Johnston

Because all seminars are strictly limited to 20 attendees, you must register for this seminar no later than November 8, 2005.

You may also register for our next breakfast seminar,
How Does Your Garden Grow? Cultivating a Union-Free Workplace
In this seminar, attorney Robert Hartman will discuss union organizing and union avoidance following recent developments involving the AFL-CIO. The information in this seminar will include:
  • current state of union organizing
  • exploring why employees unionize
  • proactive steps management can take to prevent union organizing
  • methods to win a union election campaign
Details for union organizing seminar:
Date: December 8, 2005
Time: 8:30 a.m.- 10:00 a.m.
How to register: call (216) 696-4441 and speak with Gwen Johnston

All brain · food · breakfast seminars:
  • take place at our offices. Call (216) 696-4441 for directions or more information.
  • begin with registration at 8:30 a.m. and conclude at 10:00 a.m.
  • are strictly limited to 20 attendees. You may register in advance by calling (216) 696-4441 (please ask for Gwen Johnston).
  • These courses have been approved by the Ohio Supreme Court Commission on Continuing Legal Education for 1.50 total CLE credit hours for each seminar (0.00 of ethics, 0.00 hour(s) of professionalism and 0.00 of substance abuse instruction).
  • cost $30.00 per session per attendee
  • include breakfast refreshments.
  • are led by Zashin & Rich attorneys who practice only workplace law all day, every day.
  • include time for your questions.
Join us for the brain · food · breakfast · law series. It's just good for you.

PRISON LOVE: California Puts Sexual Favoritism in the Slammer

By Lois A. Gruhin

The California Supreme Court recently expanded the grounds for employee harassment actions against employers. In Miller v. Department of Corrections, the court unanimously held that widespread sexual favoritism in the workplace may create an actionable hostile work environment under the state's anti-harassment law, the Fair Employment and Housing Act ("FEHA").

In Miller, two female former employees of a California prison ("the plaintiffs"), claimed that a supervisor accorded unwarranted favorable treatment to three female co-workers ("the paramours") with whom the supervisor had sexual affairs. The plaintiffs claimed that the supervisor's conduct constituted sexual discrimination and harassment in violation of FEHA. For example, one plaintiff served on an interview panel that evaluated applications for a promotion. Although the panel did not select one of the supervisor's paramours, who had applied for the promotion, the paramour nonetheless received the promotion, allegedly upon the supervisor's orders. When one of the plaintiffs competed for a promotion with a second paramour, the paramour again received the promotion, despite the plaintiff's higher rank, superior education, and greater experience.

The plaintiffs alleged a host of other conduct and unfair treatment they attributed to the supervisor's sexual relationships. The plaintiffs also alleged that their complaints were either ignored or dismissed. Both plaintiffs eventually resigned from their positions.

The lower courts awarded the employer summary judgment, finding, as have many other courts, that a supervisor's favoritism toward a workplace-lover does not constitute sexual harassment toward non-favored employees. The California Supreme Court reversed, however, finding that an employee may establish an actionable claim of sexual harassment under FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and to create a hostile work environment.

The court relied heavily on a 1990 Equal Employment Opportunity Commission ("EEOC") policy statement concerning employer liability for sexual favoritism under the Civil Rights Act of 1964 ("Title VII"). In its policy statement, the EEOC observed that:
although isolated instances of sexual favoritism in the workplace do not violate Title VII, widespread sexual favoritism may create a hostile work environment in violation of Title VII by sending the demeaning message that managers view female employees as 'sexual playthings' or that 'the way for women to get ahead in the workplace is by engaging in sexual conduct.'
The court concluded that this was just such a situation. The evidence suggested to the court that the supervisor "viewed female employees as 'sexual playthings' and that his ensuing conduct conveyed this demeaning message in a manner that had an effect on the workforce as a whole." Moreover, the court found that the supervisor's sexual favoritism blocked plaintiffs' advancement and caused them to suffer harassment at the hands of one of the supervisor's paramours, who the supervisor failed to control. The court therefore concluded that the evidence created at least a triable issue of fact.

So what does this case mean for employers? How much can employers possibly do to control workplace romances? Generally speaking, all employers, not just those doing business in California, should determine how they want to manage workplace relationships. Some companies go so far as to prohibit workplace relationships altogether, while other employers prohibit romantic relationships between supervisors and subordinates. Still others require employees engaged in romantic relationships to report the relationship to management. Some companies require that upon such a report, one employee transfer to another location or even leave the company's employ. Some companies require the employees to sign a "love contract" acknowledging the consensual nature of their relationship.

There may be wisdom in each of these choices. Employers should consider the best method for their size, legal jurisdiction, and corporate culture. All employers must, however, ensure that employees work in a hostility-free work environment even when co-workers have consensual sexual relationships. Regardless of how your company manages workplace romances, all employers should be familiar with one very important word: discretion. For more information about sexual favoritism in the workplace, please contact Zashin & Rich Co., L.P.A.

Last Chance Agreements ADA-Okay

By Stephen S. Zashin*

Drugs and alcohol adversely affect the lives of so many people on a personal level that sometimes employers overlook the profound impact of substance abuse on the workplace. Employers must manage employee substance abuse while remaining cognizant of federal and state disability laws. Under the Americans with Disabilities Act ("ADA"), drug rehabilitation is considered a disability, although current, illegal use of drugs is not protected. An employer cannot, therefore, discriminate against an individual who no longer engages in drug use and who participates in or who has successfully completed a drug treatment program.

Many employers have utilized "last chance agreements" to work with recovering employees returning to work after treatment. "Last chance" or return-to-work agreements generally require an employee to abide by an employer's rules concerning drug or alcohol use, treatment, and testing in exchange for continued employment.

Although many federal courts have determined that such agreements are valid under the ADA, Ohio courts have not really considered the question. Recently the Cuyahoga County Court of Common Pleas decided that it agrees "with those federal courts that have found that last chance agreements or return to work agreements...do not violate the ADA."

In Partlow v. Blue Coral-Slick 50, the employee informed the employer's human resources department that he had a drinking problem. Pursuant to the employer's drug policy, the employer made its employee assistance program ("EAP") available to the employee. The employee saw a counselor through the EAP and divulged during a counseling session that he also had a cocaine addiction and depression. The employee began outpatient counseling and continued working with no incident – until three weeks later, when he relapsed. The employee then entered a treatment facility, and the employer placed him on medical leave.

When the employee received permission to return to work, the employer presented him with a "return to work agreement." The employer conditioned the employee's continued employment on successful participation and completion of a treatment plan and any aftercare counseling and treatment; periodic unannounced drug and alcohol testing; and no drug or alcohol use. The agreement also stated that any failure to abide by all of its terms would be cause for termination and ineligibility for rehire. The employee signed the agreement and returned to work without incident-until about two weeks later when he was arrested for cocaine possession.

After the employee returned to work, the employer contacted his drug treatment therapist, who confirmed that the employee had relapsed into drug use. The employer determined that the employee had violated the terms of his return to work agreement and terminated his employment. The employee sued under the ADA and Ohio state law, arguing that the return to work agreement unlawfully changed the terms and conditions of his employment solely because he sought treatment for his addiction.

The court reviewed federal case law interpreting the ADA and agreed that last chance agreements do not violate state or federal disability laws. The court reviewed a Pennsylvania federal case, for example, that held that an alcoholic's violation of a last chance agreement did not constitute a discharge based solely on disability, but rather a discharge based upon a breach of the agreement. The Pennsylvania court said that to attribute the firing to alcoholism was "defective reasoning that skips the key step of reality, i.e., the prior accommodation to alcoholism."

The employer in Partlow helped itself immensely by going by the book: abiding by its own drug policy and referring the employee to its EAP; using a clear and comprehensive last chance agreement that kept it in the loop concerning the employee's treatment; and confirming information regarding the employee's relapse with his drug counselor. Unfortunately, the employer still ended up in court. However, there is now clear guidance from an Ohio court that last chance agreements in this context are okay.

Keep in mind, however, that last chance agreements should be drafted clearly and carefully to avoid violation of other state or federal laws. For more information about last chance agreements or other ADA-compliance issues, please contact Stephen Zashin at (216)696-4441 or ssz@zrlaw.com.

*Stephen S. Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in defending ADA based litigation. For more information about the Americans with Disabilities Act or state disability laws, please contact Stephen at (216) 696-4441 or ssz@zrlaw.com.

USERRA UPDATE: Finalization of New Regs Just Around the Corner

By Helena J. Oroz*

You probably know that the Uniformed Services Employment and Reemployment Rights Act of 1994, or USERRA, is a federal law that affects employment, reemployment and retention in employment, when employees serve or have served in the uniformed services. But did you know that new regulations implementing USERRA will go into effect soon?

The regulations clarify employer and employee responsibilities under USERRA in a question-and-answer format that covers USERRA's various provisions. The new regulations are expected to become finalized and effective by the close of 2005. As always, Zashin & Rich will keep you posted concerning these regulations.

*Helena Oroz practices in all areas of employment law and compliance issues.
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Friday, February 18, 2005

EMPLOYMENT LAW QUARTERLY | Spring 2005, Volume VII, Issue i

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LEGISLATIVE ALERT

By Stephen S. Zashin*

STATE: Tort Reform in Ohio
On January 6, 2005, Governor Taft signed Senate Bill 80 (“S.B. 80”) into law. S.B. 80 goes into effect on April 6, 2005. The new law does not affect economic compensatory damages, or those damages awarded to compensate a plaintiff for actual monetary losses, like lost wages or the cost of medical treatment. Rather, S.B. 80 caps the non-economic and punitive damages a plaintiff may receive in most tort actions.

Non-economic losses include damages awarded for mental anguish. S.B. 80 limits such damages to $250,000.00 or three times the economic losses, whichever is greater, up to a maximum of $350,000.00 per person and $500,000.00 per occurrence. This limitation does not, however, apply to injuries of a catastrophic nature.

S.B. 80 also limits the amount of punitive damages that a court may award based upon the size of the employer. For employers with 100 or less employees, and certain manufacturing sector employers with 500 or less employees, the law caps the amount of punitive damages that can be awarded at the lowest of:
  • twice the amount of compensatory damages awarded;
  • 10% of the employer’s net worth when the tort occurred; or
  • $350,000.00.
For all other employers, the law caps punitive damages at twice the amount of compensatory damages awarded. In addition, a court may not award prejudgment interest on punitive damage awards.

FEDERAL: Filing Fees Increase in U.S. District Courts
On December 8, 2004, President Bush signed an appropriations act into law that, in part, raises the civil filing fee in federal courts from $150.00 to $250.00. The change becomes effective on February 7, 2005. The civil federal filing fee was last increased nine years ago from $120.00 to $150.00.

*Stephen S. Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in defending employment based litigation. For more information about Ohio Tort Reform or other changes in federal or state employment laws, please contact Stephen at (216) 696-4441 or ssz@zrlaw.com.

SAY WHAT YOU MEAN: NLRB Continues Enforcement of “Clear and Unmistakable” Waiver Standard

By Robert W. Hartman

The National Labor Relations Board (“NLRB”), the federal body that administers the National Labor Relations Act (“the Act”), recently affirmed its position that employee waivers of statutorily granted rights must be clear and unmistakable. In Englehard Corp., the NLRB held that a broad no-strike provision in a union contract failed to do just that.

The employer and the union in Englehard were seemingly on the same page when they entered into their collective bargaining agreement. In the agreement, the parties included a statement of intention “to prevent any suspension of work due to labor disputes during the term of this Agreement.” The employer agreed not to lock out employees during the term of the agreement. The employer also agreed not to discriminate against any employee for resorting to the grievance procedure. In return, the union agreed that it would not “call, participate in, or sanction any strike, boycott, picketing, work-stoppage or slow-down whatsoever.”

Before the agreement expired, the union and the employer began negotiating a new contract. At the end of the third negotiating session, the employer declined to schedule further negotiations. To pressure the employer into returning to the bargaining table, the union decided to picket—but not at the employer’s plant. Instead, the union picketed the employer’s shareholder meeting, held about seventy miles away.

Approximately fifty employees attended the demonstration. The employees did not actively participate in the picketing, which the employer videotaped, but engaged in silent protest. The employer ultimately suspended thirty-eight employees for three days each for violating the no-strike provision. The union filed grievances on behalf of the thirty-eight suspended employees. When the employer refused to process the grievances, the union filed an unfair labor practice charge.

The employer argued that the employees, through their union, waived their right to engage in any kind of picketing or strike. The union clearly agreed that it would not “call, participate in, or sanction any strike, boycott, picketing, work-stoppage or slow-down whatsoever.” Any picketing, the employer reasoned, means what it says—including picketing its shareholder meeting.

The NLRB disagreed. Initially, the Board noted that any waiver of employee rights in a collective bargaining agreement must be “clear and unmistakable.” In this case, the Board held that the language of the parties’ agreement did not meet this standard. First, the parties mutually agreed to the no strike/no lockout provision to “prevent any suspension of work due to labor disputes.” This statement of intent effectively limited the application of the no strike/no lockout provision. The provision expressly prohibited any conduct that would reasonably lead to the suspension of work.

The Board then found that the union’s conduct could not reasonably have led to the suspension of work. First, the picketing occurred seventy miles away from the employer’s work site. Second, the employer had scheduled only three of the employees who attended the picketing to work at the plant that day, and those employees received advance permission to miss work. The Board found, therefore, that the picket did not cause a suspension of work.

Because the picket did not cause a suspension of work, the no strike/no lockout provision did not clearly and unmistakably waive the employees’ right to picket under these particular circumstances. The Board thus held that the employer violated the Act when it suspended the employees who participated in the picketing.

This case reinforces some basic principles with respect to collective bargaining agreements. First, the language in a collective bargaining agreement must clearly state the intent of the parties. Ambiguous language often leads to unintended results. Second, when the NLRB or other arbiter interprets a collective bargaining agreement, it considers the document as a whole, not particular language in isolation, to reach the parties’ intent. Broad statements of policy in an agreement can accordingly affect the interpretation of other provisions. Finally, any waiver of an employee’s statutory rights must be clear and unmistakable. If there is any ambiguity as to whether a union waived a statutory right, the NLRB will not likely find a waiver. Any waiver of statutory rights should, therefore, explicitly state the right waived in the most specific terms possible.

Z&R Update

Z&R Welcomes Two New Associates and Settles into a New Office Space

Zashin & Rich is always busy, but even busier than usual as of late with two new faces and a new work space to boot.

First, Z&R recently welcomed new additions to both its Employment and Labor and Domestic Relations practice groups.

Robert Hartman has joined the firm to practice in the areas of labor relations, employment discrimination, and all other employment-related issues. Rob works extensively in the areas of labor-management relations and the National Labor Relations Act (“NLRA”).

Rob joined Zashin & Rich in 2002 as a law clerk. He earned his law degree, cum laude, in May 2004 from the Case Western Reserve University School of Law and became a certified member of the Ohio Bar in November 2004. Rob is also certified to appear before the U.S. District Courts for both the Northern and Southern Districts of Ohio. Rob is a member of the Ohio State Bar Association.

Likewise, Z&R’s Domestic Relations group recently welcomed Ryan Long. Ryan practices in all areas of domestic relations law, including divorce and dissolution, spousal support, child support and property division.

Ryan earned his law degree in May 2004 from the Case Western Reserve University School of Law and became a certified member of the Ohio Bar in November 2004. Ryan is a member of the Ohio State, Cuyahoga County, and Medina County Bar Associations.

In other news...first Z&R’s Columbus office moved to its new space on the 19th Floor of the Fifth Third Center building on East State Street....then the Cleveland office took on taking over the 4th Floor at 55 Public Square.

Now that we have settled into our new spaces for the past several weeks, it finally feels like “home.” With all the glass, loft-like ceilings, and high-tech capabilities, we don’t look a lot like our old selves, but we are even better able to serve the needs of our clients. We invite all of our clients and friends to stop by and see us in Cleveland or Columbus.

WORKING UNDER THE INFLUENCE: The “Drug-Free Workplace” Gets Help Getting There

By Lois A. Gruhin

Ask anyone to think of a slice of American life that drug or alcohol abuse has adversely affected, and you will likely hear something about the dangers of people driving, flying, or boating under the influence. What about working under the influence?

According to the Ohio Bureau of Workers’ Compensation (“BWC”), 38% to 50% of nationwide workers’ compensation claims are related to alcohol or drug abuse in the work place, and 47% of serious workplace accidents and 40% of fatal work place accidents have drug and/or alcohol involvement.

To combat these problems, many employers now have Drug-Free Workplace Policies in place. The BWC even provides discounts to qualifying state-fund employers that implement some version of a Drug-Free Workplace Policy. Having the right policy can only do so much, however, and many employers still must deal with drug- or alcohol-related accidents.

A change in Ohio law now gives employers a leg up in defending against such claims with the “rebuttable presumption” law that took effect this past October. Under the old law, employers had to prove, usually through medical testimony, that an injured employee should be disqualified from receiving workers’ compensation. Employers are still free to drug test after an accident and use medical testimony to defend claims, but the new law allows employers to presume that an employee’s injury resulted from working under the influence. The new law shifts the burden of proof to the employee. Now it is up to the injured employee to rebut, or disprove that presumption.

An employer can presume that the employee was injured as a result of substance abuse as a result of (1) a positive “qualifying chemical test” OR (2) the employee’s refusal to submit to the drug test. The employer must, however, post a written notice explaining that the results of, or refusal to submit to a chemical test can affect eligibility for workers’ compensation benefits. This notice must be at least the same size as the employer’s BWC certificate and must be posted in the same location.

A “qualifying medical test” must be conducted by a certified laboratory that meets or exceeds the U.S. Department of Health and Human Services standards. It also means that the employer administered the test because it had “reasonable cause” to suspect that the employee was under the influence. “Reasonable cause” can be:
  • direct observation of use/possession/distribution of drugs or alcohol, or physical symptoms of being under the influence;
  • a pattern of abnormal conduct, erratic behavior, or deteriorating work performance not attributable to other factors;
  • identification of the employee as the focus of a criminal investigation involving controlled substances;
  • a report of use of drugs or alcohol by a reliable source; or
  • repeated/flagrant violations of safety/work rules.
If an employer can submit evidence that it complied with these requirements, the burden falls on the employee to prove that the employee’s use of drugs or alcohol did not cause the injury. The new law may not look like a proactive measure in the drug-free workplace movement, but it might make employees think twice about working under the influence.

WHAT’S UP WITH FORM I-9? Myth Busters for Those Confused About Employment Verification

By Michele L. Jakubs*

It may seem like every time you turn around these days, there is new legislation out there affecting your business—or at least your HR manager. Unfortunately, sometimes the word on the street about a new rule or modified paperwork generates confusion for employers. The buzz around Form I-9 is one such example.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“the Act”) requires employers to verify both the employment eligibility and identify of all new hires. The Immigration and Naturalization Service (“INS”) designated the Form I-9 for this purpose.

The Act’s implementing regulations provide for three lists of documents to accomplish verification. Acceptable “List A” documents establish both identify and employment eligibility. Acceptable “List B” documents establish identity only. Acceptable “List C” documents establish employment eligibility only. The current Form I-9 in use lists these documents in handy columns. The word on the street though is that there are new I-9 rules and maybe even a new Form I-9 floating out there somewhere. To clarify these and other burning questions, consider the following myths and myth busters:

Myth #1: I heard there is a new version of Form I-9 that I should be using, so why didn’t the INS tell anybody?

First, the INS is no more. As of March 1, 2003, the INS transitioned into several parts of the Department of Homeland Security, including the U.S. Citizenship and Immigration Service (“USCIS”).

Second, CIS has not issued a new version of Form I-9. The current version is dated 11/21/91. CIS is currently revising the Form and may make a revised version available sometime in 2005. To date, CIS has not set a release date.

Myth #2: I also heard that there are a bunch of new rules going into effect that will change the type of documents I can accept for verification purposes.

Passing new regulations is often a long, complicated process that involves several stages of rules (proposed, interim, and final) and intervening periods of public comment. Interim and final rules have the force of law, but proposed rules do not. You may have heard about proposed changes to the employment verification rules that came out in February of 1998. Those rules are not currently in effect.

The current rules describing acceptable documents for verification have not changed since September of 1997. These interim rules made some changes to the lists of acceptable documents in effect at that time.

Myth #3: Great, that clears things up. It’s good to know that the Form I-9 hasn’t changed and is totally accurate.

You should be aware that the list of “List A” documents on Form I-9 is not accurate. Apparently, no one has had time to revise Form I-9 since 1991, so the changes made eight years ago are not reflected on the “current form.” Therefore, you should not accept the following “List A” documents:
  • Certificate of U.S. Citizenship (Form N-560 or N-561)
  • Certificate of Naturalization (Form N-550 or N-570)
  • Form I-151
  • Unexpired Reentry Permit (Form I-327)
  • Unexpired Refugee Travel Document (Form I-571)
Although not included as a “List A” document, you may additionally accept Form I-766.

Myth #4: Fantastic, somebody just yesterday handed me a Form N-560, which I accepted as proof of their identity and employment eligibility. I’m in serious trouble.

Unlikely. The point of the interim rule was to maintain the status quo as much as possible while still making changes required by law. The INS understood that employers would not have much notice of the changes or a revised Form I-9 reflecting the changes. For these reasons the INS, and now the CIS, has forgone enforcement against employers who “continue to act in reliance upon and in compliance with existing employment verification forms, guidance, and procedures.” You are not in serious trouble—but you should comply with the current law next time.

*Michele L. Jakubs practices in all areas of employment litigation. For more information on wage and hour compliance other employment-related record keeping, please contact Michele at mlj@zrlaw.com or (216) 696-4441.

MILITARY LEAVE UPDATE: USERRA Extends Continuation Coverage for Employees Called to Serve

By Helena Oroz*

USERRA (the Uniformed Services Employment and Reemployment Act of 1994) is the federal law that grants employees on military leave reemployment rights upon return. President Bush signed new language into law on December 10, 2004 that amends USERRA.

USERRA originally required employers to offer health care continuation to eligible employees called up to military active duty (and their dependents) for up to 18 months. The new law extends coverage rights for up to 24 months at the employee’s cost. This change affects individuals electing coverage beginning on and after December 10, 2004.

An employer may require a person electing continuation coverage under this USERRA provision to pay up to 102% of the full premium under the plan. However, if the person performs service in the uniformed services for less than 31 days, an employer cannot require the person to pay more than the employee share, if any, for the coverage.

In addition, employers must provide a notice of USERRA rights and obligations to employees, either through a general posting or otherwise, on an annual basis. Employers must provide or post the notice starting March 10, 2005. The U.S. Department of Labor will likely issue in the interim a model notice that employers may use to fulfill this obligation.

*Helena Oroz practices in all areas of employment law, as well as benefits litigation and compliance issues.
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