*By Scott Coghlan
On July 21, 2016, the Ohio Supreme Court held that an employee can assert a viable workers’ compensation retaliation claim in the absence of proof of an actual workplace injury. Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027. The decision resolved a split among Ohio’s appellate courts and conclusively establishes that Ohio employers may be liable for retaliation under the workers’ compensation law even in cases where the underlying workers’ compensation claim is denied.
The plaintiff in Onderko left work early after experiencing pain in his knee. On the way home, the plaintiff’s knee gave out as he stepped off a curb at a gas station. Upon seeking medical attention, the plaintiff only informed his doctor about the gas station incident and not the pain he felt while at work. Plaintiff alleged he did not mention the pain at work due to concerns he would be fired by his employer. The plaintiff subsequently filed a claim with the Ohio Bureau of Workers’ Compensation (“BWC”), claiming he injured his knee at work. Eventually, a hearing officer denied the claim and the plaintiff did not appeal the denial. Shortly thereafter, the employer fired the plaintiff “for his ‘deceptive’ attempt to obtain workers’ compensation benefits for a non‑work-related injury.” The plaintiff filed suit against the employer, asserting a claim under Ohio Revised Code 4123.90, which prohibits employers from terminating or taking punitive action against employees for filing claims with the BWC “for an injury or occupational disease which occurred in the course of and arising out of [the employee’s] employment with that employer.”
Seeking to have the claim dismissed, the employer in Onderko argued that, to state a viable claim under R.C. 4123.90, the plaintiff must prove that the underlying BWC claim involved an actual work-related injury. The employer also argued the plaintiff could not relitigate the issue of whether he suffered a workplace injury, based upon the un-appealed decision of the hearing officer denying his BWC claim. The trial court agreed with the employer, but the Sixth District Court of Appeals reversed.
On appeal, the Ohio Supreme Court held “the elements of a prima facie case of retaliatory discharge under the statute do not require the plaintiff to prove that the injury occurred on the job.” Furthermore, “[b]ecause proof of a work-related injury is not an element of a prima facie case of retaliatory discharge, failure to appeal the denial of a workers’ compensation claim does not foreclose a claim for retaliatory discharge.” The Court explained that the “language of the statute hinges on the employer’s response to the plaintiff’s pursuit of benefits, not the award of benefits.” Conditioning a retaliation claim upon the successful assertion of a BWC claim would miss “the point of the statute, which is to enable employees to freely exercise their rights without fear of retribution from employers.”
The Court also addressed employer concerns relating to fraudulent BWC claims. The Court noted that filing a false claim or making misleading statements to secure workers’ compensation is a crime and grounds for termination. However, the Court “resist[ed] interpreting the antiretaliation statute in such a way that would vest employers with the discretion to label any unsuccessful claim as deceptive and then terminate the employee.”
Accordingly, Ohio employers should be aware that they may be subject to a retaliation claim for taking adverse action against an employee who has filed a workers’ compensation claim, even if that claim is disallowed. If an employer believes an employee has filed a fraudulent BWC claim, they should contact counsel and conduct a thorough investigation prior to taking any adverse action that is premised upon the filing of a BWC claim.
*Scott Coghlan chairs the firm’s Workers’ Compensation Group. For more information about this decision, or workers’ compensation law in general, please contact Scott (sc@zrlaw.com) at 216.696.4441.
Showing posts with label Wrongful Discharge. Show all posts
Showing posts with label Wrongful Discharge. Show all posts
Wednesday, July 27, 2016
Wednesday, March 9, 2011
EMPLOYMENT LAW QUARTERLY | Winter 2011, Volume XIII, Issue i
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A California court recently held that emails between an employee and his or her attorney are not privileged and confidential if sent or received via the employee's work email. Holmes v. Petrovich Development Co., LLC, 2011 Cal. App. LEXIS 33 (Cal. App. 3d Dist. Jan. 13, 2011).
Gina Holmes worked at Petrovich Development ("Petrovich") for two months as an administrative assistant. She quit after her boss made several comments regarding her pregnancy. Holmes alleged sexual harassment, retaliation, wrongful discharge in violation of public policy, violation of her right to privacy, and intentional infliction of emotional distress. The case, however, came to a quick close after Petrovich showed that Holmes only sued after being prodded by a lawyer. Petrovich did this by using emails Holmes sent and received from her attorney through her work email account.
In determining whether the emails sent from Holmes's work account were discoverable, the court examined whether the emails were confidential and whether any privilege applied. The court found that emails sent by Holmes to her attorney regarding possible legal action against her former employer did not constitute "confidential communication between client and lawyer" within the meaning of California's Evidence Code § 952. The court reasoned that the emails sent via her company computer "were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him."
The court concluded that the emails were not protected because Holmes used her work email account to send the emails to her attorney. Petrovich also told Holmes of the company's policy (via employee handbook) that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal email. The employee handbook further warned that the company would monitor its computers for compliance with this company policy and thus might "inspect all files and messages . . . at any time." Id. Additionally, Petrovich explicitly advised Holmes that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message." Id.
This ruling, while based on California Evidence Rules, could have a significant impact on the developing area of e-discovery and attorney-client privilege issues. This decision reflects the ever-changing area of attorney-client privilege in the era of emails and social media.
*Jason Rossiter practices in all areas of employment litigation and is licensed to practice law in Ohio, Pennsylvania, and California. For more information about the developing area of e-discovery and attorney-client privilege issues, please contact Zashin & Rich at 216.696.4441.
By Patrick J. Hoban*
Timothy Lewis ("Lewis"), a former supervisor at Whirlpool's plant in Marion, Ohio, brought a claim for wrongful termination in violation of Ohio public policy. The United States District Court dismissed Lewis' complaint for lack of subject matter jurisdiction, holding that his claim was preempted by the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158. The United States Sixth Circuit Court of Appeals recently upheld the dismissal. See Lewis v. Whirlpool Corp., No. 09-4231, 2011 U.S. App. LEXIS 593 (6th Cir. Jan. 12, 2011).
Whirlpool employed Lewis from 1997 until 2007. In 2004, several Whirlpool employees began wearing pro-union shirts and meeting with union representatives. Whirlpool's Marion facility was not unionized at the time. Lewis contended that he was pressured to "build a case" against two pro-union employees. He claimed that Whirlpool told him if he did not terminate two of the employees that Whirlpool would retaliate against him. He further claimed that Whirlpool transferred him to a less-desired area of the facility after he refused to terminate the employees.
Whirlpool discharged Lewis on April 2, 2007, for improperly clocking in one employee using the time badge of a different employee. Lewis presented evidence that another employee actually committed the transgression, but to no avail.
After his termination, Lewis filed a charge with the National Labor Relations Board ("NLRB"). The NLRB conducted an investigation and found that Whirlpool did not violate the NLRA. Specifically, the NLRB stated the charge was "without merit since no clear evidence established that it terminated [Lewis'] employment . . . because [he] refused to commit unfair labor practices on its behalf during a previous union organizing campaign some three years earlier." The NLRB informed Lewis that if he did not voluntarily withdraw his charge, the NLRB would withdraw it for lack of merit.
The Sixth Circuit found that Lewis's claim was subject to the Garmon preemption. See San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). In Garmon, the United States Supreme Court held "[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the NLRA, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that . . . jurisdiction must yield to the NLRB." Id. at 244. The Court found that Lewis was essentially alleging an unfair labor practice under the NLRA and his remedy was exclusively with the NLRB. The Court further when on to state that Lewis could have brought (and did bring) a claim before the NLRB – and that the claim he asserted in his Complaint was identical to the claim he brought before the NLRB.
Lewis argued that the preemption should not apply because as a "supervisor" he was not covered by the NLRA, but the Court was not persuaded. The Court stated that a "supervisor does have a viable claim under the NLRA when terminated or otherwise disciplined for refusing to commit unfair labor practices." See Lewis, 2011 U.S. App. LEXIS 593 at *6-7. The Court found "[t]he sole dispositive inquiry for [his] claims is whether Lewis was terminated for the failure to commit unfair labor practices." Id. at *7. Holding that charge with the NLRB and his Court action were identical, the Court held that Lewis' wrongful termination claim was preempted and dismissed his suit. This case reinforces the wide jurisdiction of the NLRB over labor claims and reminds employers to be mindful of whether they are properly in the court system.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about the NLRA or labor law, please contact Pat at 216.696.4441 or pjh@zrlaw.com.
By Stefanie L. Baker
Recently, the United States Supreme Court held in Thompson v. North American Stainless, LP, No. 09-291, 562 U.S. __ (2011) that a terminated employee may have a claim for retaliation under Title VII -- even if the employee never engaged in protected activity. An employee may have a Title VII claim if he alleges that his termination was in response to another employee's allegations of discrimination.
The petitioner in this case, Eric Thompson ("Thompson"), worked at North American Stainless ("North American") with his fiancée (now wife) Miriam Regalado ("Regalado"). Regalado filed a sex discrimination charge against North American. Three weeks after North American was notified of Regalado's complaint, Thompson was fired for "performance-based reasons."
Thompson filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination and retaliatory discharge under Title VII. The EEOC issued Thompson a right to sue letter, and he filed suit. The court granted summary judgment for North American, asserting that Title VII did not permit a retaliatory discharge claim by a plaintiff who did not engage in protected activity himself. The Sixth Circuit initially reversed. Later, sitting en banc, the Sixth Circuit affirmed the Trial Court's decision that Thompson was not protected under Title VII.
As it turns out the Sixth Circuit had it right the first time, as the United States Supreme Court reversed, stating that Thompson could bring his claims under Title VII because he fell within the "zone of interest" protected by Title VII. According to the Court, the case presented two questions: (1) was Thompson's termination unlawful, and (2) if so, did he have a cause of action.
The court quickly answered the first question in the affirmative, stating that a reasonable worker would be dissuaded from engaging in protected activity based upon the circumstances in this case. In answering the second question, the Court advanced the "zone of interest" test. An employee falls within the zone if: (1) he is an employee of the company; (2) he was not an accidental victim of retaliation; (3) he was injured as a means of harming the employee who engaged in protected activity; and (4) injuring the employee was the unlawful act by which the employer punished the other employee. The Court found that Thompson fell within the intended protected class under Title VII.
This case illustrates the willingness of the Court to extend protections to employees in retaliation cases. However, the Court refused to draw a bright-line rule as to where the "zone of interest" stops. From this case, it is clear that termination of a fiancé would create a third-party cause of action under Title VII. Time will tell how far beyond that the courts will extend the zone. Employers now must handle with care employees who engage in protected activity, and those closely associated with them.
by Lois A. Gruhin
Plaintiffs in Ohio may now have an easier time proving age discrimination. The Tenth Appellate District recently held that Ohio's Age Discrimination Statute, Ohio Revised Code § 4112, does not require a plaintiff to prove that her age was the "but-for" cause for termination. See Thomas v. Columbia Sussex Corp., 2011-Ohio-17 (10th App. Dist. Jan. 6, 2011).
The Age Discrimination Employment Act of 1967 ("ADEA") states that an employer cannot discharge an employee "because of" her age. See 29 U.S.C. § 623(A)(1). In Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009), the Supreme Court held that the phrase "because of" or "by reason of" requires at least a showing of "but-for" causation. As a result, a plaintiff who filed suit under the federal ADEA must prove that but for her age, she would not have been terminated.
Plaintiff Charlotte Thomas sued her former employer, the Courtyard by Marriott Hotel ("Marriott"), after the hotel discharged her. Thomas brought her claim under Ohio age discrimination law and not the ADEA. Thomas was 67 at the time of her termination. Based on Gross, the employer requested a "but-for" jury instruction. The trial court refused and instructed the jury to consider whether the plaintiff's age was "a determining factor" in Marriott's decision to terminate her employment.
The Tenth Appellate District rejected the employer's argument that the jury instructions were improper. The court held that the phrase "a determining factor" did not alter the burden of proof set forth in Gross. The court further held that "a determining factor" was the equivalent causation required under the Gross decision. Additionally, the court stated that the jury instructions made clear that Thomas always retained the burden of proving discrimination based upon her age. The court was not required to use the exact phrase requested by the employer – especially because the Gross decision states that "but-for" can mean many things, including "based on," "by reason of," and "because of."
The Thomas decision likely will shape Ohio's age discrimination law and the jury instructions appropriate under Ohio Revised Code § 4112. Proving age was the "but-for" reason for termination is arguably a more difficult burden than that required by Thomas. As a result, plaintiffs in Ohio now may have an easier time proving age discrimination under Ohio law as compared to the ADEA. This case is now on appeal to the Ohio Supreme Court. We will continue to keep you advised of the age discrimination standard under Ohio law.
By David R. Vance*
On November 4, 2010, Massachusetts’ “ban the box” law became effective. The law prohibits both private and public employers from asking questions about an applicant’s criminal history on written job applications. The law’s moniker comes from the commonly used check “yes” or “no” boxes used to respond to questions related to an employee’s criminal history. As of November 4, 2010, Massachusetts banned the use of such boxes or related questions. The law includes a few exceptions for certain jobs and smaller employers. In addition, national or international employers that hire individuals in Massachusetts may continue to ask about an applicant’s criminal history on their applications so long as they include an obvious disclaimer notifying Massachusetts applicants that they need not answer such questions.
If you are an employer operating in Massachusetts and have not done so already, you should change your application to comply with this new law.
*David R. Vance practices in all areas of employment law. For more information about hiring laws or other employment matters, please contact David at 216.696.4441 or drv@zrlaw.com.
By Stephen S. Zashin*
On December 13, 2010, New York legislators passed the Wage Theft Prevention Act (“the Act”) which becomes effective April 9th, 2011. The Act imposes new regulations regarding the payment of wages and increases the penalties for wage payment violations.
New York law currently requires employers to inform new hires of their designated pay date, rate, and overtime rate (if applicable). The Act expands this regulation and requires employers to issue a notice with similar information upon hire and by February 1st of every year. This notice must include: dates of work covered, employer’s address and telephone number, the rate of pay and the manner in which it is paid (hourly, salary, commission), gross wages, net wages, deductions, and allowances against minimum wage. The notice for non-exempt employees also must include: the regular rate, overtime rate, and the number of regular and overtime hours worked. Additionally, employers must keep records for six years, which include written notices and accompanying written acknowledgements.
The Act also provides penalties for employers who violate the regulations permitting employees to recover damages through civil action. Employers can avoid these penalties by making complete and timely payment to employees. The Act affects virtually all New York employers. As a result, New York employers should review their payroll practices to ensure compliance with the Act.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law,is licensed to practice law in Ohio and New York. Stephen’s practice encompasses all areas of employment and labor law. For moreinformation about wage and hour laws or any other employment matter, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
By Ami J. Patel*
According to data from the Bureau of National Affairs, Inc. (“BNA”), first-year wages in collective bargaining agreements reviewed increased 1.6 percent. This is down from the prior year’s 2.3 percent increase and represents a national shift to smaller increases. BNA found decreases across the board in all sectors. For 2010, the median first-year wage increase was 1.7 percent as compared to 2009’s 2.5 percent, while the weighted average was 1.8 percent in 2010 and 2.7 percent in 2009.
In addition to smaller wage increases, retirement plans, insurance costs, and other employee benefits were major topics of negotiation during 2010. Employers must consider changes in these as well as other employee benefits when evaluating these figures. For example, factoring lump-sum payments into the wage calculations creates a 2010 first-year average wage increase of 1.9 percent, as compared with 2.6 percent in 2009. When excluding construction and state and local government agencies, the number jumps dramatically. Without these entities, the 2010 increase was 2.5 percent and the 2009 increase was 3.1 percent.
It is difficult to get a picture of collective bargaining by looking only at first-year wage increases, but the numbers are instructive and can be used during negotiations.
*Ami J. Patel practices in all areas of labor and employment law, with a focus on private and public sector labor law. For more information on BNA statistics or any other labor or employment issue, contact Ami at 216.696.4441 or ajp@zrlaw.com.
Zashin & Rich Co., L.P.A. is pleased to announce the addition of Ami J. Patel to its Employment and Labor Group.
Ami’s practice focuses on private and public sector labor relations and employment issues.
Prior to joining Zashin & Rich Co., L.P.A., Ami worked as an Assistant Director of Law for the City of Cleveland. Ami's experience includes advising and defending management in FMLA, FLSA, ADA, ADEA, Title VII, and USERRA issues, wage and hour disputes, and disciplinary matters. She has experience analyzing civil service status and representing employers at arbitration hearings, the State Employment Relations Board, the Equal Employment Opportunity Commission and in state and federal courts.
Ami earned her B.A from Ohio University, magna cum laude. She then earned her law degree (J.D.) from Case Western Reserve University. Ami is admitted to practice law in the State of Ohio, the United States District Court for Northern Ohio, and the Sixth Circuit Court of Appeals. She is a member of the Cleveland Metropolitan Bar Association.
Please join us in welcoming Ami to Z&R!
Senate Bill 5 - FREE Seminar
Tuesday, April 12, 2011
10:00 am - Noon (lunch to follow)
Location:
Quicken Loans Arena
1 Center Court
Cleveland, Ohio 44115
Northeast Arcade Entrance
(Next to the Team Shop)
Description: Zashin & Rich Co., L.P.A. presents a free seminar regarding Senate Bill 5, including a comprehensive review of the new law, analysis of its effect on your collective bargaining issues, and strategies for using the new provisions to your best advantage, as well as the likely challenges posed by organized labor (referendum, lawsuits).
CLE credits are pending.
There is limited seating available for this free seminar. To make a reservation or receive more information, please contact Heather Hatfield at 216.696.4441.
Zashin & Rich Congratulates its
2011 SUPER LAWYERS
George S. Crisci
Jon M. Dileno
Andrew A. Zashin
Stephen S. Zashin
2011 RISING STARS
Patrick J. Hoban
Jason Rossiter
David R. Vance
Patrick M. Watts
- Before You Hit "Send" – Attorney-Client Privilege May Not Apply to Your Work Emails!
- National Labor Relations Act Preempts State Wrongful Discharge Claim
- You're (Not) Fired – Supreme Court Holds that Title VII's Retaliation Protection Extends to Third Parties
- Is it Easier to Prove Age Discrimination Under Ohio Law?
- Massachusetts' "Ban the Box" Law Became Effective November 4, 2010
- New York's Wage Theft Prevention Act Becomes Effective April 9, 2011
- Collective Bargaining Contracts in 2010 Had a Modest 1.6 Percent Average First-Year Wage Hike
- Z&R Shorts
Before You Hit "Send" – Attorney-Client Privilege May Not Apply to Your Work Emails!
By Jason Rossiter*A California court recently held that emails between an employee and his or her attorney are not privileged and confidential if sent or received via the employee's work email. Holmes v. Petrovich Development Co., LLC, 2011 Cal. App. LEXIS 33 (Cal. App. 3d Dist. Jan. 13, 2011).
Gina Holmes worked at Petrovich Development ("Petrovich") for two months as an administrative assistant. She quit after her boss made several comments regarding her pregnancy. Holmes alleged sexual harassment, retaliation, wrongful discharge in violation of public policy, violation of her right to privacy, and intentional infliction of emotional distress. The case, however, came to a quick close after Petrovich showed that Holmes only sued after being prodded by a lawyer. Petrovich did this by using emails Holmes sent and received from her attorney through her work email account.
In determining whether the emails sent from Holmes's work account were discoverable, the court examined whether the emails were confidential and whether any privilege applied. The court found that emails sent by Holmes to her attorney regarding possible legal action against her former employer did not constitute "confidential communication between client and lawyer" within the meaning of California's Evidence Code § 952. The court reasoned that the emails sent via her company computer "were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him."
The court concluded that the emails were not protected because Holmes used her work email account to send the emails to her attorney. Petrovich also told Holmes of the company's policy (via employee handbook) that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal email. The employee handbook further warned that the company would monitor its computers for compliance with this company policy and thus might "inspect all files and messages . . . at any time." Id. Additionally, Petrovich explicitly advised Holmes that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message." Id.
This ruling, while based on California Evidence Rules, could have a significant impact on the developing area of e-discovery and attorney-client privilege issues. This decision reflects the ever-changing area of attorney-client privilege in the era of emails and social media.
*Jason Rossiter practices in all areas of employment litigation and is licensed to practice law in Ohio, Pennsylvania, and California. For more information about the developing area of e-discovery and attorney-client privilege issues, please contact Zashin & Rich at 216.696.4441.
National Labor Relations Act Preempts State Wrongful Discharge Claim
By Patrick J. Hoban*
Timothy Lewis ("Lewis"), a former supervisor at Whirlpool's plant in Marion, Ohio, brought a claim for wrongful termination in violation of Ohio public policy. The United States District Court dismissed Lewis' complaint for lack of subject matter jurisdiction, holding that his claim was preempted by the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158. The United States Sixth Circuit Court of Appeals recently upheld the dismissal. See Lewis v. Whirlpool Corp., No. 09-4231, 2011 U.S. App. LEXIS 593 (6th Cir. Jan. 12, 2011).
Whirlpool employed Lewis from 1997 until 2007. In 2004, several Whirlpool employees began wearing pro-union shirts and meeting with union representatives. Whirlpool's Marion facility was not unionized at the time. Lewis contended that he was pressured to "build a case" against two pro-union employees. He claimed that Whirlpool told him if he did not terminate two of the employees that Whirlpool would retaliate against him. He further claimed that Whirlpool transferred him to a less-desired area of the facility after he refused to terminate the employees.
Whirlpool discharged Lewis on April 2, 2007, for improperly clocking in one employee using the time badge of a different employee. Lewis presented evidence that another employee actually committed the transgression, but to no avail.
After his termination, Lewis filed a charge with the National Labor Relations Board ("NLRB"). The NLRB conducted an investigation and found that Whirlpool did not violate the NLRA. Specifically, the NLRB stated the charge was "without merit since no clear evidence established that it terminated [Lewis'] employment . . . because [he] refused to commit unfair labor practices on its behalf during a previous union organizing campaign some three years earlier." The NLRB informed Lewis that if he did not voluntarily withdraw his charge, the NLRB would withdraw it for lack of merit.
The Sixth Circuit found that Lewis's claim was subject to the Garmon preemption. See San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). In Garmon, the United States Supreme Court held "[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the NLRA, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that . . . jurisdiction must yield to the NLRB." Id. at 244. The Court found that Lewis was essentially alleging an unfair labor practice under the NLRA and his remedy was exclusively with the NLRB. The Court further when on to state that Lewis could have brought (and did bring) a claim before the NLRB – and that the claim he asserted in his Complaint was identical to the claim he brought before the NLRB.
Lewis argued that the preemption should not apply because as a "supervisor" he was not covered by the NLRA, but the Court was not persuaded. The Court stated that a "supervisor does have a viable claim under the NLRA when terminated or otherwise disciplined for refusing to commit unfair labor practices." See Lewis, 2011 U.S. App. LEXIS 593 at *6-7. The Court found "[t]he sole dispositive inquiry for [his] claims is whether Lewis was terminated for the failure to commit unfair labor practices." Id. at *7. Holding that charge with the NLRB and his Court action were identical, the Court held that Lewis' wrongful termination claim was preempted and dismissed his suit. This case reinforces the wide jurisdiction of the NLRB over labor claims and reminds employers to be mindful of whether they are properly in the court system.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about the NLRA or labor law, please contact Pat at 216.696.4441 or pjh@zrlaw.com.
You're (Not) Fired – Supreme Court Holds that Title VII's Retaliation Protection Extends to Third Parties
By Stefanie L. Baker
Recently, the United States Supreme Court held in Thompson v. North American Stainless, LP, No. 09-291, 562 U.S. __ (2011) that a terminated employee may have a claim for retaliation under Title VII -- even if the employee never engaged in protected activity. An employee may have a Title VII claim if he alleges that his termination was in response to another employee's allegations of discrimination.
The petitioner in this case, Eric Thompson ("Thompson"), worked at North American Stainless ("North American") with his fiancée (now wife) Miriam Regalado ("Regalado"). Regalado filed a sex discrimination charge against North American. Three weeks after North American was notified of Regalado's complaint, Thompson was fired for "performance-based reasons."
Thompson filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination and retaliatory discharge under Title VII. The EEOC issued Thompson a right to sue letter, and he filed suit. The court granted summary judgment for North American, asserting that Title VII did not permit a retaliatory discharge claim by a plaintiff who did not engage in protected activity himself. The Sixth Circuit initially reversed. Later, sitting en banc, the Sixth Circuit affirmed the Trial Court's decision that Thompson was not protected under Title VII.
As it turns out the Sixth Circuit had it right the first time, as the United States Supreme Court reversed, stating that Thompson could bring his claims under Title VII because he fell within the "zone of interest" protected by Title VII. According to the Court, the case presented two questions: (1) was Thompson's termination unlawful, and (2) if so, did he have a cause of action.
The court quickly answered the first question in the affirmative, stating that a reasonable worker would be dissuaded from engaging in protected activity based upon the circumstances in this case. In answering the second question, the Court advanced the "zone of interest" test. An employee falls within the zone if: (1) he is an employee of the company; (2) he was not an accidental victim of retaliation; (3) he was injured as a means of harming the employee who engaged in protected activity; and (4) injuring the employee was the unlawful act by which the employer punished the other employee. The Court found that Thompson fell within the intended protected class under Title VII.
This case illustrates the willingness of the Court to extend protections to employees in retaliation cases. However, the Court refused to draw a bright-line rule as to where the "zone of interest" stops. From this case, it is clear that termination of a fiancé would create a third-party cause of action under Title VII. Time will tell how far beyond that the courts will extend the zone. Employers now must handle with care employees who engage in protected activity, and those closely associated with them.
Is it Easier to Prove Age Discrimination Under Ohio Law?
by Lois A. Gruhin
Plaintiffs in Ohio may now have an easier time proving age discrimination. The Tenth Appellate District recently held that Ohio's Age Discrimination Statute, Ohio Revised Code § 4112, does not require a plaintiff to prove that her age was the "but-for" cause for termination. See Thomas v. Columbia Sussex Corp., 2011-Ohio-17 (10th App. Dist. Jan. 6, 2011).
The Age Discrimination Employment Act of 1967 ("ADEA") states that an employer cannot discharge an employee "because of" her age. See 29 U.S.C. § 623(A)(1). In Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009), the Supreme Court held that the phrase "because of" or "by reason of" requires at least a showing of "but-for" causation. As a result, a plaintiff who filed suit under the federal ADEA must prove that but for her age, she would not have been terminated.
Plaintiff Charlotte Thomas sued her former employer, the Courtyard by Marriott Hotel ("Marriott"), after the hotel discharged her. Thomas brought her claim under Ohio age discrimination law and not the ADEA. Thomas was 67 at the time of her termination. Based on Gross, the employer requested a "but-for" jury instruction. The trial court refused and instructed the jury to consider whether the plaintiff's age was "a determining factor" in Marriott's decision to terminate her employment.
The Tenth Appellate District rejected the employer's argument that the jury instructions were improper. The court held that the phrase "a determining factor" did not alter the burden of proof set forth in Gross. The court further held that "a determining factor" was the equivalent causation required under the Gross decision. Additionally, the court stated that the jury instructions made clear that Thomas always retained the burden of proving discrimination based upon her age. The court was not required to use the exact phrase requested by the employer – especially because the Gross decision states that "but-for" can mean many things, including "based on," "by reason of," and "because of."
The Thomas decision likely will shape Ohio's age discrimination law and the jury instructions appropriate under Ohio Revised Code § 4112. Proving age was the "but-for" reason for termination is arguably a more difficult burden than that required by Thomas. As a result, plaintiffs in Ohio now may have an easier time proving age discrimination under Ohio law as compared to the ADEA. This case is now on appeal to the Ohio Supreme Court. We will continue to keep you advised of the age discrimination standard under Ohio law.
Massachusetts’ “Ban the Box” Law Became Effective November 4, 2010
By David R. Vance*
On November 4, 2010, Massachusetts’ “ban the box” law became effective. The law prohibits both private and public employers from asking questions about an applicant’s criminal history on written job applications. The law’s moniker comes from the commonly used check “yes” or “no” boxes used to respond to questions related to an employee’s criminal history. As of November 4, 2010, Massachusetts banned the use of such boxes or related questions. The law includes a few exceptions for certain jobs and smaller employers. In addition, national or international employers that hire individuals in Massachusetts may continue to ask about an applicant’s criminal history on their applications so long as they include an obvious disclaimer notifying Massachusetts applicants that they need not answer such questions.
If you are an employer operating in Massachusetts and have not done so already, you should change your application to comply with this new law.
*David R. Vance practices in all areas of employment law. For more information about hiring laws or other employment matters, please contact David at 216.696.4441 or drv@zrlaw.com.
New York’s Wage Theft Prevention Act Becomes Effective April 9, 2011
By Stephen S. Zashin*
On December 13, 2010, New York legislators passed the Wage Theft Prevention Act (“the Act”) which becomes effective April 9th, 2011. The Act imposes new regulations regarding the payment of wages and increases the penalties for wage payment violations.
New York law currently requires employers to inform new hires of their designated pay date, rate, and overtime rate (if applicable). The Act expands this regulation and requires employers to issue a notice with similar information upon hire and by February 1st of every year. This notice must include: dates of work covered, employer’s address and telephone number, the rate of pay and the manner in which it is paid (hourly, salary, commission), gross wages, net wages, deductions, and allowances against minimum wage. The notice for non-exempt employees also must include: the regular rate, overtime rate, and the number of regular and overtime hours worked. Additionally, employers must keep records for six years, which include written notices and accompanying written acknowledgements.
The Act also provides penalties for employers who violate the regulations permitting employees to recover damages through civil action. Employers can avoid these penalties by making complete and timely payment to employees. The Act affects virtually all New York employers. As a result, New York employers should review their payroll practices to ensure compliance with the Act.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law,is licensed to practice law in Ohio and New York. Stephen’s practice encompasses all areas of employment and labor law. For moreinformation about wage and hour laws or any other employment matter, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
Collective Bargaining Contracts in 2010 Had a Modest 1.6 Percent Average First-Year Wage Hike
By Ami J. Patel*
According to data from the Bureau of National Affairs, Inc. (“BNA”), first-year wages in collective bargaining agreements reviewed increased 1.6 percent. This is down from the prior year’s 2.3 percent increase and represents a national shift to smaller increases. BNA found decreases across the board in all sectors. For 2010, the median first-year wage increase was 1.7 percent as compared to 2009’s 2.5 percent, while the weighted average was 1.8 percent in 2010 and 2.7 percent in 2009.
In addition to smaller wage increases, retirement plans, insurance costs, and other employee benefits were major topics of negotiation during 2010. Employers must consider changes in these as well as other employee benefits when evaluating these figures. For example, factoring lump-sum payments into the wage calculations creates a 2010 first-year average wage increase of 1.9 percent, as compared with 2.6 percent in 2009. When excluding construction and state and local government agencies, the number jumps dramatically. Without these entities, the 2010 increase was 2.5 percent and the 2009 increase was 3.1 percent.
It is difficult to get a picture of collective bargaining by looking only at first-year wage increases, but the numbers are instructive and can be used during negotiations.
*Ami J. Patel practices in all areas of labor and employment law, with a focus on private and public sector labor law. For more information on BNA statistics or any other labor or employment issue, contact Ami at 216.696.4441 or ajp@zrlaw.com.
Z&R Shorts
Zashin & Rich Co., L.P.A. is pleased to announce the addition of Ami J. Patel to its Employment and Labor Group.
Ami’s practice focuses on private and public sector labor relations and employment issues.
Prior to joining Zashin & Rich Co., L.P.A., Ami worked as an Assistant Director of Law for the City of Cleveland. Ami's experience includes advising and defending management in FMLA, FLSA, ADA, ADEA, Title VII, and USERRA issues, wage and hour disputes, and disciplinary matters. She has experience analyzing civil service status and representing employers at arbitration hearings, the State Employment Relations Board, the Equal Employment Opportunity Commission and in state and federal courts.
Ami earned her B.A from Ohio University, magna cum laude. She then earned her law degree (J.D.) from Case Western Reserve University. Ami is admitted to practice law in the State of Ohio, the United States District Court for Northern Ohio, and the Sixth Circuit Court of Appeals. She is a member of the Cleveland Metropolitan Bar Association.
Please join us in welcoming Ami to Z&R!
Senate Bill 5 - FREE Seminar
Tuesday, April 12, 2011
10:00 am - Noon (lunch to follow)
Location:
Quicken Loans Arena
1 Center Court
Cleveland, Ohio 44115
Northeast Arcade Entrance
(Next to the Team Shop)
Description: Zashin & Rich Co., L.P.A. presents a free seminar regarding Senate Bill 5, including a comprehensive review of the new law, analysis of its effect on your collective bargaining issues, and strategies for using the new provisions to your best advantage, as well as the likely challenges posed by organized labor (referendum, lawsuits).
CLE credits are pending.
There is limited seating available for this free seminar. To make a reservation or receive more information, please contact Heather Hatfield at 216.696.4441.
Zashin & Rich Congratulates its
2011 SUPER LAWYERS
George S. Crisci
Jon M. Dileno
Andrew A. Zashin
Stephen S. Zashin
2011 RISING STARS
Patrick J. Hoban
Jason Rossiter
David R. Vance
Patrick M. Watts
Tuesday, June 3, 2008
EMPLOYMENT LAW QUARTERLY | Spring 2008, Volume X, Issue ii
Download PDF
The Seventh Circuit Court of Appeals recently upheld summary judgment in favor of an employer that terminated a married couple where each spouse failed to provide timely medical certification for their absences in accordance with the employer’s federal Family and Medical Leave Act (“FMLA”) policy. In Townsend-Taylor v. Ameritech Services, Inc., the employer terminated both Diedre Townsend-Taylor and her husband, Ronnie, due to excessive unexcused absences.
Though Ameritech conceded that it could not shirk its responsibilities under the FMLA by outsourcing the administration of its policy, Ameritech contracted with an entity – FMLA Processing Unit (“FPU”) – to administer its FMLA claims. Consistent with FPU’s policy, an Ameritech employee who requests FMLA leave is given a “Certification of Health Care Provider” form and is told that his doctor must submit the completed form to FPU within 15 days, the minimum time employers must afford employees under the FMLA, “unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts.” See 29 C.F.R. § 825.305(b). In practice, FPU gave employees 20 days before it considered the certification untimely.
In 2004, Ronnie Taylor missed several days of work to care for his child who had an infection. Upon his return on May 3, he requested FMLA leave and was given a Certification form. When FPU had not received a completed form on May 24, it issued a notice of denial of his FMLA leave request. The notice also provided that Ronnie would have an additional 15 days to submit proof of extenuating circumstances for his failure to timely file the Certification.
During the 15-day period for proof of extenuating circumstances, the child’s doctor sent FPU a letter indicating that he had either faxed directly to FPU or given to the child’s parents a completed Certification form on “at least 3 separate occasions.” FPU denied that it had received the Certification form. Ronnie suggested that he had used his wife’s form, crossing out her name and replacing it with his, when submitting the Certification to the child’s physician. In addition to the employee’s name, the preprinted form contained a barcode identifying the Ameritech employee. Ronnie speculated that, because he had used his wife’s form, the Certification was placed in her file and not his own. The Certification form was never found in Diedre’s FMLA file.
The Court was not persuaded. Finding the doctor and Ronnie’s speculation questionable (“it is hardly likely that he handed the same form to the parents three times”), the Court concluded that – by knowingly using the wrong form, his wife’s – Ronnie admittedly did not comply with FPU’s Certification requirement. The Court further rejected Ronnie’s argument that Ameritech should have allowed him to resubmit the physician’s Certification following the May 24 notice, holding that by allowing Ronnie to provide “the Certification within a new, extended deadline – a scenario that could, in theory, repeat itself ad infinitum … a ‘deadline’ (under the Regulations) would have no meaningful significance and no actual consequence.”
The Court similarly dismissed Ronnie’s claims that the FMLA policy – which required completion of the Certification by the medical provider – interfered with his FMLA rights. The Court reasoned that an employee could forge and/or embellish a doctor’s letter. By requiring the provider to complete the form, the employer permissibly adopted, “reasonable, non-burdensome measures for preventing fraud. Reasonable measures are not interferences with rights.” The Court concluded that if Ronnie was unsure as to whether his child’s doctor had submitted the form, he was within his rights prior to the expiration of the 20-day deadline to check with FPU to make sure that the completed form arrived. “If it has not arrived, he can obtain an extension of time sufficient to enable him to assure FPU’s receipt of the form. If his doctor does not cooperate – suppose he’s on vacation and as a result unable to submit the medical certification in time – that would be an extenuating circumstance that could excuse missing the deadline.”
Like her husband, Diedre similarly failed to adhere to FPU’s policy relative to the FMLA medical certification requirement. Mrs. Taylor missed several days of work due to an undisclosed back problem. Upon her return to Ameritech, she requested FMLA leave and received a Certification form. “She waited 12 days after receiving the form to give it to her doctor, who did not get the completed form to FPU for another nine days, with the result that Mrs. Taylor missed the deadline” by a single day. In the notice denying her FMLA leave, FPU provided Diedre 15 days to establish extenuating circumstances for the failure to timely file the Certification form. During that period, Diedre’s physician explained that her delay in returning the form resulted from the fact that she only worked two days per week.
For her part, Diedre testified that the day she presented the form to her doctor - 12 days after receiving it – was her first day off since returning to work. She also testified that her work hours were the same as the clinic where she was treated, from about 8:00 a.m. to 4:30 p.m. She later admitted, however, that the clinic would open as early as 7:00 a.m. and that she could have easily dropped the form off on her way to work. The Court dismissed Diedre’s excuses and held that, even if her work hours mimicked the clinic’s hours and her doctor was only available two days per week, she could have called the clinic and made arrangements to get the form to her doctor.
The Court further held that Ameritech’s response to Diedre missing the deadline by one day was “harsh” but that “hers was a case of the last straw. She had a history of failed attempts to justify absences as being authorized by the FMLA. Both Taylors were problem employees, and Ameritech was not required to exhibit more patience than the law and its own rules required.” The Court further concluded that “it is most unlikely that the back condition that precipitated her application for FMLA leave was a ‘serious health condition,’” as there was no evidence she suffered from a chronic serious health condition and “it appears that she missed only three days of work.”
As demonstrated by the holding of the Seventh Circuit, an employer may enforce reasonable time limits on an employee’s submission of FMLA medical certification. Absent timely submission of the certification – assuming no evidence of extenuating circumstances – an employer may treat the absence as an unapproved absence and impose discipline up to and including termination.
*Stephen Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in defending employers in FMLA litigation, as well as counseling employers on FMLA compliance. For more information about medical certifications or other questions about the Family and Medical Leave Act, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
Advanced communication technology is becoming increasingly commonplace among all types of industries and employers. From virtual private networking (“VPN”) applications that allow employees a secure “log in” to their company’s server from a remote location using an internet connection, to company email becoming accessible anywhere, anytime with the use of a web-based interface, employees have more options available to them today to work from anywhere around the globe. Employers make work communications even easier when they provide their employees with a personal digital assistant, or PDA, such as a Treo, BlackBerry, or iPhone.
Oftentimes, employees with these devices and access to company technology “after hours” are exempt from federal Fair Labor Standards Act (“FLSA”) and state regulations relative to overtime and the minimum wage. These include those employees that satisfy Department of Labor (“DOL”) criteria for “exempt” employees and pass three “tests” depending on (a) how much they are paid, (b) how they are paid, and (c) what kind of work they do. Exempt employees must be paid on a salary basis, must make at least $455 a week, and must perform exempt job duties such as executive, professional, and administrative functions. Determining whether an employee is exempt requires a case-by-case analysis of the employee’s job duties consistent with DOL guidance. While some job classifications (attorneys and other professionals, for example) are almost always exempt, others are not as clear (inside sales people are usually not exempt, while outside sales people are; similarly, while registered nurses are exempt, licensed practical nurses are not). When job duties overlap (a licensed engineer performing inside sales work, for example), an employer must analyze the employee’s position to determine whether or not the FLSA and state overtime and minimum wage requirements apply.
These considerations come into play when dealing with the case of a nonexempt employee that has access to company e-mail from home and/or is issued a PDA. A common example is the nonexempt clerical worker who checks and sends email from home either before or after work. When workers are given PDAs – with unfettered access to company communications at all hours – the situation can become even more problematic. The FLSA requires employers to compensate nonexempt employees for any time spent on work-related tasks, even if those tasks involve checking and responding to e-mail from the comfort of a living room couch. Prudent employers should articulate clear policies to ensure that they comply with overtime and minimum wage requirements.
To avoid paying overtime, employers should have a policy in place that nonexempt employees may not check e-mail or return phone calls outside of normal business hours unless they have advanced authorization. Absent approval, employees should not work these hours. When a nonexempt employee violates this policy, the employer should reprimand the employee consistent with company policy. The employer must, however, pay the employee in accordance with the FLSA for the overtime that the employee worked.
Conversely, if an employer wants nonexempt employees to respond to phone calls or emails outside of regular working hours, the employer should have a system in place that requires employees to properly track their time. Such a system should facilitate paying employees for all hours worked. Either way, employers should implement a clear policy and make sure that it universally enforces that policy. The worst thing for an employer to do is to recognize that nonexempt employees are checking e-mail and returning phone calls outside of regular working hours and ignore it.
Additionally, employers should think carefully about which company employees are given outside access to the company server and email via a PDA. To limit liability, employers should only make the devices available to those employees who actually need them. The great majority of employees who utilize this technology are exempt; however, as these practices become more common and nonexempt employees are “wired” through a PDA or home computer, employers should be wary of potential wage and hour violations.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of employment litigation and wage and hour compliance and administration. For more information concerning compliance with any aspect of the FLSA, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
The great majority of employment discrimination lawsuits and administrative charges result following the termination of an employee’s employment. When an employee loses his/her job, the ex-employee has an increased economic incentive to consult with a plaintiff’s attorney and/or pursue litigation or administrative relief and loses the disincentive to litigation inherent in an ongoing employer-employee relationship. Moreover, the employee’s hurt feelings resulting from a sudden job loss can contribute to feelings of vengeful retaliation against the employer – justified or not – causing the employee to seek retribution in a legal forum.
The best defense against an employment discrimination and/or wrongful discharge lawsuit is developed prior to or at the time of termination, not after the lawsuit is filed. To that end, prudent employers should take steps to both avoid litigation and carefully execute the termination so as to increase their chances of defeating a discharged employee’s claims.
NO SURPRISES. Throughout an employee’s employment, employers should conduct regular performance evaluations and implement an objective system of discipline that includes documented reports of performance deficiencies. In addition, employers should clearly communicate their employment policies to employees, including any employee handbook, harassment policy, and the employee’s job description. Documents evidencing an employee’s employment history are vital to support an employer’s non-discriminatory motive for terminating an employee’s employment.
Immediately before terminating an employee, employers should consider suspending the employee to investigate any specific incidents that give rise to the termination. Employers have broad authority to conduct internal investigations. Employers should take advantage of this right, talk to as many supervisors, co-workers, and subordinates as necessary to learn all of the relevant facts.
Most importantly, employers should allow the subject employee an opportunity to respond prior to the official termination. The employee may admit some, most, or all of the accusations, and provide useful admissions that may benefit the employer in future litigation. Even if the employee admits nothing, the employer can limit the employee to one set of facts. It is better for employers to hear the employee’s side of story before a possible deposition, months if not years following the termination.
TELL THE TRUTH. The best advice an employer can follow when terminating an employee is to give an honest reason for the employee’s termination. This is not moral guidance, but sound legal counsel. As the saying goes, no good deed goes unpunished. Rather than identifying an employee’s performance deficiencies as the catalyst for his termination, an employer might choose to “soften the blow” and tell the employee that he is being let go due to a reduction in force, or an economic lay off. This is a common mistake. The worst thing that an employer can do when terminating an employee is to give a dishonest reason for the termination that later will be cited as “pretext” for discrimination, retaliation, and/or wrongful discharge.
The communicated reason for the termination should also mirror the employee’s documented performance deficiencies. Having a good reason for termination is not enough – the employer’s statements and documentation must square with that good reason, and contrary statements or documentation will work against it.
BE PROFESSIONAL AND BE PREPARED. While an employer should speak truthfully when discharging an employee, employers should not use the opportunity to be gratuitously cruel or mean-spirited. “Rubbing it in” does no good for the employer and can create hard feelings on the part of the employee that can later result in an administrative charge or employment litigation. The difference between having a lawsuit and not having one may result from how the employer communicated the discharge.
Prior to a termination meeting, employers should keep news of an employee’s impending discharge private and not allow the decision to “leak” out among the workforce. News of a termination should come from the employee’s direct manager or supervisor at the end of the work day, in a private meeting with a witness (an HR employee or other manager), with minimal disruption to other employees.
At the termination meeting, employers should be firm and professional, but compassionate and respectful. Employers should summarize reasons for the termination and use specific examples. While employers should welcome questions and explain their rationale, they should avoid debating the decision with the employee.
TIE UP LOOSE ENDS. First, employers must make sure that the employee receives all owed compensation. Wage and hour litigation has increased rapidly and substantively favors the employee. Employees can often collect double or triple damages, costs of litigation, attorneys’ fees, and civil and criminal fines.
Second, employers should review and comply with any agreements they have with the employee. While most employees are “at will,” some employees have an employment contract or other agreement such as a non-competition/non-solicitation agreement. When planning for a termination, employers should review their obligations pursuant to these contracts and ensure that their actions comply with such agreements. Employers should also inform discharged employees of any ongoing obligations following the termination, such as a continued duty to protect the employers’ trade secrets.
Finally, depending on the circumstances, employers should consider offering severance pay in exchange for a release of claims from the employee. In some situations, offering a few weeks’ salary for the employee to waive any right to future litigation might save the employer thousands of dollars in litigation costs. Employers should ensure that their release documents are up to date and include any possible claims the employee might have.
In the end, it is impossible to predict the future with respect to litigation arising from an employee’s termination. Employers should plan and execute terminations carefully, however, to minimize their risk and exposure to litigation, and to maximize their chances of winning potential claims and lawsuits.
A recent study by the Families and Work Institute (“FWI”) found that many employers fail to comply with the federal Family and Medical Leave Act (“FMLA”). Interestingly, the difference between large employers (18%) – those with more than 1,000 employees – and small employers (21%) that failed to comply with the FMLA was statistically insignificant.
The FMLA requires covered employers, those with 50 or more employees within a 75-mile radius, to provide at least 12 weeks unpaid leave and job restoration benefits to covered employees in certain circumstances such as the employee and/or family member’s serious health condition, the birth of a child, or adoption and/or foster-care placement. In addition, the FMLA was recently expanded to include “qualifying exigencies,” as that term is to be defined by the Department of Labor, related to military service.
The 2008 National Study of Employers conducted by the FWI found that 24% of covered employers did not offer at least 12 weeks of paternity leave; 15% did not offer at least 12 weeks of maternity leave; 19% did not offer adoption and/or foster-care leave; and 16% did not offer FMLA benefits to their employees for the care of an employee’s spouse or children with serious health conditions.
Employers – especially growing employers who, as they add employees, become covered employers under the FMLA – should regularly update their leave policies and train their human resource personnel to ensure that they are complying with the FMLA. Moreover, employers with covered employees in different states must be aware of and comply with various state laws that may require both paid and unpaid leave. Finally, all covered employers should have their current FMLA policies updated to comply with the recently passed National Defense Authorization Act.
Upcoming Speaking Engagements
June 19, 2008
Steve Dlott will present “Defending Workers’ Compensation Claims” to the Lake/Geauga Chapter of the Society for Human Resource Management (“SHRM”) as part of the “Effective HR – It’s All About People!” workshop on June 19, 2008 at the Radisson Hotel/Eastlake. For more information or to register, call (440) 392-2168 or email: info@lgashrm.org.
June 23, 2008
George Crisci will speak at the 8th Annual Northern Ohio Labor & Employment Law Conference at the Cleveland Metropolitan Bar Association on June 23, 2008. George will present “Public Collective Bargaining Developments” to the conference.
October 16 and 17, 2008
George Crisci and Stephen Zashin will speak at the 45th Annual Midwest Labor and Employment Law Seminar presented by the Ohio State Bar Association October 16 and 17, 2008 in Columbus. George will present “Public Collective Bargaining Developments” to the conference and Stephen will present an update on FMLA and other leave law.
Stephen Zashin admitted to the New York Bar Stephen Zashin was admitted to the New York State Bar and to the bar of the federal district court for the Southern District of New York.
- TIMELINESS: Seventh Circuit Upholds 15-Day FMLA Medical Certification Requirement
- “It’s For Work!!” – Can a PDA Lead to Unintended Overtime Consequences?
- LET YOU GO: How to Avoid Litigation When Terminating an Employee
- SURVEY SAYS – Some Employers Not Complying With The FMLA
- Z&R Shorts
TIMELINESS: Seventh Circuit Upholds 15-Day FMLA Medical Certification Requirement
By Stephen S. Zashin*The Seventh Circuit Court of Appeals recently upheld summary judgment in favor of an employer that terminated a married couple where each spouse failed to provide timely medical certification for their absences in accordance with the employer’s federal Family and Medical Leave Act (“FMLA”) policy. In Townsend-Taylor v. Ameritech Services, Inc., the employer terminated both Diedre Townsend-Taylor and her husband, Ronnie, due to excessive unexcused absences.
Though Ameritech conceded that it could not shirk its responsibilities under the FMLA by outsourcing the administration of its policy, Ameritech contracted with an entity – FMLA Processing Unit (“FPU”) – to administer its FMLA claims. Consistent with FPU’s policy, an Ameritech employee who requests FMLA leave is given a “Certification of Health Care Provider” form and is told that his doctor must submit the completed form to FPU within 15 days, the minimum time employers must afford employees under the FMLA, “unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts.” See 29 C.F.R. § 825.305(b). In practice, FPU gave employees 20 days before it considered the certification untimely.
In 2004, Ronnie Taylor missed several days of work to care for his child who had an infection. Upon his return on May 3, he requested FMLA leave and was given a Certification form. When FPU had not received a completed form on May 24, it issued a notice of denial of his FMLA leave request. The notice also provided that Ronnie would have an additional 15 days to submit proof of extenuating circumstances for his failure to timely file the Certification.
During the 15-day period for proof of extenuating circumstances, the child’s doctor sent FPU a letter indicating that he had either faxed directly to FPU or given to the child’s parents a completed Certification form on “at least 3 separate occasions.” FPU denied that it had received the Certification form. Ronnie suggested that he had used his wife’s form, crossing out her name and replacing it with his, when submitting the Certification to the child’s physician. In addition to the employee’s name, the preprinted form contained a barcode identifying the Ameritech employee. Ronnie speculated that, because he had used his wife’s form, the Certification was placed in her file and not his own. The Certification form was never found in Diedre’s FMLA file.
The Court was not persuaded. Finding the doctor and Ronnie’s speculation questionable (“it is hardly likely that he handed the same form to the parents three times”), the Court concluded that – by knowingly using the wrong form, his wife’s – Ronnie admittedly did not comply with FPU’s Certification requirement. The Court further rejected Ronnie’s argument that Ameritech should have allowed him to resubmit the physician’s Certification following the May 24 notice, holding that by allowing Ronnie to provide “the Certification within a new, extended deadline – a scenario that could, in theory, repeat itself ad infinitum … a ‘deadline’ (under the Regulations) would have no meaningful significance and no actual consequence.”
The Court similarly dismissed Ronnie’s claims that the FMLA policy – which required completion of the Certification by the medical provider – interfered with his FMLA rights. The Court reasoned that an employee could forge and/or embellish a doctor’s letter. By requiring the provider to complete the form, the employer permissibly adopted, “reasonable, non-burdensome measures for preventing fraud. Reasonable measures are not interferences with rights.” The Court concluded that if Ronnie was unsure as to whether his child’s doctor had submitted the form, he was within his rights prior to the expiration of the 20-day deadline to check with FPU to make sure that the completed form arrived. “If it has not arrived, he can obtain an extension of time sufficient to enable him to assure FPU’s receipt of the form. If his doctor does not cooperate – suppose he’s on vacation and as a result unable to submit the medical certification in time – that would be an extenuating circumstance that could excuse missing the deadline.”
Like her husband, Diedre similarly failed to adhere to FPU’s policy relative to the FMLA medical certification requirement. Mrs. Taylor missed several days of work due to an undisclosed back problem. Upon her return to Ameritech, she requested FMLA leave and received a Certification form. “She waited 12 days after receiving the form to give it to her doctor, who did not get the completed form to FPU for another nine days, with the result that Mrs. Taylor missed the deadline” by a single day. In the notice denying her FMLA leave, FPU provided Diedre 15 days to establish extenuating circumstances for the failure to timely file the Certification form. During that period, Diedre’s physician explained that her delay in returning the form resulted from the fact that she only worked two days per week.
For her part, Diedre testified that the day she presented the form to her doctor - 12 days after receiving it – was her first day off since returning to work. She also testified that her work hours were the same as the clinic where she was treated, from about 8:00 a.m. to 4:30 p.m. She later admitted, however, that the clinic would open as early as 7:00 a.m. and that she could have easily dropped the form off on her way to work. The Court dismissed Diedre’s excuses and held that, even if her work hours mimicked the clinic’s hours and her doctor was only available two days per week, she could have called the clinic and made arrangements to get the form to her doctor.
The Court further held that Ameritech’s response to Diedre missing the deadline by one day was “harsh” but that “hers was a case of the last straw. She had a history of failed attempts to justify absences as being authorized by the FMLA. Both Taylors were problem employees, and Ameritech was not required to exhibit more patience than the law and its own rules required.” The Court further concluded that “it is most unlikely that the back condition that precipitated her application for FMLA leave was a ‘serious health condition,’” as there was no evidence she suffered from a chronic serious health condition and “it appears that she missed only three days of work.”
As demonstrated by the holding of the Seventh Circuit, an employer may enforce reasonable time limits on an employee’s submission of FMLA medical certification. Absent timely submission of the certification – assuming no evidence of extenuating circumstances – an employer may treat the absence as an unapproved absence and impose discipline up to and including termination.
*Stephen Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in defending employers in FMLA litigation, as well as counseling employers on FMLA compliance. For more information about medical certifications or other questions about the Family and Medical Leave Act, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
“It’s For Work!!” – Can a PDA Lead to Unintended Overtime Consequences?
By Michele L. Jakubs*Advanced communication technology is becoming increasingly commonplace among all types of industries and employers. From virtual private networking (“VPN”) applications that allow employees a secure “log in” to their company’s server from a remote location using an internet connection, to company email becoming accessible anywhere, anytime with the use of a web-based interface, employees have more options available to them today to work from anywhere around the globe. Employers make work communications even easier when they provide their employees with a personal digital assistant, or PDA, such as a Treo, BlackBerry, or iPhone.
Oftentimes, employees with these devices and access to company technology “after hours” are exempt from federal Fair Labor Standards Act (“FLSA”) and state regulations relative to overtime and the minimum wage. These include those employees that satisfy Department of Labor (“DOL”) criteria for “exempt” employees and pass three “tests” depending on (a) how much they are paid, (b) how they are paid, and (c) what kind of work they do. Exempt employees must be paid on a salary basis, must make at least $455 a week, and must perform exempt job duties such as executive, professional, and administrative functions. Determining whether an employee is exempt requires a case-by-case analysis of the employee’s job duties consistent with DOL guidance. While some job classifications (attorneys and other professionals, for example) are almost always exempt, others are not as clear (inside sales people are usually not exempt, while outside sales people are; similarly, while registered nurses are exempt, licensed practical nurses are not). When job duties overlap (a licensed engineer performing inside sales work, for example), an employer must analyze the employee’s position to determine whether or not the FLSA and state overtime and minimum wage requirements apply.
These considerations come into play when dealing with the case of a nonexempt employee that has access to company e-mail from home and/or is issued a PDA. A common example is the nonexempt clerical worker who checks and sends email from home either before or after work. When workers are given PDAs – with unfettered access to company communications at all hours – the situation can become even more problematic. The FLSA requires employers to compensate nonexempt employees for any time spent on work-related tasks, even if those tasks involve checking and responding to e-mail from the comfort of a living room couch. Prudent employers should articulate clear policies to ensure that they comply with overtime and minimum wage requirements.
To avoid paying overtime, employers should have a policy in place that nonexempt employees may not check e-mail or return phone calls outside of normal business hours unless they have advanced authorization. Absent approval, employees should not work these hours. When a nonexempt employee violates this policy, the employer should reprimand the employee consistent with company policy. The employer must, however, pay the employee in accordance with the FLSA for the overtime that the employee worked.
Conversely, if an employer wants nonexempt employees to respond to phone calls or emails outside of regular working hours, the employer should have a system in place that requires employees to properly track their time. Such a system should facilitate paying employees for all hours worked. Either way, employers should implement a clear policy and make sure that it universally enforces that policy. The worst thing for an employer to do is to recognize that nonexempt employees are checking e-mail and returning phone calls outside of regular working hours and ignore it.
Additionally, employers should think carefully about which company employees are given outside access to the company server and email via a PDA. To limit liability, employers should only make the devices available to those employees who actually need them. The great majority of employees who utilize this technology are exempt; however, as these practices become more common and nonexempt employees are “wired” through a PDA or home computer, employers should be wary of potential wage and hour violations.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of employment litigation and wage and hour compliance and administration. For more information concerning compliance with any aspect of the FLSA, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
LET YOU GO: How to Avoid Litigation When Terminating an Employee
By Patrick O. PetersThe great majority of employment discrimination lawsuits and administrative charges result following the termination of an employee’s employment. When an employee loses his/her job, the ex-employee has an increased economic incentive to consult with a plaintiff’s attorney and/or pursue litigation or administrative relief and loses the disincentive to litigation inherent in an ongoing employer-employee relationship. Moreover, the employee’s hurt feelings resulting from a sudden job loss can contribute to feelings of vengeful retaliation against the employer – justified or not – causing the employee to seek retribution in a legal forum.
The best defense against an employment discrimination and/or wrongful discharge lawsuit is developed prior to or at the time of termination, not after the lawsuit is filed. To that end, prudent employers should take steps to both avoid litigation and carefully execute the termination so as to increase their chances of defeating a discharged employee’s claims.
NO SURPRISES. Throughout an employee’s employment, employers should conduct regular performance evaluations and implement an objective system of discipline that includes documented reports of performance deficiencies. In addition, employers should clearly communicate their employment policies to employees, including any employee handbook, harassment policy, and the employee’s job description. Documents evidencing an employee’s employment history are vital to support an employer’s non-discriminatory motive for terminating an employee’s employment.
Immediately before terminating an employee, employers should consider suspending the employee to investigate any specific incidents that give rise to the termination. Employers have broad authority to conduct internal investigations. Employers should take advantage of this right, talk to as many supervisors, co-workers, and subordinates as necessary to learn all of the relevant facts.
Most importantly, employers should allow the subject employee an opportunity to respond prior to the official termination. The employee may admit some, most, or all of the accusations, and provide useful admissions that may benefit the employer in future litigation. Even if the employee admits nothing, the employer can limit the employee to one set of facts. It is better for employers to hear the employee’s side of story before a possible deposition, months if not years following the termination.
TELL THE TRUTH. The best advice an employer can follow when terminating an employee is to give an honest reason for the employee’s termination. This is not moral guidance, but sound legal counsel. As the saying goes, no good deed goes unpunished. Rather than identifying an employee’s performance deficiencies as the catalyst for his termination, an employer might choose to “soften the blow” and tell the employee that he is being let go due to a reduction in force, or an economic lay off. This is a common mistake. The worst thing that an employer can do when terminating an employee is to give a dishonest reason for the termination that later will be cited as “pretext” for discrimination, retaliation, and/or wrongful discharge.
The communicated reason for the termination should also mirror the employee’s documented performance deficiencies. Having a good reason for termination is not enough – the employer’s statements and documentation must square with that good reason, and contrary statements or documentation will work against it.
BE PROFESSIONAL AND BE PREPARED. While an employer should speak truthfully when discharging an employee, employers should not use the opportunity to be gratuitously cruel or mean-spirited. “Rubbing it in” does no good for the employer and can create hard feelings on the part of the employee that can later result in an administrative charge or employment litigation. The difference between having a lawsuit and not having one may result from how the employer communicated the discharge.
Prior to a termination meeting, employers should keep news of an employee’s impending discharge private and not allow the decision to “leak” out among the workforce. News of a termination should come from the employee’s direct manager or supervisor at the end of the work day, in a private meeting with a witness (an HR employee or other manager), with minimal disruption to other employees.
At the termination meeting, employers should be firm and professional, but compassionate and respectful. Employers should summarize reasons for the termination and use specific examples. While employers should welcome questions and explain their rationale, they should avoid debating the decision with the employee.
TIE UP LOOSE ENDS. First, employers must make sure that the employee receives all owed compensation. Wage and hour litigation has increased rapidly and substantively favors the employee. Employees can often collect double or triple damages, costs of litigation, attorneys’ fees, and civil and criminal fines.
Second, employers should review and comply with any agreements they have with the employee. While most employees are “at will,” some employees have an employment contract or other agreement such as a non-competition/non-solicitation agreement. When planning for a termination, employers should review their obligations pursuant to these contracts and ensure that their actions comply with such agreements. Employers should also inform discharged employees of any ongoing obligations following the termination, such as a continued duty to protect the employers’ trade secrets.
Finally, depending on the circumstances, employers should consider offering severance pay in exchange for a release of claims from the employee. In some situations, offering a few weeks’ salary for the employee to waive any right to future litigation might save the employer thousands of dollars in litigation costs. Employers should ensure that their release documents are up to date and include any possible claims the employee might have.
In the end, it is impossible to predict the future with respect to litigation arising from an employee’s termination. Employers should plan and execute terminations carefully, however, to minimize their risk and exposure to litigation, and to maximize their chances of winning potential claims and lawsuits.
SURVEY SAYS – Some Employers Not Complying With The FMLA
By Patrick M. WattsA recent study by the Families and Work Institute (“FWI”) found that many employers fail to comply with the federal Family and Medical Leave Act (“FMLA”). Interestingly, the difference between large employers (18%) – those with more than 1,000 employees – and small employers (21%) that failed to comply with the FMLA was statistically insignificant.
The FMLA requires covered employers, those with 50 or more employees within a 75-mile radius, to provide at least 12 weeks unpaid leave and job restoration benefits to covered employees in certain circumstances such as the employee and/or family member’s serious health condition, the birth of a child, or adoption and/or foster-care placement. In addition, the FMLA was recently expanded to include “qualifying exigencies,” as that term is to be defined by the Department of Labor, related to military service.
The 2008 National Study of Employers conducted by the FWI found that 24% of covered employers did not offer at least 12 weeks of paternity leave; 15% did not offer at least 12 weeks of maternity leave; 19% did not offer adoption and/or foster-care leave; and 16% did not offer FMLA benefits to their employees for the care of an employee’s spouse or children with serious health conditions.
Employers – especially growing employers who, as they add employees, become covered employers under the FMLA – should regularly update their leave policies and train their human resource personnel to ensure that they are complying with the FMLA. Moreover, employers with covered employees in different states must be aware of and comply with various state laws that may require both paid and unpaid leave. Finally, all covered employers should have their current FMLA policies updated to comply with the recently passed National Defense Authorization Act.
Z&R Shorts
Upcoming Speaking Engagements
June 19, 2008
Steve Dlott will present “Defending Workers’ Compensation Claims” to the Lake/Geauga Chapter of the Society for Human Resource Management (“SHRM”) as part of the “Effective HR – It’s All About People!” workshop on June 19, 2008 at the Radisson Hotel/Eastlake. For more information or to register, call (440) 392-2168 or email: info@lgashrm.org.
June 23, 2008
George Crisci will speak at the 8th Annual Northern Ohio Labor & Employment Law Conference at the Cleveland Metropolitan Bar Association on June 23, 2008. George will present “Public Collective Bargaining Developments” to the conference.
October 16 and 17, 2008
George Crisci and Stephen Zashin will speak at the 45th Annual Midwest Labor and Employment Law Seminar presented by the Ohio State Bar Association October 16 and 17, 2008 in Columbus. George will present “Public Collective Bargaining Developments” to the conference and Stephen will present an update on FMLA and other leave law.
Stephen Zashin admitted to the New York Bar Stephen Zashin was admitted to the New York State Bar and to the bar of the federal district court for the Southern District of New York.
Friday, December 21, 2007
Supreme Court Strictly Limits Public Policy Wrongful Discharge Claims
*By Stephen S. Zashin
In a 5-2 decision issued yesterday, the Ohio Supreme Court held that an at-will employee who is terminated from employment while receiving workers’ compensation benefits may not pursue a common law tort action against the employee’s employer for wrongful discharge based on public policy. In Bickers v. W. & S. Life Ins. Co., 2007-Ohio-6751, the Court held that recovery pursuant to the anti-retaliation provision of Ohio’s workers’ compensation statute, R.C. 4123.90, is the exclusive remedy for plaintiffs who allege wrongful termination while receiving workers’ compensation benefits.
The decision distinguishes the court’s previous ruling in Coolidge v. Riversdale Local School Dist., 100 Ohio St. 3d 141, 2003-Ohio-5357. In Coolidge, the Court held that a teacher who was terminated while receiving workers’ compensation benefits could sue her employer based on a violation of public policy. As a public school teacher, Coolidge was not an at-will employee and could be terminated only with “good and just cause” pursuant to R.C. 3319.16.
The Bickers decision limits the application of Coolidge to public policy claims brought by public school teachers, and others similarly situated. As noted by the Court, “the Coolidge court decided a very limited issue. Specifically, the Coolidge court held that judicial inquiry is warranted into whether an employer acted contrary to public policy when it discharged an employee when R.C. 3319.16 is implicated. *** Coolidge does not create a cause of action for an at-will employee who is terminated for nonretaliatory reasons while receiving workers’ compensation.”
Plaintiffs, seeking to evade the limitations period and more limited remedies contained in the workers’ compensation statute, have relied on Coolidge to allege a common law claim of wrongful discharge against employers who terminate employees while they receive workers’ compensation benefits. The Bickers decision eliminates this cause of action with respect to at-will employees and allows only claims brought by public school teachers and presumably others with statutory employment protection.
While Bickers is a favorable decision for Ohio employers, employers are cautioned to continue to comply with the nonretaliation provision contained in Ohio’s workers compensation statute.
*Stephen S. Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in all aspects of workplace law, including wrongful discharge litigation. For more information about defending allegations of public policy discrimination, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
In a 5-2 decision issued yesterday, the Ohio Supreme Court held that an at-will employee who is terminated from employment while receiving workers’ compensation benefits may not pursue a common law tort action against the employee’s employer for wrongful discharge based on public policy. In Bickers v. W. & S. Life Ins. Co., 2007-Ohio-6751, the Court held that recovery pursuant to the anti-retaliation provision of Ohio’s workers’ compensation statute, R.C. 4123.90, is the exclusive remedy for plaintiffs who allege wrongful termination while receiving workers’ compensation benefits.
The decision distinguishes the court’s previous ruling in Coolidge v. Riversdale Local School Dist., 100 Ohio St. 3d 141, 2003-Ohio-5357. In Coolidge, the Court held that a teacher who was terminated while receiving workers’ compensation benefits could sue her employer based on a violation of public policy. As a public school teacher, Coolidge was not an at-will employee and could be terminated only with “good and just cause” pursuant to R.C. 3319.16.
The Bickers decision limits the application of Coolidge to public policy claims brought by public school teachers, and others similarly situated. As noted by the Court, “the Coolidge court decided a very limited issue. Specifically, the Coolidge court held that judicial inquiry is warranted into whether an employer acted contrary to public policy when it discharged an employee when R.C. 3319.16 is implicated. *** Coolidge does not create a cause of action for an at-will employee who is terminated for nonretaliatory reasons while receiving workers’ compensation.”
Plaintiffs, seeking to evade the limitations period and more limited remedies contained in the workers’ compensation statute, have relied on Coolidge to allege a common law claim of wrongful discharge against employers who terminate employees while they receive workers’ compensation benefits. The Bickers decision eliminates this cause of action with respect to at-will employees and allows only claims brought by public school teachers and presumably others with statutory employment protection.
While Bickers is a favorable decision for Ohio employers, employers are cautioned to continue to comply with the nonretaliation provision contained in Ohio’s workers compensation statute.
*Stephen S. Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in all aspects of workplace law, including wrongful discharge litigation. For more information about defending allegations of public policy discrimination, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
Wednesday, July 12, 2006
EMPLOYMENT LAW QUARTERLY | Summer 2006, Volume VIII, Issue iii
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Summertime ranks a close second to the holiday season as the most popular time for employer-sponsored social events. Many of us fondly (or not so fondly) recall attending company picnics as kids. These days, events such as company-sponsored amusement park days are more common than company picnics. Regardless of the activity, every employer hosting a summer social event for its employees should be aware of its potential liability for employee injuries occurring during such an event.
Some employers mistakenly assume that an employee's voluntary participation in a company-sponsored recreational event eliminates any employer liability. While some states have adopted that concept, Ohio has not. The event also need not occur on the employer's premises to impose employer liability for an employee's injury.
The seminal case in Ohio, Kohlmayer v. Keller, involved an employee who injured himself during a company picnic and sued to participate in the workers' compensation fund. In finding the employer liable for the injury, the Ohio Supreme Court articulated the factors that indicated that the employee's attendance at the picnic was "logically related to his employment":
Courts will also consider the amount of employer supervision. The amusement-park-day example likely favors employers because employers rarely have any control or supervisory authority over the amusement park's site. However, the analysis might change if the company rented out an entire park or the particular site where an injury occurred (e.g., a picnic area). Finally, an analysis of whether the event produced "improved employee relationships" will almost always result in employer liability. An employer's very purpose in sponsoring such events is often to improve employee relations.
Perhaps the best advice for an employer planning a summertime social event for employees is – less is more. The less company involvement, the greater the likelihood that a court will not hold an employer liable for an employee injury sustained during a company-sponsored activity.
How does an employer accommodate a pregnant employee when the employee's condition affects her ability to work? In Reeves v. Swift Transportation, the Sixth Circuit Court of Appeals recently confirmed that employers must treat pregnant employees the same as all other employees--no better, no worse.
The employee in this case worked as a truck driver beginning in August 2002. When she applied for the job, the company informed her that the job required bending, twisting, climbing, squatting, crouching, and balancing. The company also informed her that the job sometimes required strenuous physical activity, including pushing or pulling up to 200 pounds of freight with a dolly, pushing up to 100 pounds without mechanical aid, and lifting sixty pounds over her head. During the application process, the employee represented that she could bear the level of physical strain that the job required.
In November 2002, the employee learned that she was pregnant. She saw her doctor, who restricted her to light work pending her first appointment with an obstetrician. When the employee returned to work with her doctor's note, the employer told her it had no light work for her to do and sent her home.
The employer had a policy of providing light-duty work--but only to employees who had been injured on the job. Injured employees received light-duty assignments like office work.
The employee visited her obstetrician, who told the employee that she could continue working if she performed light work only and did not lift more than twenty pounds. The obstetrician gave the employee a letter setting forth these restrictions.
The employee told her employer that she could not perform regular truck driver duties but continued to request special light duty work assignments. The employer continued to inform her that it had no light duty work for her. The employee continued to contact her employer every day to request light duty work, which the employer continued to inform her it did not have for her. The employee was also not entitled to leave under the Family and Medical Leave Act because she had worked for the company for less than one year. The employer terminated the employee in late November 2002.
The employee filed suit in federal court, alleging violations of the Pregnancy Discrimination Act ("PDA"). The PDA provides, in part:
The court then performed an indirect evidence analysis. The court found that the employee met her initial burden of establishing a prima facie case. The employer met its burden of establishing a nondiscriminatory reason for terminating the employee, i.e., she could not perform the heavy lifting required of truck drivers.
The employee could not establish that the employer's reason was pretext for discrimination. As a result, her claim failed. The court also noted that the employee failed to produce evidence tending to prove a discriminatory motive, nor did she even allege that the employer acted with discriminatory intent. Finally, the court accepted the reasoning of other courts that the PDA requires only equal treatment.
The employer had two things going for it: a clear policy and supervisors who understood its application. Employers should have policies that are "pregnancy-blind." In addition, employers should ensure that their supervisors apply their policies uniformly. Finally, keep in mind that any analysis of a situation like this should include an understanding of other state and federal law implications. When in doubt, consult your legal counsel.
*Michele Jakubs practices in all areas of employment litigation. For more information about light-duty work policies or pregnancy discrimination, please contact Michele at (216) 696-4441 or mlj@zrlaw.com.
Employee email and internet monitoring are really nothing new. Most employers have had such policies and practices in place for years. An employer's right to monitor the use of its own equipment and communication systems is pretty solid if employees are on notice. So why does a New Jersey state case involving internet monitoring have everyone so excited? Instead of a case about employee privacy, the court was confronted with questions about an employer's duty and liability to third parties when it turns a blind eye to harmful computer use.
The case. In Doe v. XYC Corporation, an accountant used his work computer to not only access pornographic websites but also to store and transmit child pornography. Several individuals at his company knew of the employee's activities but failed to take further action. The court's decision describes at least six incidents of managers learning of the employee's activities but doing virtually nothing. Starting in 1998 or 1999, the employer's Internet Services Manager and Senior Network Administrator noticed that the employee's computer log reports showed visits to porn sites, told the employee to stop, but informed no one else.
The employer's conflicting company policies concerning internet and email monitoring apparently also contributed to the inertia. In early 2000, the employee's immediate supervisor told the Senior Network Administrator that the employee was visiting inappropriate websites. The Administrator reviewed only the employee's logs, which again showed visits to porn sites, and informed the employee's supervisor and the Director of Network and PC Services. The Director told the Administrator to never again access employee internet logs. Her concern was a 1999 policy communicated to certain management personnel forbidding any employee from monitoring any other employee's computer use "just for the sake of monitoring."
However, the employer also had an email and internet policy that stated that all email messages were the property of the employer and reserved the employer's right to review and access all email messages. The policy further stated that employees were permitted to access only business-related websites and provided that any employee aware of a violation of the policy was to notify personnel. Further, the policy warned that violators would be subject to discipline, up to and including termination.
The employee continued his activities through 2000 and 2001. In March 2001, after a co-worker complained about the employee, the employee's supervisor learned that the employee was again accessing porn sites – as well as at least one that mentioned children. The employee's supervisor told the employee to stop his inappropriate computer usage. In June 2001, although he noticed that the employee had reverted to his old behavior, the supervisor told no one and left on a business trip. By the time he returned, the employee had been arrested on child pornography charges. Days before the arrest, the employee had transmitted three photos of his stepdaughter from his work computer to a child porn site to gain access to it.
The child's mother, who had married the employee the year before, sued the company. The mother alleged that the Company knew or should have known that the employee was using its equipment to view and download child pornography and had a duty to report the conduct to the proper authorities, which it breached. The trial court granted summary judgment for the employer, finding that the company "acted as a reasonably prudent corporation" and had "no duty to investigate the private communications of its employees."
On appeal, the court first addressed the fact that the employer had the ability to monitor employee Internet use. Second, the court addressed the employer's right to monitor employee Internet use. The company had a technology policy in place, the employee was aware of it, his office had no doors, and his screen was visible to everyone. The court held that the employee "had no legitimate expectation of privacy that would prevent his employer from accessing his computer to determine if he was using it to view adult or child pornography." Next, the court determined that the employer was on notice of the employee's activities and that further investigation would have "readily uncovered the full scope of Employee's activities." Individuals at the Company were also aware that the employee resided with a young child.
Finally, the court had to determine the heart of the matter – did the employer have a duty to act on its knowledge? The court concluded that the duty exists, based on the strong public policy against child pornography reflected in state and federal laws, coupled with the public policy favoring exposure of crime. The court thus agreed with the plaintiff that the company had a duty to report the employee's activities to the proper authorities and to take effective internal action to stop the employee's activities, whether by termination or otherwise.
The court also rejected the trial court's analysis of the employer's duty to control the employee while he was acting outside the scope of his employment to prevent him from harming others. The court determined that the employer was "under a duty to exercise reasonable care to stop Employee's activities, specifically his viewing of child pornography, which by its very nature has been deemed by the state and federal lawmakers to constitute a threat to 'others;' those 'others' being the children who are forced to engage in or are unwittingly made the subject of pornographic activities." The court remanded the case for determination of proximate cause.
The analysis. Analyses of Doe have resulted in fearful employers wondering how far courts may eventually extend this duty to report employee activities to authorities. While the duty discussed in Doe may be new, the case reinforces "dos and don'ts" that already exist:
For a while, under Ohio law it was a foregone conclusion that only an at-will employee could bring a lawsuit alleging wrongful discharge in violation of public policy. The Ohio Supreme Court first recognized an exception to the employment-at-will doctrine – when an employee is discharged or disciplined for a reason that violates Ohio's public policy – in 1989 in Greeley v. Miami Valley Maintenance Contractors, Inc.
Then, in 2003, the Ohio Supreme Court issued its decision in Coolidge v. Riverdale Local School District, and no one was sure anymore. In Coolidge, the Ohio Supreme Court held that an employee receiving temporary total disability under the Workers' Compensation Act may not be discharged solely on the basis of absenteeism if the inability to work is directly related to the condition for which the employee is on disability. The employee in that case was a teacher who was subject to a collective bargaining agreement, so the question became: could unionized employees bring claims for wrongful discharge?
The employee in Urban v. Osborn Manufacturing, Inc. apparently thought this was the case--and brought her case for wrongful discharge in violation of public policy to court. The employee was a union member and subject to a collective bargaining agreement ("CBA"). Under the terms of the CBA, she could not be fired without just cause. The CBA also provided a comprehensive dispute resolution program for disputes concerning discipline or termination.
The employee initially worked as an operator, but the employer eliminated the position and transferred her to another department. The employee complained to management that her new work area was infested with pigeon droppings and asked the company to remove the droppings. The employee told her supervisor that she would contact the Occupational Safety and Health Administration (“OSHA”) if the company did not remove the droppings. The employee never filed a formal complaint with OSHA, but continued to complain to her employer. She next complained to the company president about the droppings.
At about the same time, the employee began receiving warnings about her work performance. About one month later, the employer terminated the employee for continued poor performance. The employee's union filed a grievance on her behalf but later withdrew it. The employee then filed suit in court alleging wrongful discharge in violation of public policy. The trial court granted summary judgment in the employer's favor.
On appeal, the employee argued that the trial court erred in dismissing her claim. The employee urged the court to ignore prior cases that declined to extend wrongful discharge to union employees. In 1995, in Haynes v. Zoological Society of Cincinnati, the Ohio Supreme Court held that a CBA specifically limited the power of the employer to terminate the employee, and thus took the employee outside the context of employment at-will, and outside the class of employees for whom the wrongful-discharge tort provides protection.
The employee nonetheless urged the court to expand the holding in Coolidge to find that members of a union who are subject to a CBA can assert a claim for wrongful discharge in violation of public policy. The court rejected this argument, stating that " Coolidge does not address a union employee of a private employer nor does it allow any other expansion of wrongful termination claims outside the at-will context." The court also noted that the employee's CBA provided her with a comprehensive grievance procedure, and that she "cannot now claim wrongful discharge merely because she was dissatisfied with the outcome of the grievance process." Moreover, even if she were an at-will employee, the court was not convinced that the employee alleged facts demonstrating that her employer's act of terminating her contravened a "clear public policy." There was no evidence that she was terminated for any reason other than poor performance.
The court concluded that the employee could not bring a claim for wrongful discharge because she was not an at-will employee, finally ending the mystery of Coolidge's meaning, at least to this court of appeals.
It doesn't spell anything, but it stands for Social Security Number Verification System, or SSNVS for short. The Social Security Administration recently implemented the new online system for easier employer verification of employee social security numbers.
The Immigration Reform and Control Act of 1986 (“The Act) requires employers to verify both the employment eligibility and identity of all new hires. The Immigration and Naturalization Service (now called the Citizenship and Immigration Service) 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 identity and employment eligibility. Acceptable "List B" documents establish identity only. Acceptable "List C" documents establish employment eligibility only. A "U.S. social security card issued by the Social Security Administration" is among the "List C" documents and is often used in conjunction with a "List B" document to establish new hire employment eligibility and identity.
SSNVS allows employers to verify those social security numbers quickly, via the internet, and in large numbers if desired. The new online system offers registered employers the ability to either:
- RAIN ON YOUR COMPANY PARADE: Workers' Comp Liability Can Dampen Employer-Sponsored Social Events
- SIXTH CIRCUIT CONFIRMS IT: Pregnancy Discrimination Act Does Not Demand Better Treatment for Pregnant Employees
- TURNING A BLIND EYE: When Technology Policies At Work Aren't Put To Work
- WRONGFUL DISCHARGE: It Is Just For At-Will Employees
- GIVE ME AN S-S-N-V-S... Social Security Administration Implements New Online Verification System
RAIN ON YOUR COMPANY PARADE: Workers' Comp Liability Can Dampen Employer-Sponsored Social Events
By Steven P. DlottSummertime ranks a close second to the holiday season as the most popular time for employer-sponsored social events. Many of us fondly (or not so fondly) recall attending company picnics as kids. These days, events such as company-sponsored amusement park days are more common than company picnics. Regardless of the activity, every employer hosting a summer social event for its employees should be aware of its potential liability for employee injuries occurring during such an event.
Some employers mistakenly assume that an employee's voluntary participation in a company-sponsored recreational event eliminates any employer liability. While some states have adopted that concept, Ohio has not. The event also need not occur on the employer's premises to impose employer liability for an employee's injury.
The seminal case in Ohio, Kohlmayer v. Keller, involved an employee who injured himself during a company picnic and sued to participate in the workers' compensation fund. In finding the employer liable for the injury, the Ohio Supreme Court articulated the factors that indicated that the employee's attendance at the picnic was "logically related to his employment":
- the employer sponsored the event;
- the employer paid for the event;
- the employer supervised the event; and
- the employer's purpose was to provide employees with an outing to improve employee relations.
[i]mproved employee relationships which can, and usually do, result from the association of employees in a recreational setting produce a more harmonious working atmosphere. Better service and greater interest in the job on the part of the employees are its outgrowths...Thus, business-related benefits...which may be expected to flow to the employer from sponsoring a purely social event for his employees, are sufficiently related to the performance of the required duties of the employee so that it is 'correct to say that the Legislature intended the enterprise to bear the risk of injuries incidental to the company event.'As a result, the key to ascertaining workers' compensation liability for an employee injury at a company-sponsored event is the degree of employer involvement. Assuming the employer sponsored the event, the next question is whether the company paid for the event. Resolution of that issue becomes murky if the company paid for only a portion of the event (especially in the case of a company-sponsored amusement park day).
Courts will also consider the amount of employer supervision. The amusement-park-day example likely favors employers because employers rarely have any control or supervisory authority over the amusement park's site. However, the analysis might change if the company rented out an entire park or the particular site where an injury occurred (e.g., a picnic area). Finally, an analysis of whether the event produced "improved employee relationships" will almost always result in employer liability. An employer's very purpose in sponsoring such events is often to improve employee relations.
Perhaps the best advice for an employer planning a summertime social event for employees is – less is more. The less company involvement, the greater the likelihood that a court will not hold an employer liable for an employee injury sustained during a company-sponsored activity.
SIXTH CIRCUIT CONFIRMS IT: Pregnancy Discrimination Act Does Not Demand Better Treatment for Pregnant Employees
By Michele L. Jakubs*How does an employer accommodate a pregnant employee when the employee's condition affects her ability to work? In Reeves v. Swift Transportation, the Sixth Circuit Court of Appeals recently confirmed that employers must treat pregnant employees the same as all other employees--no better, no worse.
The employee in this case worked as a truck driver beginning in August 2002. When she applied for the job, the company informed her that the job required bending, twisting, climbing, squatting, crouching, and balancing. The company also informed her that the job sometimes required strenuous physical activity, including pushing or pulling up to 200 pounds of freight with a dolly, pushing up to 100 pounds without mechanical aid, and lifting sixty pounds over her head. During the application process, the employee represented that she could bear the level of physical strain that the job required.
In November 2002, the employee learned that she was pregnant. She saw her doctor, who restricted her to light work pending her first appointment with an obstetrician. When the employee returned to work with her doctor's note, the employer told her it had no light work for her to do and sent her home.
The employer had a policy of providing light-duty work--but only to employees who had been injured on the job. Injured employees received light-duty assignments like office work.
The employee visited her obstetrician, who told the employee that she could continue working if she performed light work only and did not lift more than twenty pounds. The obstetrician gave the employee a letter setting forth these restrictions.
The employee told her employer that she could not perform regular truck driver duties but continued to request special light duty work assignments. The employer continued to inform her that it had no light duty work for her. The employee continued to contact her employer every day to request light duty work, which the employer continued to inform her it did not have for her. The employee was also not entitled to leave under the Family and Medical Leave Act because she had worked for the company for less than one year. The employer terminated the employee in late November 2002.
The employee filed suit in federal court, alleging violations of the Pregnancy Discrimination Act ("PDA"). The PDA provides, in part:
[w]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work...The lower court found in favor of the employer, and the Sixth Circuit Court of Appeals affirmed. The employee attempted to argue that the employer's light-duty policy was direct evidence of discrimination. The Court disagreed because "the Act merely requires employers to 'ignore' employee pregnancies" and the employer's policy was "indisputably pregnancy-blind." It did not grant or deny light work on the basis of pregnancy, but on the non-pregnancy basis of whether there had been a work-related injury or condition. The court found, therefore, that the policy's express terms could not serve as direct evidence of discrimination.
The court then performed an indirect evidence analysis. The court found that the employee met her initial burden of establishing a prima facie case. The employer met its burden of establishing a nondiscriminatory reason for terminating the employee, i.e., she could not perform the heavy lifting required of truck drivers.
The employee could not establish that the employer's reason was pretext for discrimination. As a result, her claim failed. The court also noted that the employee failed to produce evidence tending to prove a discriminatory motive, nor did she even allege that the employer acted with discriminatory intent. Finally, the court accepted the reasoning of other courts that the PDA requires only equal treatment.
The employer had two things going for it: a clear policy and supervisors who understood its application. Employers should have policies that are "pregnancy-blind." In addition, employers should ensure that their supervisors apply their policies uniformly. Finally, keep in mind that any analysis of a situation like this should include an understanding of other state and federal law implications. When in doubt, consult your legal counsel.
*Michele Jakubs practices in all areas of employment litigation. For more information about light-duty work policies or pregnancy discrimination, please contact Michele at (216) 696-4441 or mlj@zrlaw.com.
TURNING A BLIND EYE: When Technology Policies At Work Aren't Put To Work
By Helena Oroz*Employee email and internet monitoring are really nothing new. Most employers have had such policies and practices in place for years. An employer's right to monitor the use of its own equipment and communication systems is pretty solid if employees are on notice. So why does a New Jersey state case involving internet monitoring have everyone so excited? Instead of a case about employee privacy, the court was confronted with questions about an employer's duty and liability to third parties when it turns a blind eye to harmful computer use.
The case. In Doe v. XYC Corporation, an accountant used his work computer to not only access pornographic websites but also to store and transmit child pornography. Several individuals at his company knew of the employee's activities but failed to take further action. The court's decision describes at least six incidents of managers learning of the employee's activities but doing virtually nothing. Starting in 1998 or 1999, the employer's Internet Services Manager and Senior Network Administrator noticed that the employee's computer log reports showed visits to porn sites, told the employee to stop, but informed no one else.
The employer's conflicting company policies concerning internet and email monitoring apparently also contributed to the inertia. In early 2000, the employee's immediate supervisor told the Senior Network Administrator that the employee was visiting inappropriate websites. The Administrator reviewed only the employee's logs, which again showed visits to porn sites, and informed the employee's supervisor and the Director of Network and PC Services. The Director told the Administrator to never again access employee internet logs. Her concern was a 1999 policy communicated to certain management personnel forbidding any employee from monitoring any other employee's computer use "just for the sake of monitoring."
However, the employer also had an email and internet policy that stated that all email messages were the property of the employer and reserved the employer's right to review and access all email messages. The policy further stated that employees were permitted to access only business-related websites and provided that any employee aware of a violation of the policy was to notify personnel. Further, the policy warned that violators would be subject to discipline, up to and including termination.
The employee continued his activities through 2000 and 2001. In March 2001, after a co-worker complained about the employee, the employee's supervisor learned that the employee was again accessing porn sites – as well as at least one that mentioned children. The employee's supervisor told the employee to stop his inappropriate computer usage. In June 2001, although he noticed that the employee had reverted to his old behavior, the supervisor told no one and left on a business trip. By the time he returned, the employee had been arrested on child pornography charges. Days before the arrest, the employee had transmitted three photos of his stepdaughter from his work computer to a child porn site to gain access to it.
The child's mother, who had married the employee the year before, sued the company. The mother alleged that the Company knew or should have known that the employee was using its equipment to view and download child pornography and had a duty to report the conduct to the proper authorities, which it breached. The trial court granted summary judgment for the employer, finding that the company "acted as a reasonably prudent corporation" and had "no duty to investigate the private communications of its employees."
On appeal, the court first addressed the fact that the employer had the ability to monitor employee Internet use. Second, the court addressed the employer's right to monitor employee Internet use. The company had a technology policy in place, the employee was aware of it, his office had no doors, and his screen was visible to everyone. The court held that the employee "had no legitimate expectation of privacy that would prevent his employer from accessing his computer to determine if he was using it to view adult or child pornography." Next, the court determined that the employer was on notice of the employee's activities and that further investigation would have "readily uncovered the full scope of Employee's activities." Individuals at the Company were also aware that the employee resided with a young child.
Finally, the court had to determine the heart of the matter – did the employer have a duty to act on its knowledge? The court concluded that the duty exists, based on the strong public policy against child pornography reflected in state and federal laws, coupled with the public policy favoring exposure of crime. The court thus agreed with the plaintiff that the company had a duty to report the employee's activities to the proper authorities and to take effective internal action to stop the employee's activities, whether by termination or otherwise.
The court also rejected the trial court's analysis of the employer's duty to control the employee while he was acting outside the scope of his employment to prevent him from harming others. The court determined that the employer was "under a duty to exercise reasonable care to stop Employee's activities, specifically his viewing of child pornography, which by its very nature has been deemed by the state and federal lawmakers to constitute a threat to 'others;' those 'others' being the children who are forced to engage in or are unwittingly made the subject of pornographic activities." The court remanded the case for determination of proximate cause.
The analysis. Analyses of Doe have resulted in fearful employers wondering how far courts may eventually extend this duty to report employee activities to authorities. While the duty discussed in Doe may be new, the case reinforces "dos and don'ts" that already exist:
- DO promulgate an effective technology policy and ensure that all employees are aware of it. While it is not necessary or desirable to have employees feel like "Big Brother" is constantly watching their every move, you do need to ensure that employees are on notice that their workplace communications are subject to monitoring.
- DO enforce your technology policy. Determine in advance what the internal course of action will be if you discover an employee accessing inappropriate websites or the like.
- DON'T have conflicting policies in place. You cannot issue or review your technology policy in a vacuum – ensure that your policies are in sync with each other to avoid confusion and misapplication.
- DON'T assume that a verbal warning will end what could be compulsive, destructive, or even harmful behavior.
- DON'T turn a blind eye to criminal behavior. This is really the baseline rule illustrated by the Doe case.
WRONGFUL DISCHARGE: It Is Just for At-Will Employees
By Robert W. HartmanFor a while, under Ohio law it was a foregone conclusion that only an at-will employee could bring a lawsuit alleging wrongful discharge in violation of public policy. The Ohio Supreme Court first recognized an exception to the employment-at-will doctrine – when an employee is discharged or disciplined for a reason that violates Ohio's public policy – in 1989 in Greeley v. Miami Valley Maintenance Contractors, Inc.
Then, in 2003, the Ohio Supreme Court issued its decision in Coolidge v. Riverdale Local School District, and no one was sure anymore. In Coolidge, the Ohio Supreme Court held that an employee receiving temporary total disability under the Workers' Compensation Act may not be discharged solely on the basis of absenteeism if the inability to work is directly related to the condition for which the employee is on disability. The employee in that case was a teacher who was subject to a collective bargaining agreement, so the question became: could unionized employees bring claims for wrongful discharge?
The employee in Urban v. Osborn Manufacturing, Inc. apparently thought this was the case--and brought her case for wrongful discharge in violation of public policy to court. The employee was a union member and subject to a collective bargaining agreement ("CBA"). Under the terms of the CBA, she could not be fired without just cause. The CBA also provided a comprehensive dispute resolution program for disputes concerning discipline or termination.
The employee initially worked as an operator, but the employer eliminated the position and transferred her to another department. The employee complained to management that her new work area was infested with pigeon droppings and asked the company to remove the droppings. The employee told her supervisor that she would contact the Occupational Safety and Health Administration (“OSHA”) if the company did not remove the droppings. The employee never filed a formal complaint with OSHA, but continued to complain to her employer. She next complained to the company president about the droppings.
At about the same time, the employee began receiving warnings about her work performance. About one month later, the employer terminated the employee for continued poor performance. The employee's union filed a grievance on her behalf but later withdrew it. The employee then filed suit in court alleging wrongful discharge in violation of public policy. The trial court granted summary judgment in the employer's favor.
On appeal, the employee argued that the trial court erred in dismissing her claim. The employee urged the court to ignore prior cases that declined to extend wrongful discharge to union employees. In 1995, in Haynes v. Zoological Society of Cincinnati, the Ohio Supreme Court held that a CBA specifically limited the power of the employer to terminate the employee, and thus took the employee outside the context of employment at-will, and outside the class of employees for whom the wrongful-discharge tort provides protection.
The employee nonetheless urged the court to expand the holding in Coolidge to find that members of a union who are subject to a CBA can assert a claim for wrongful discharge in violation of public policy. The court rejected this argument, stating that " Coolidge does not address a union employee of a private employer nor does it allow any other expansion of wrongful termination claims outside the at-will context." The court also noted that the employee's CBA provided her with a comprehensive grievance procedure, and that she "cannot now claim wrongful discharge merely because she was dissatisfied with the outcome of the grievance process." Moreover, even if she were an at-will employee, the court was not convinced that the employee alleged facts demonstrating that her employer's act of terminating her contravened a "clear public policy." There was no evidence that she was terminated for any reason other than poor performance.
The court concluded that the employee could not bring a claim for wrongful discharge because she was not an at-will employee, finally ending the mystery of Coolidge's meaning, at least to this court of appeals.
GIVE ME AN S-S-N-V-S... Social Security Administration Implements New Online Verification System
By Lois A. GruhinIt doesn't spell anything, but it stands for Social Security Number Verification System, or SSNVS for short. The Social Security Administration recently implemented the new online system for easier employer verification of employee social security numbers.
The Immigration Reform and Control Act of 1986 (“The Act) requires employers to verify both the employment eligibility and identity of all new hires. The Immigration and Naturalization Service (now called the Citizenship and Immigration Service) 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 identity and employment eligibility. Acceptable "List B" documents establish identity only. Acceptable "List C" documents establish employment eligibility only. A "U.S. social security card issued by the Social Security Administration" is among the "List C" documents and is often used in conjunction with a "List B" document to establish new hire employment eligibility and identity.
SSNVS allows employers to verify those social security numbers quickly, via the internet, and in large numbers if desired. The new online system offers registered employers the ability to either:
- receive instant verification of up to ten names and social security numbers per screen; or
- receive results usually within one business day for uploaded batch files of up to 250,000 names and social security numbers.
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