*By David R. Vance
Title VII applies to employers who employ 15 or more employees for more
than 19 weeks in the current or preceding calendar year. The U.S. Equal
Employment Opportunity Commission (“EEOC”) requires private employers,
who are subject to Title VII of the Civil Rights Act and have 100 or
more employees, to file annually an Employer Information Report (EEO-1)
survey. An employer with less than 100 employees also must file an
EEO-1 if the company is subject to Title VII and is owned or affiliated
with another company which combined employs a total of 100 or more
employees. Some private federal contractors must also complete the
survey.
If your company has not already, it should receive from the
EEOC notification regarding the survey including filing materials. The
survey provides numerical data of employees by job category, ethnicity,
race and gender and must be completed by September 30, 2009. The EEOC
prefers the form be submitted online at http://www.eeoc.gov/eeo1survey/. A hardcopy of the form and further instructions also are available at this website.
If you have any questions about the applicability of the survey to your business, please contact David Vance (drv@zrlaw.com) at 216.696.4441.
*David Vance practices in all areas of
labor and employment law. For more information on any labor or
employment issue, contact David at 216.696.4441 or drv@zrlaw.com.
Tuesday, August 11, 2009
Saturday, August 8, 2009
Amendments to New York Insurance Law Extends “Mini-COBRA” Eligibility Period and Benefits for Dependent Children
*By Patrick J. Hoban
New York Governor David Patterson signed two bills into law that require commercial health insurers issuing group health policies under state law to offer up to 36 months of healthcare continuation coverage for eligible employees and extend dependent coverage to covered employee’s children up to the age of 29 respectively.
The amendment to Section 3221 of the New York State insurance law requires insurers to offer policies that extend continuation coverage for eligible employees from 18 to 36 months. As part of the State’s “Mini-COBRA” law, the requirement applies to all employer policyholders regardless of the size of their workforce. The amendment did not change other statutory provisions regarding eligibility, election, and events that terminate continuation coverage. While the change applies to any policies or contracts issued, renewed, modified, or amended after July 1, 2009, the New York State Department of Insurance expects that the new benefit will apply to most policies on its next annual renewal date.
The amendment to Section 3216 requires insurers to offer coverage to the unmarried “dependent” children of covered employees up to the age of 29, without regard to the child’s degree of financial dependence. Children are eligible for this coverage if they are not eligible for employer-provided insurance in their own right, they live, work, or reside in New York or the service area of the insurer, and they are not covered by Medicare. Employers are not required to pay for any of the cost of this coverage. Employees and qualifying dependent children may elect prospective coverage under the new law for up to twelve months after enactment of the law if a dependent child’s coverage was terminated before age 29 under the terms of a prior group policy. Coverage is terminated when a dependent child no longer meets the eligibility requirements, fails to pay premiums, of the group policy is terminated and not replaced with another group policy. The law takes effect on September 1, 2009, and will apply to contracts issued, renewed, modified, altered or amended on or after that date.
If you insure employees under New York State law and have any questions about how these changes will affect your business, please contact Pat Hoban (pjh@zrlaw.com) 216.696.4441.
*Patrick J. Hoban practices in all areas of labor and employment law, with a focus on private and public sector labor law. Contact him at 614.224.4411 or pjh@zrlaw.com.
New York Governor David Patterson signed two bills into law that require commercial health insurers issuing group health policies under state law to offer up to 36 months of healthcare continuation coverage for eligible employees and extend dependent coverage to covered employee’s children up to the age of 29 respectively.
The amendment to Section 3221 of the New York State insurance law requires insurers to offer policies that extend continuation coverage for eligible employees from 18 to 36 months. As part of the State’s “Mini-COBRA” law, the requirement applies to all employer policyholders regardless of the size of their workforce. The amendment did not change other statutory provisions regarding eligibility, election, and events that terminate continuation coverage. While the change applies to any policies or contracts issued, renewed, modified, or amended after July 1, 2009, the New York State Department of Insurance expects that the new benefit will apply to most policies on its next annual renewal date.
The amendment to Section 3216 requires insurers to offer coverage to the unmarried “dependent” children of covered employees up to the age of 29, without regard to the child’s degree of financial dependence. Children are eligible for this coverage if they are not eligible for employer-provided insurance in their own right, they live, work, or reside in New York or the service area of the insurer, and they are not covered by Medicare. Employers are not required to pay for any of the cost of this coverage. Employees and qualifying dependent children may elect prospective coverage under the new law for up to twelve months after enactment of the law if a dependent child’s coverage was terminated before age 29 under the terms of a prior group policy. Coverage is terminated when a dependent child no longer meets the eligibility requirements, fails to pay premiums, of the group policy is terminated and not replaced with another group policy. The law takes effect on September 1, 2009, and will apply to contracts issued, renewed, modified, altered or amended on or after that date.
If you insure employees under New York State law and have any questions about how these changes will affect your business, please contact Pat Hoban (pjh@zrlaw.com) 216.696.4441.
*Patrick J. Hoban practices in all areas of labor and employment law, with a focus on private and public sector labor law. Contact him at 614.224.4411 or pjh@zrlaw.com.
Wednesday, August 5, 2009
Navigating a DOL Compliant Salary Reduction and/or Furlough
*By Michele L. Jakubs
Salary reductions or voluntary furloughs are increasingly popular for employers facing economic hardship. However, the Fair Labor Standards Act (the “Act”) imposes statutory requirements related to salary reductions and furloughs dependent upon an employee’s non-exempt or exempt status. Under the Act, an employer may reduce a non-exempt employee’s hourly wage and/or scheduled hours so long as the employer pays the minimum wage and statutory overtime due for all hours worked.
Implementing salary reductions or furloughs for exempt employees implicates more complex statutory requirements. Employers implementing these programs have greater considerations. For example, reducing an exempt employee’s salary to less than $455 per week changes the employee’s exempt status to non-exempt. Once an employee is non-exempt, the employer must pay minimum wage and statutory overtime due for all hours worked. In addition, an employer who decides to utilize furloughs in an effort to reduce costs must place its exempt employees on furlough for the entire workweek. If an exempt employee performs any work in a workweek, then the employee must receive his/her full salary for that week. As a result, exempt employees selected for a furlough cannot perform any work, including the most basic work functions such as checking work email from a blackberry or home computer or taking a work related phone call. Employers must pay employees for the furlough week if the employee performs even such basic work functions.
Because of the complexities associated with salary reductions and furloughs, the Department of Labor (“DOL”) just issued an FAQ to assist employers in navigating this potential minefield. Employers may review the DOL’s FAQ at http://www.dol.gov/esa/WHD/flsa/FurloughFAQ.pdf.
*Michele L. Jakubs practices in all areas of employment litigation and wage and hour compliance and administration. For more information concerning the Fair Labor Standards Act or any other employment issue, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
Salary reductions or voluntary furloughs are increasingly popular for employers facing economic hardship. However, the Fair Labor Standards Act (the “Act”) imposes statutory requirements related to salary reductions and furloughs dependent upon an employee’s non-exempt or exempt status. Under the Act, an employer may reduce a non-exempt employee’s hourly wage and/or scheduled hours so long as the employer pays the minimum wage and statutory overtime due for all hours worked.
Implementing salary reductions or furloughs for exempt employees implicates more complex statutory requirements. Employers implementing these programs have greater considerations. For example, reducing an exempt employee’s salary to less than $455 per week changes the employee’s exempt status to non-exempt. Once an employee is non-exempt, the employer must pay minimum wage and statutory overtime due for all hours worked. In addition, an employer who decides to utilize furloughs in an effort to reduce costs must place its exempt employees on furlough for the entire workweek. If an exempt employee performs any work in a workweek, then the employee must receive his/her full salary for that week. As a result, exempt employees selected for a furlough cannot perform any work, including the most basic work functions such as checking work email from a blackberry or home computer or taking a work related phone call. Employers must pay employees for the furlough week if the employee performs even such basic work functions.
Because of the complexities associated with salary reductions and furloughs, the Department of Labor (“DOL”) just issued an FAQ to assist employers in navigating this potential minefield. Employers may review the DOL’s FAQ at http://www.dol.gov/esa/WHD/flsa/FurloughFAQ.pdf.
*Michele L. Jakubs practices in all areas of employment litigation and wage and hour compliance and administration. For more information concerning the Fair Labor Standards Act or any other employment issue, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
Thursday, July 30, 2009
EMPLOYMENT LAW QUARTERLY | Summer 2009, Volume XI, Issue iii
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The U.S. Supreme Court recently held in Gross v. FBL Financial Services , Inc., 557 U.S. ___ (2009), that a plaintiff bringing a disparate-treatment claim under the Age Discrimination in Employment Act of 1967 (“ADEA”) must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The court stated that the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.
In Gross, the plaintiff began working for FBL Financial Services (FBL) in the early 1970s and was promoted to the position of claims administration director in 2001. But in 2003, when the plaintiff was 54 years old, he was reassigned to the position of claims project coordinator. At the same time, FBL transferred many of the plaintiff’s job responsibilities to the newly created position of claims administration manager. That position was ultimately given to another younger employee, who was then in her early forties, and had previously been supervised by the plaintiff. The plaintiff considered his reassignment a demotion and filed suit in district court alleging an ADEA disparate-treatment claim against FBL.
The district court instructed the jury that it must return a verdict for the plaintiff if he proved, by a preponderance of the evidence, that FBL “demoted [him] to claims project coordinator” and that his “age was a motivating factor” in FBL’s decision to demote him. The jury was further instructed that the plaintiff’s age would qualify as a “‘motivating factor’ if it played a part or role in [FBL]’s decision to demote [him].” The jury returned a verdict for the plaintiff.
FBL appealed the jury instructions to the U.S. Court of Appeals for the Eighth Circuit. On appeal, the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, the court discussed the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964. The Price Waterhouse Court held that if a plaintiff shows that discrimination was a “motivating factor” in the employer’s decision, the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of the unpermitted consideration.
The U.S. Supreme Court granted certiorari and vacated the decision of the Eighth Circuit. The U.S. Supreme Court held that Title VII is materially different than ADEA with respect to the relevant burden of persuasion. The court stated that the burden-shifting framework does not apply to ADEA claims. The text of ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a “motivating factor.” Rather, the court cited to ADEA, which states in relevant part, that “[i]t shall be unlawful for an employer…to…discriminate…, because of such individual’s age.” The court emphasized that “because of” age means that age was the “reason” that the employer decided to act.
The court finally held in Gross that a plaintiff retains the burden of persuasion to prove that age was the “but-for” cause of the employer’s adverse action. Employers should recognize that employees maintain the burden of persuasion in ADEA disparate-treatment claims when analyzing the merits of such a case.
The Cuyahoga County Court of Appeals held that Ohio Revised Code (“R.C.”) 4112.02 and 4112.99 age discriminations claims are not exempt from the election of remedies provisions of R.C. 4112.08. As a result, a person who files a charge alleging age discrimination with the Equal Employment Opportunity (“EEOC”) or Ohio Civil Rights Commission (“OCRC”) is barred from later filing an age discrimination lawsuit.
In Neal v. Franklin Plaza Nursing Home, the Plaintiff, a nurse’s assistant, filed a lawsuit against her employer alleging wrongful termination of her employment pursuant to R.C. 4112.02 and 4112.99. The employer fired her for sleeping on the job, refusing to take a patient to the bathroom, and failing to maintain acceptable standards of respect for the residents. The Plaintiff filed an EEOC charge claiming that her employer discriminated against her because of her age, 71, and replaced her with an individual under 40 or substantially younger than her.
On appeal, the Cuyahoga County Court of Appeals cited the Ohio Supreme Court decision Smith v. Friendship Village of Dublin, Ohio. In Smith, the Ohio Supreme Court considered whether employees alleging handicap discrimination who had filed a charge with the OCRC were barred from instituting suit under R.C. 4112.99. The Smith Court reasoned that no election of remedies applied to a handicap discrimination suit under R.C. 4112.99 because, in contrast to age discrimination, no election of remedies scheme existed.
The Cuyahoga County Court of Appeals also cited a federal Northern District of Ohio case, Senter v. Hillside Acres Nursing Ctr. Of Williard, Inc. In that case, the District Court held that a plaintiff who first files an age discrimination charge with the OCRC may not later bring a civil lawsuit under any provision of R.C. 4112. Additionally, the Cuyahoga County Court of Appeals stated that the filing of a claim with the EEOC constitutes a filing with the OCRC and precludes a plaintiff from pursuing a civil action in common pleas court under R.C. 4112.99. Thus, the Cuyahoga County Court of Appeals’ decision specifically rejected the Southern District of Ohio’s 2001 decision in Sterry v. Safe Auto Ins. Co., which held to the contrary in 2001.
As a result of this decision, employers should recognize that the Cuyahoga Court of Appeals prohibits an employee who files an age discrimination charge with the EEOC or OCRC from bringing a private age discrimination claim under R.C. 4112.02 and 4112.99.
*Jason Rossiter has extensive experience representing employers in litigating and arbitrating workplace disputes in Ohio, California and throughout the country. For more information about age discrimination or any other employment-related tort, please contact Zashin & Rich at 216.696.4441.
The Ohio Supreme Court recently issued an important decision interpreting Ohio’s prevailing wage law, Sheet Metal Workers’ International Association, Local Union No. 33 v. Gene’s Refrigeration, 2009-Ohio-2747. The Court held: (1) that a labor organization that obtains authorization to represent a single employee does not become an “interested party” with authority to pursue prevailing wage law violations on behalf of other employees performing work for the job; and (2) that only those employees working on the job site need be paid the prevailing wage.
The appellant Gene’s Refrigeration paid only its employees working on the job site the prevailing wage. It did not pay the prevailing wage to its employees working off-site fabricating items for the public project. The appellee Local 33, which was not the bargaining representative for Gene’s employees, received authorization to represent a single off-site employee. Despite only receiving authorization from one employee, it brought suit on behalf of all of Gene’s employees alleging it was an “interested party” under R.C. 4115.03(F)(3).
The court of appeals ruled that Local 33’s authorization to represent a single employee provided standing with respect to the entire project and all of Gene’s employees working on the project. The court of appeals further held that Gene’s, in addition to the employees working on-site, was required to pay the prevailing wage to all employees performing work on the public project including those working off-site. In a well reasoned decision, the Ohio Supreme Court overruled the court of appeals decision.
First, the Ohio Supreme Court in holding that Local 33 only represented the interests of the one employee from which it received authorization, the Court reasoned that the authorization of a single employee, particularly one not entitled to the prevailing wage, is insufficient to permit the Union to represent all those employees working on the job. The Court further reasoned that an employee’s authorization is similar to an attorney-client relationship, and the creation of such a relationship between one employee and the union cannot be imputed, without more, to all the other employees.
Revised Code 4115.05 fails to indicate specifically where the work must be performed in order to receive the prevailing wage. However, the Court determined that the legislative history of Ohio’s prevailing wage law suggests it was meant to be applied only to those working on-site. The Court also reasoned that a proper statutory interpretation of Ohio’s prevailing wage law leads to but one conclusion – only those employees working on the job site need by paid the prevailing wage. Importantly, the Court recognized that the construction industry since 1935 has applied “prevailing-wage laws only to workers on the project site,” and that any deviation from the industry practice would result in unworkable consequences.
Employers performing work on public projects can breathe a sigh of relief. The Ohio Supreme Court upheld what employers have been doing for the last 70 years – only paying on-site workers the prevailing wage. Additionally, a union cannot impute representation over an entire labor force by receiving authorization from a single employee.
*Michele L. Jakubs practices in all areas of employment litigation and wage and hour compliance and administration. For more information concerning changes to prevailing wage or any other employment issue, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
The Ohio Supreme Court recently upheld the constitutionality of a 2006 state law, R.C. 9.481 that bars a political subdivision of the state (e.g., a city, county, township or school district) from requiring its employees to reside within that political subdivision as a condition of employment. Specifically, the Court determined in Lima v. State, 2009-Ohio-2597, that the General Assembly may enact laws pursuant to Section 34 Article II of the Ohio Constitution which provides “for the comfort, health, safety and general welfare” of all employees and no other provision of the constitution shall impair or limit this power.
In Lima, the court consolidated the appeals of The City of Lima v. The State of Ohio and The City of Akron v. The State of Ohio et al. The issue before the Court was whether R.C. 9.481 overrides any conflicting law of a political subdivision, including residency requirements. Lima’s city charter required all city employees appointed by the mayor to live within the city limits. Akron’s city charter similarly required all classified and unclassified city employees to reside within the city for the duration of their employment. Both cities filed court actions seeking declarations that R.C. 9.481 was unconstitutional as applied to their residency requirements.
The cities of Lima and Akron argued that the General Assembly exceeded its authority when it passed R.C. 9.481 and violated the cities’ home rule authority to “exercise all powers of local self-government” under Article XVIII of the Ohio Constitution. However, the Court did not agree with the cities’ arguments.
The Court held that R.C. 9.481 provides employees more freedom and allows for their comfort and general welfare. The Court stated that it has repeatedly interpreted Section 34 as a broad grant of authority to the General Assembly and not as a limitation on its power to enact legislation. In fact, the Court noted that on at least three separate occasions it has upheld the constitutionality of statutes enacted pursuant to Section 34, Article II. Justice Pfeifer concluded his opinion by stating, “R.C. 9.481 is constitutional and, therefore, …municipalities may not require their employees to reside in a particular municipality, other than as provided in R.C. 9.481(B)(2)(b).”
Interestingly, the Court failed to discuss R.C. 9.481(B)(2)(b), which acts as the only exception to R.C. 9.481 and permits municipalities to require certain employees to live no farther away than adjacent counties to “ensure adequate response times * * * to emergencies or disasters.” Under the exception, cities could require certain employees to live within a particular distance from the city for safety reasons. The question then becomes what constitutes an “adequate” distance for response times.
Political subdivisions can no longer require their employees to live within city limits. However, R.C. 9.481(B)(2)(b) does grant political subdivisions the power to ensure that certain employees live close enough to the city to ensure adequate emergency response times.
*George S. Crisci is an OSBA Certified Specialist in Labor and Employment Law. George represents employers in all facets of employment law, and both public and private sector management in actions before the NLRB. For more information concerning any labor or employment issue, please contact George at 216.696.4441 or gsc@zrlaw.com.
The United States Court of Appeals for the Sixth Circuit recently held, in Thompson v. North American Stainless, LP, U.S. App. LEXIS 12100 (6th Cir. 2009), that § 704(a) of Title VII of the Civil Rights Act of 1964 does not create a separate third-party retaliation claim for persons who have not personally engaged in a protected activity. In particular, the Court determined that the Plaintiff could not base his retaliation claim solely on the protected activity of another individual.
In Thompson, the Plaintiff worked as an engineer for the Defendant and began dating Miriam Regaldo shortly after the Defendant hired her in 2000. In September 2002, Regaldo filed a claim with Equal Employment Opportunity Commission (EEOC) against the Defendant alleging that her supervisors had discriminated against her based on gender. About three weeks later, the Defendant terminated the Plaintiff’s employment based on his performance. The Plaintiff subsequently filed a complaint against the Defendant alleging the Defendant terminated him in retaliation for Regaldo’s, then fiancée’s EEOC charge.
The Plaintiff argued that the language of § 704(a) should protect claimants who are “closely related [to] or associated [with]” a person engaged in protected activity. The Court declined the Plaintiff’s argument, and joined with the Third, Fifth and Eighth Circuits which all have unanimously rejected such third-party retaliation claims. The court stated; “[P]laintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. However, we decline the invitation to rewrite the law."
Instead the Sixth Circuit held that the plain language of § 704(a) explicitly identifies those individuals who are protected – employees who “opposed any practice made any unlawful employment practice” or who “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. The Court stated that § 704(a) clearly limits the class of claimants to those who actually engaged in the protected activity. Plaintiff’s claim failed because his relationship to Regaldo was the sole motivating factor in his complaint, and he did not claim that he engaged in any statutorily protected activity, either on his own behalf or on behalf of Regaldo.
The Court further held that it must look at what Congress actually enacted, not what it believes Congress might have passed were it confronted with the current facts. The Court held that it was not “absurd” for Congress to limit the class of persons who are entitled to sue employees who personally opposed a practice, made a charge, or assisted or participated in an investigation.
Employers should recognize it is not enough for an employee to file a retaliation claim based on an association (e.g., spouse, friend) with someone engaged in a protected activity. Rather, an employee must have actually engaged in a protected activity to file a retaliation claim.
Zashin & Rich Welcomes Jessica Tucci
to its Employment and Labor Group Jessica’s practice encompasses all areas of public and private labor and employment related issues.
Jessica received her undergraduate degree in Labor Studies and Industrial Relations from the Pennsylvania State University. Prior to attending law school, Jessica worked as a union organizer for the Service Employees International Union Local 1199NY and as a campaign coordinator for the Prewitt Organizing Fund. Jessica then earned her law degree (J.D.) from The University of Dayton School of Law where she graduated cum laude and with track honors.
Jessica is admitted to practice law in the State of Ohio. She is a member of the Akron and Ohio Bar Associations.
Please join us in welcoming Jessica to Z&R!
October 15 & 16, 2009
Hilton, Easton Town Center, Columbus, Ohio
Stephen Zashin will present “The New FMLA Regulations” and George Crisci will present “Latest Developments from SERBia”. To register go to www.ohiobar.org.
November 17, 2009
Patrick Watts will moderate a one day seminar presented by the Council on Education Management entitled “FMLA Hot Topics 2009” to be held in Cleveland, Ohio. For more information go to www.counciloned.com.
- U.S. Supreme Court Holds That Plaintiff Bringing ADEA Disparate-Treatment Claim Must Prove That Age Was the “But-For” Cause of Employment Action
- Cuyahoga County Court of Appeals Holds Age Discrimination Plaintiffs Must Make An Election of Remedies
- New Ohio Supreme Court Prevailing Wage Decision Stays True To Long Standing Construction Industry Practices
- The Ohio Supreme Court Holds That Cities Cannot Require Employees To Live Within City Limits
- 6th Circuit Holds: Title VII Does Not Create Third-Party Cause of Action for Retaliation
- Z&R Shorts
U.S. Supreme Court Holds That Plaintiff Bringing ADEA Disparate-Treatment Claim Must Prove That Age Was the “But-For” Cause of Employment Action
By Jessica T. TucciThe U.S. Supreme Court recently held in Gross v. FBL Financial Services , Inc., 557 U.S. ___ (2009), that a plaintiff bringing a disparate-treatment claim under the Age Discrimination in Employment Act of 1967 (“ADEA”) must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The court stated that the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.
In Gross, the plaintiff began working for FBL Financial Services (FBL) in the early 1970s and was promoted to the position of claims administration director in 2001. But in 2003, when the plaintiff was 54 years old, he was reassigned to the position of claims project coordinator. At the same time, FBL transferred many of the plaintiff’s job responsibilities to the newly created position of claims administration manager. That position was ultimately given to another younger employee, who was then in her early forties, and had previously been supervised by the plaintiff. The plaintiff considered his reassignment a demotion and filed suit in district court alleging an ADEA disparate-treatment claim against FBL.
The district court instructed the jury that it must return a verdict for the plaintiff if he proved, by a preponderance of the evidence, that FBL “demoted [him] to claims project coordinator” and that his “age was a motivating factor” in FBL’s decision to demote him. The jury was further instructed that the plaintiff’s age would qualify as a “‘motivating factor’ if it played a part or role in [FBL]’s decision to demote [him].” The jury returned a verdict for the plaintiff.
FBL appealed the jury instructions to the U.S. Court of Appeals for the Eighth Circuit. On appeal, the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, the court discussed the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964. The Price Waterhouse Court held that if a plaintiff shows that discrimination was a “motivating factor” in the employer’s decision, the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of the unpermitted consideration.
The U.S. Supreme Court granted certiorari and vacated the decision of the Eighth Circuit. The U.S. Supreme Court held that Title VII is materially different than ADEA with respect to the relevant burden of persuasion. The court stated that the burden-shifting framework does not apply to ADEA claims. The text of ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a “motivating factor.” Rather, the court cited to ADEA, which states in relevant part, that “[i]t shall be unlawful for an employer…to…discriminate…, because of such individual’s age.” The court emphasized that “because of” age means that age was the “reason” that the employer decided to act.
The court finally held in Gross that a plaintiff retains the burden of persuasion to prove that age was the “but-for” cause of the employer’s adverse action. Employers should recognize that employees maintain the burden of persuasion in ADEA disparate-treatment claims when analyzing the merits of such a case.
Cuyahoga County Court of Appeals Holds Age Discrimination Plaintiffs Must Make An Election of Remedies
By Jason Rossiter*The Cuyahoga County Court of Appeals held that Ohio Revised Code (“R.C.”) 4112.02 and 4112.99 age discriminations claims are not exempt from the election of remedies provisions of R.C. 4112.08. As a result, a person who files a charge alleging age discrimination with the Equal Employment Opportunity (“EEOC”) or Ohio Civil Rights Commission (“OCRC”) is barred from later filing an age discrimination lawsuit.
In Neal v. Franklin Plaza Nursing Home, the Plaintiff, a nurse’s assistant, filed a lawsuit against her employer alleging wrongful termination of her employment pursuant to R.C. 4112.02 and 4112.99. The employer fired her for sleeping on the job, refusing to take a patient to the bathroom, and failing to maintain acceptable standards of respect for the residents. The Plaintiff filed an EEOC charge claiming that her employer discriminated against her because of her age, 71, and replaced her with an individual under 40 or substantially younger than her.
On appeal, the Cuyahoga County Court of Appeals cited the Ohio Supreme Court decision Smith v. Friendship Village of Dublin, Ohio. In Smith, the Ohio Supreme Court considered whether employees alleging handicap discrimination who had filed a charge with the OCRC were barred from instituting suit under R.C. 4112.99. The Smith Court reasoned that no election of remedies applied to a handicap discrimination suit under R.C. 4112.99 because, in contrast to age discrimination, no election of remedies scheme existed.
The Cuyahoga County Court of Appeals also cited a federal Northern District of Ohio case, Senter v. Hillside Acres Nursing Ctr. Of Williard, Inc. In that case, the District Court held that a plaintiff who first files an age discrimination charge with the OCRC may not later bring a civil lawsuit under any provision of R.C. 4112. Additionally, the Cuyahoga County Court of Appeals stated that the filing of a claim with the EEOC constitutes a filing with the OCRC and precludes a plaintiff from pursuing a civil action in common pleas court under R.C. 4112.99. Thus, the Cuyahoga County Court of Appeals’ decision specifically rejected the Southern District of Ohio’s 2001 decision in Sterry v. Safe Auto Ins. Co., which held to the contrary in 2001.
As a result of this decision, employers should recognize that the Cuyahoga Court of Appeals prohibits an employee who files an age discrimination charge with the EEOC or OCRC from bringing a private age discrimination claim under R.C. 4112.02 and 4112.99.
*Jason Rossiter has extensive experience representing employers in litigating and arbitrating workplace disputes in Ohio, California and throughout the country. For more information about age discrimination or any other employment-related tort, please contact Zashin & Rich at 216.696.4441.
New Ohio Supreme Court Prevailing Wage Decision Stays True To Long Standing Construction Industry Practices
By Michele L. Jakubs*The Ohio Supreme Court recently issued an important decision interpreting Ohio’s prevailing wage law, Sheet Metal Workers’ International Association, Local Union No. 33 v. Gene’s Refrigeration, 2009-Ohio-2747. The Court held: (1) that a labor organization that obtains authorization to represent a single employee does not become an “interested party” with authority to pursue prevailing wage law violations on behalf of other employees performing work for the job; and (2) that only those employees working on the job site need be paid the prevailing wage.
The appellant Gene’s Refrigeration paid only its employees working on the job site the prevailing wage. It did not pay the prevailing wage to its employees working off-site fabricating items for the public project. The appellee Local 33, which was not the bargaining representative for Gene’s employees, received authorization to represent a single off-site employee. Despite only receiving authorization from one employee, it brought suit on behalf of all of Gene’s employees alleging it was an “interested party” under R.C. 4115.03(F)(3).
The court of appeals ruled that Local 33’s authorization to represent a single employee provided standing with respect to the entire project and all of Gene’s employees working on the project. The court of appeals further held that Gene’s, in addition to the employees working on-site, was required to pay the prevailing wage to all employees performing work on the public project including those working off-site. In a well reasoned decision, the Ohio Supreme Court overruled the court of appeals decision.
First, the Ohio Supreme Court in holding that Local 33 only represented the interests of the one employee from which it received authorization, the Court reasoned that the authorization of a single employee, particularly one not entitled to the prevailing wage, is insufficient to permit the Union to represent all those employees working on the job. The Court further reasoned that an employee’s authorization is similar to an attorney-client relationship, and the creation of such a relationship between one employee and the union cannot be imputed, without more, to all the other employees.
Revised Code 4115.05 fails to indicate specifically where the work must be performed in order to receive the prevailing wage. However, the Court determined that the legislative history of Ohio’s prevailing wage law suggests it was meant to be applied only to those working on-site. The Court also reasoned that a proper statutory interpretation of Ohio’s prevailing wage law leads to but one conclusion – only those employees working on the job site need by paid the prevailing wage. Importantly, the Court recognized that the construction industry since 1935 has applied “prevailing-wage laws only to workers on the project site,” and that any deviation from the industry practice would result in unworkable consequences.
Employers performing work on public projects can breathe a sigh of relief. The Ohio Supreme Court upheld what employers have been doing for the last 70 years – only paying on-site workers the prevailing wage. Additionally, a union cannot impute representation over an entire labor force by receiving authorization from a single employee.
*Michele L. Jakubs practices in all areas of employment litigation and wage and hour compliance and administration. For more information concerning changes to prevailing wage or any other employment issue, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
The Ohio Supreme Court Holds That Cities Cannot Require Employees To Live Within City Limits
By George S. Crisci*The Ohio Supreme Court recently upheld the constitutionality of a 2006 state law, R.C. 9.481 that bars a political subdivision of the state (e.g., a city, county, township or school district) from requiring its employees to reside within that political subdivision as a condition of employment. Specifically, the Court determined in Lima v. State, 2009-Ohio-2597, that the General Assembly may enact laws pursuant to Section 34 Article II of the Ohio Constitution which provides “for the comfort, health, safety and general welfare” of all employees and no other provision of the constitution shall impair or limit this power.
In Lima, the court consolidated the appeals of The City of Lima v. The State of Ohio and The City of Akron v. The State of Ohio et al. The issue before the Court was whether R.C. 9.481 overrides any conflicting law of a political subdivision, including residency requirements. Lima’s city charter required all city employees appointed by the mayor to live within the city limits. Akron’s city charter similarly required all classified and unclassified city employees to reside within the city for the duration of their employment. Both cities filed court actions seeking declarations that R.C. 9.481 was unconstitutional as applied to their residency requirements.
The cities of Lima and Akron argued that the General Assembly exceeded its authority when it passed R.C. 9.481 and violated the cities’ home rule authority to “exercise all powers of local self-government” under Article XVIII of the Ohio Constitution. However, the Court did not agree with the cities’ arguments.
The Court held that R.C. 9.481 provides employees more freedom and allows for their comfort and general welfare. The Court stated that it has repeatedly interpreted Section 34 as a broad grant of authority to the General Assembly and not as a limitation on its power to enact legislation. In fact, the Court noted that on at least three separate occasions it has upheld the constitutionality of statutes enacted pursuant to Section 34, Article II. Justice Pfeifer concluded his opinion by stating, “R.C. 9.481 is constitutional and, therefore, …municipalities may not require their employees to reside in a particular municipality, other than as provided in R.C. 9.481(B)(2)(b).”
Interestingly, the Court failed to discuss R.C. 9.481(B)(2)(b), which acts as the only exception to R.C. 9.481 and permits municipalities to require certain employees to live no farther away than adjacent counties to “ensure adequate response times * * * to emergencies or disasters.” Under the exception, cities could require certain employees to live within a particular distance from the city for safety reasons. The question then becomes what constitutes an “adequate” distance for response times.
Political subdivisions can no longer require their employees to live within city limits. However, R.C. 9.481(B)(2)(b) does grant political subdivisions the power to ensure that certain employees live close enough to the city to ensure adequate emergency response times.
*George S. Crisci is an OSBA Certified Specialist in Labor and Employment Law. George represents employers in all facets of employment law, and both public and private sector management in actions before the NLRB. For more information concerning any labor or employment issue, please contact George at 216.696.4441 or gsc@zrlaw.com.
6th Circuit Holds: Title VII Does Not Create Third-Party Cause of Action for Retaliation
By Patrick M. WattsThe United States Court of Appeals for the Sixth Circuit recently held, in Thompson v. North American Stainless, LP, U.S. App. LEXIS 12100 (6th Cir. 2009), that § 704(a) of Title VII of the Civil Rights Act of 1964 does not create a separate third-party retaliation claim for persons who have not personally engaged in a protected activity. In particular, the Court determined that the Plaintiff could not base his retaliation claim solely on the protected activity of another individual.
In Thompson, the Plaintiff worked as an engineer for the Defendant and began dating Miriam Regaldo shortly after the Defendant hired her in 2000. In September 2002, Regaldo filed a claim with Equal Employment Opportunity Commission (EEOC) against the Defendant alleging that her supervisors had discriminated against her based on gender. About three weeks later, the Defendant terminated the Plaintiff’s employment based on his performance. The Plaintiff subsequently filed a complaint against the Defendant alleging the Defendant terminated him in retaliation for Regaldo’s, then fiancée’s EEOC charge.
The Plaintiff argued that the language of § 704(a) should protect claimants who are “closely related [to] or associated [with]” a person engaged in protected activity. The Court declined the Plaintiff’s argument, and joined with the Third, Fifth and Eighth Circuits which all have unanimously rejected such third-party retaliation claims. The court stated; “[P]laintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. However, we decline the invitation to rewrite the law."
Instead the Sixth Circuit held that the plain language of § 704(a) explicitly identifies those individuals who are protected – employees who “opposed any practice made any unlawful employment practice” or who “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. The Court stated that § 704(a) clearly limits the class of claimants to those who actually engaged in the protected activity. Plaintiff’s claim failed because his relationship to Regaldo was the sole motivating factor in his complaint, and he did not claim that he engaged in any statutorily protected activity, either on his own behalf or on behalf of Regaldo.
The Court further held that it must look at what Congress actually enacted, not what it believes Congress might have passed were it confronted with the current facts. The Court held that it was not “absurd” for Congress to limit the class of persons who are entitled to sue employees who personally opposed a practice, made a charge, or assisted or participated in an investigation.
Employers should recognize it is not enough for an employee to file a retaliation claim based on an association (e.g., spouse, friend) with someone engaged in a protected activity. Rather, an employee must have actually engaged in a protected activity to file a retaliation claim.
Z&R Shorts
Zashin & Rich Welcomes Jessica Tucci
to its Employment and Labor Group Jessica’s practice encompasses all areas of public and private labor and employment related issues.
Jessica received her undergraduate degree in Labor Studies and Industrial Relations from the Pennsylvania State University. Prior to attending law school, Jessica worked as a union organizer for the Service Employees International Union Local 1199NY and as a campaign coordinator for the Prewitt Organizing Fund. Jessica then earned her law degree (J.D.) from The University of Dayton School of Law where she graduated cum laude and with track honors.
Jessica is admitted to practice law in the State of Ohio. She is a member of the Akron and Ohio Bar Associations.
Please join us in welcoming Jessica to Z&R!
SPEAKING ENGAGEMENTS
46th Annual Midwest Labor and Employment Law SeminarOctober 15 & 16, 2009
Hilton, Easton Town Center, Columbus, Ohio
Stephen Zashin will present “The New FMLA Regulations” and George Crisci will present “Latest Developments from SERBia”. To register go to www.ohiobar.org.
November 17, 2009
Patrick Watts will moderate a one day seminar presented by the Council on Education Management entitled “FMLA Hot Topics 2009” to be held in Cleveland, Ohio. For more information go to www.counciloned.com.
Saturday, July 25, 2009
Federal Minimum Wage to $7.25 – Do You Need to Raise Your Wage Rates?
*By Michele L. Jakubs
The final phase of the 2007 amendment to the Fair Labor Standards Act goes into effect on July 24, 2009 raising the federal minimum wage to $7.25 per hour. This third, and last phase of the amendment, increases the federal minimum wage from $6.55 to $7.25 per hour. Employers must pay their employees at least minimum wage for all non-overtime hours worked (and one and one half times the employees’ regular rate of pay of all overtime hours).
Because most states have minimum wage requirements, employers must ensure that they pay their employees in accordance with the higher of the federal or state minimum wage. Many states’ minimum wage already equals or exceeds the new federal minimum wage. For example, Ohio’s current minimum wage is $7.30. As a result, Ohio employers should already pay their employees at a rate above the new federal minimum wage. Likewise, employers in the following states with minimum wage requirements equal to or higher than $7.25 should already be in compliance with the new federal minimum wage:
Employers in those states with no minimum wage laws, minimum wage rates below the new federal minimum wage rate or those states that follow the federal minimum wage law should review their employees’ rates of pay to ensure compliance with the new requirements. Employers may need to increase employee rates of pay in the following states:
Employers in Washington, D.C. must ensure that their employees receive at least the federal minimum wage plus $1.00. As such, Washington, D.C. employees should receive $8.25 or more per hour for all non-overtime hours worked.
As the new federal minimum wage goes into effect, employers throughout the country should review their employees’ hourly rates of pay to ensure that each employee receives at least the higher of their particular state’s minimum wage or the new federal minimum wage.
*Michele L. Jakubs is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in all aspects of workplace law, including the Fair Labor Standards Act. For more information about defending allegations of public policy discrimination, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
The final phase of the 2007 amendment to the Fair Labor Standards Act goes into effect on July 24, 2009 raising the federal minimum wage to $7.25 per hour. This third, and last phase of the amendment, increases the federal minimum wage from $6.55 to $7.25 per hour. Employers must pay their employees at least minimum wage for all non-overtime hours worked (and one and one half times the employees’ regular rate of pay of all overtime hours).
Because most states have minimum wage requirements, employers must ensure that they pay their employees in accordance with the higher of the federal or state minimum wage. Many states’ minimum wage already equals or exceeds the new federal minimum wage. For example, Ohio’s current minimum wage is $7.30. As a result, Ohio employers should already pay their employees at a rate above the new federal minimum wage. Likewise, employers in the following states with minimum wage requirements equal to or higher than $7.25 should already be in compliance with the new federal minimum wage:
| Arizona | Illinois | New Hampshire | Vermont |
| California | Iowa | New Mexico | Washington |
| Colorado | Maine | Ohio | West Virginia |
| Connecticut | Massachusetts | Oregon | |
| Hawaii | Michigan | Rhode Island |
Employers in those states with no minimum wage laws, minimum wage rates below the new federal minimum wage rate or those states that follow the federal minimum wage law should review their employees’ rates of pay to ensure compliance with the new requirements. Employers may need to increase employee rates of pay in the following states:
| Alabama | Kansas | Nebraska | South Carolina |
| Alaska | Kentucky | Nevada | South Dakota |
| Arkansas | Louisiana | New Jersey | Tennessee |
| Delaware | Maryland | New York | Texas |
| Florida | Minnesota | North Carolina | Utah |
| Georgia | Mississippi | North Dakota | Virginia |
| Idaho | Missouri | Oklahoma | Wisconsin |
| Indiana | Montana | Pennsylvania | Wyoming |
Employers in Washington, D.C. must ensure that their employees receive at least the federal minimum wage plus $1.00. As such, Washington, D.C. employees should receive $8.25 or more per hour for all non-overtime hours worked.
As the new federal minimum wage goes into effect, employers throughout the country should review their employees’ hourly rates of pay to ensure that each employee receives at least the higher of their particular state’s minimum wage or the new federal minimum wage.
*Michele L. Jakubs is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in all aspects of workplace law, including the Fair Labor Standards Act. For more information about defending allegations of public policy discrimination, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
Thursday, May 7, 2009
Do Employees Taking FMLA Leave Have To Comply With Employer Reporting Procedures? DOL Says Yes!
*By Stephen S. Zashin and Patrick M. Watts
On May 5, 2009, the United States Department of Labor (“DOL”) published an advisory opinion letter addressing whether employers can enforce internal absence reporting procedures under the Family Medical Leave Act (“FMLA”). The employer seeking the opinion noted that:
The current FMLA regulations became effective on January 16, 2009. The 2009 FMLA regulations include different language, noting that “it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day.” Within the opinion letter published today, the DOL rescinded opinion letter FMLA-101 and advised that an employer’s notice requirements may be enforced if the notice requirements are consistent with what is practicable given the particular circumstances. Responding to the example given by the employer, the DOL concluded that if an employee is absent on Tuesday and Wednesday, but does not report his or her need for leave until Thursday, the employer may deny FMLA leave unless unusual circumstances are present.
As illustrated within the opinion letter published today, employer’s may discipline employees and deny FMLA leave when employees fail to provide notice consistent with employer absence reporting policies and those policies are consistent with the FMLA.
*Stephen S. Zashin and Patrick M. Watts, OSBA Certified Specialists in Labor and Employment Law, have extensive expertise in FMLA administration and litigation. If you have any questions regarding FMLA leave or whether your employment policies comply with the current FMLA regulations, contact Stephen at ssz@zrlaw.com or 216.696.4441.
On May 5, 2009, the United States Department of Labor (“DOL”) published an advisory opinion letter addressing whether employers can enforce internal absence reporting procedures under the Family Medical Leave Act (“FMLA”). The employer seeking the opinion noted that:
Employers believe that opinion letter FMLA-101 prevents them from applying internal call-in policies, disciplining employees under no call/no show policies, or disciplining employees who call in late, as long as the employees provide notice within two business days that the leave was FMLA-qualifying…Under the FMLA, employees must provide notice of their need for leave “as soon as practicable” when the need for leave is not foreseeable 30 days in advance. The 1995 FMLA regulations defined “as soon as practicable” to mean “as soon as both possible and practicable, taking into account all of the facts and circumstances in the individual case.” Additionally, the 1995 FMLA regulations noted that as soon as practicable “ordinarily would mean…within one or two business days of when the need for leave becomes known to the employee.” Within opinion letter FMLA-101, the DOL concluded that an absence reporting policy requiring employees to report absences within one hour after the start of their shift violated the 1995 FMLA regulations. The DOL reasoned that the policy violated the 1995 FMLA regulations because the policy was more stringent than the 1995 FMLA regulation permitting employees to report absences within one to two business days of learning of the leave.
The current FMLA regulations became effective on January 16, 2009. The 2009 FMLA regulations include different language, noting that “it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day.” Within the opinion letter published today, the DOL rescinded opinion letter FMLA-101 and advised that an employer’s notice requirements may be enforced if the notice requirements are consistent with what is practicable given the particular circumstances. Responding to the example given by the employer, the DOL concluded that if an employee is absent on Tuesday and Wednesday, but does not report his or her need for leave until Thursday, the employer may deny FMLA leave unless unusual circumstances are present.
As illustrated within the opinion letter published today, employer’s may discipline employees and deny FMLA leave when employees fail to provide notice consistent with employer absence reporting policies and those policies are consistent with the FMLA.
*Stephen S. Zashin and Patrick M. Watts, OSBA Certified Specialists in Labor and Employment Law, have extensive expertise in FMLA administration and litigation. If you have any questions regarding FMLA leave or whether your employment policies comply with the current FMLA regulations, contact Stephen at ssz@zrlaw.com or 216.696.4441.
EMPLOYMENT LAW QUARTERLY | Spring 2009, Volume XI, Issue ii
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According to National Labor Relations Board (“NLRB”) data, unions won 66.8 percent of representation elections conducted by the NLRB in 2008. This figure represents the highest win rate since 1955 when unions won 67.6 percent of the elections in which they participated. The 2008 union election win rate is a 6.4 percent increase over 2007 and represents an 8.4 percent increase over 2004.
The number of voters eligible to participate in the elections also increased from 102,494 in 2007 to 108,587 in 2008. In 2008, unions organized 70,511 workers through NLRB elections, up from 58,260 in 2007.
Unions had the greater organizing success among both small and large collective bargaining units. Unions won 69.3 percent of elections in units of fewer than 50 employees, and 64 percent of elections in units of more than 500.
The industries with the highest percentage of wins were finance, insurance, and real estate (89.7 percent), followed by health care (74.3 percent). Other sectors where unions won at least 50 percent of the elections in which they participated included services (72.9 percent), transportation, communications, and utilities (70.8 percent), construction (66.2 percent), and retail (54.7 percent). Unions won less than 50 percent in wholesale (48.9 percent), communications (48 percent), mining (47.4 percent), and manufacturing (46.5 percent).
Representation elections by union affiliation also generally increased. Unions affiliated with the AFL-CIO won 64.5 percent of representation elections in 2008 compared with 59.5 percent in 2007. Unions in the Change to Win federation won 61.3 percent of the elections they participated in 2008. In 2007, the Change to Win federation won 52.4 percent of their representation elections. The International Brotherhood of Teamsters (IBT) won 58.6 percent of the elections in 2008, up from 48.8 percent in 2007.
Notably, these NLRB statistics do not reflect the full extent of organizing by labor unions. Many unions organize through check-card recognition, neutrality agreements, and methods other than NLRB-run, secret ballot elections. These statistics, as well as the possibility that the Employee Free Choice Act may still become law, should encourage all non-union employers to review and revise workplace policies related to union organizing and monitor their workplaces for potential union organizing efforts.
*Patrick J. Hoban practices in all areas of labor and employment law, with a focus on private and public sector labor law. For more information on NLRB statistics or any other labor or employment issue, contact Pat at 216.696.4441 or pjh@zrlaw.com.
Discrimination claims based on race, retaliation, sex, age, disability and other reasons filed from fiscal year 2007 to 2008 with the Equal Opportunity Commission (“EEOC”) rose 15% from 82, 792 claims to 95,402 claims. This is the highest number of claims ever recorded in the 40+ year history of the EEOC. So, why all the new discrimination claims?
In short, discrimination claims tend to rise in tough economic times because more people lose their jobs and may become economically desperate. Tough economic times also can lead to poor communication by employers with their employees in the workplace. When employees are part of a layoff, termination, reduction in hours, or other employment decision they may not know why their employer made such a decision. If employees are left to guess as to why their employer made a certain decision, they may be more inclined to file a discrimination claim. Therefore, it is imperative that employers communicate to their employees the reasons for the particular decision.
Employers should prepare for even more discrimination claims in fiscal year 2009. According to one spokesman from the EEOC, job bias claims may rise to more than 100,000 claims in fiscal year 2009.
Age discrimination and retaliation claims saw the biggest rise in fiscal year 2008. Age discrimination claims rose 28.7% from 19,103 to 24,582 claims. Retaliation claims rose 22.6% from 26,663 to 32,690 claims.
These statistics emphasize that employers must maintain vigilant in their approach in understanding complying with employment laws.
*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 discrimination or any other labor or employment issue, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
Recently, President Barack Obama signed the Lilly Ledbetter Fair Pay Act into law in front of a crowd of onlookers. The Act overturns the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co, 550 U.S. 618 (2007), which held that employees were required to file pay discrimination lawsuits against their employers within 180 or 300 days of an employer’s initial discriminatory compensation decision.
Ledbetter alleged that she worked at Goodyear for 19 years before discovering that Goodyear paid her significantly less than her male counterparts with the same or less experience. She filed a charge when she discovered the discriminatory pay decision of her employer. Ledbetter argued that each check she received while employed constituted a new act of discrimination, which reinitiated the 180-day statutory filing period. The U.S. Supreme Court, in a 5-4 decision, found Ledbetter’s argument unpersuasive.
The Court held that her complaint had to be filed within 180 days of the initial compensation decision by Goodyear to pay her less than here male counterparts, even if she did not know of the decision until 19 years later. The Court’s decision meant that the 180-day statute of limitations for filing a charge of discrimination began on the date the employer made the compensation decision, not on the date of the most recent paycheck. This decision precluded lawsuits by plaintiffs who alleged ongoing pay discrimination but did not discover it until years later.
The Lilly Ledbetter Fair Pay Act overturns Ledbetter and amends Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the American with Disabilities Act (“ADA”) and the Rehabilitation Act to clarify at which point in time discriminatory actions qualify as an “unlawful employment practice.” According to the Lilly Ledbetter Fair Pay Act, unlawful conduct occurs when:
Further, not only can paychecks represent new acts of discrimination, but the Act indicates that any type of compensation which is based on a discriminatory act constitutes an act of discrimination. For example, pension payments and 401(k) distributions based on an employee’s compensation may constitute separate acts of discrimination.
Audit Current Pay Documentation Practices: Employers should audit their compensation practices to determine whether sufficient documentation exists to support compensation decisions. Employers will need performance-based specifics underlying such decisions to defend wage disparity claims.
Develop Specific Criteria for Compensation Decisions: Employers should develop objective, measurable guidelines for compensation decisions and apply those guidelines consistently and uniformly within job classifications, work, groups, departments or business units.
Review Compensation Decisions: Employers should create a process to ensure that managers and supervisors do not have unfettered discretion when making compensation decisions. Rather, employers should consider adopting a review system to ensure rigorous scrutiny of compensation decisions similar to those employers already use when considering terminations, discipline, or other adverse actions.
Revise Document Retention Practices: Employers should review their current document retention policies to determine how long they maintain documentation regarding compensation decisions. In the post-Ledbetter world, employers likely will need to retain such information for as long as the employee receives any form of payments from the employer or any of its benefit plans (e.g., 401(k), etc.). Employers may need to consider electronic archiving given the voluminous nature of pay-related records.
Train Supervisors and Managers: Employers should train all supervisors and managers regarding any post-Ledbetter policy modifications to ensure that they understand those policies and, most importantly, the need to support objectively all compensation decisions.
Conduct Periodic Statistical Analysis of Compensation Data: Employers should analyze compensation data to determine if any statistical disparities exist across gender, race and ethnic lines. Once identified, an employer can make appropriate adjustments to eliminate any unexplained disparities.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience defending employers involved in individual, class and collective employment litigation. For more information about the Fair Pay Act or any other employment or labor issue, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
- 2008 Unions Win Highest Rate Ever
- Discrimination Claims Rise To Highest Levels Ever
- President Obama Signs Lilly Ledbetter Fair Pay Act Into Law
- U.S. Supreme Court Holds That Union Nonmembers Can Be Charged a Fee for National Litigation Expenses
- Court Holds: Ohio Law Retaliation Based Claims Broader In Scope Than Under Federal Law
- Z&R SHORTS
2008 Unions Win Highest Rate Ever
By Patrick J. Hoban*According to National Labor Relations Board (“NLRB”) data, unions won 66.8 percent of representation elections conducted by the NLRB in 2008. This figure represents the highest win rate since 1955 when unions won 67.6 percent of the elections in which they participated. The 2008 union election win rate is a 6.4 percent increase over 2007 and represents an 8.4 percent increase over 2004.
The number of voters eligible to participate in the elections also increased from 102,494 in 2007 to 108,587 in 2008. In 2008, unions organized 70,511 workers through NLRB elections, up from 58,260 in 2007.
Unions had the greater organizing success among both small and large collective bargaining units. Unions won 69.3 percent of elections in units of fewer than 50 employees, and 64 percent of elections in units of more than 500.
The industries with the highest percentage of wins were finance, insurance, and real estate (89.7 percent), followed by health care (74.3 percent). Other sectors where unions won at least 50 percent of the elections in which they participated included services (72.9 percent), transportation, communications, and utilities (70.8 percent), construction (66.2 percent), and retail (54.7 percent). Unions won less than 50 percent in wholesale (48.9 percent), communications (48 percent), mining (47.4 percent), and manufacturing (46.5 percent).
Representation elections by union affiliation also generally increased. Unions affiliated with the AFL-CIO won 64.5 percent of representation elections in 2008 compared with 59.5 percent in 2007. Unions in the Change to Win federation won 61.3 percent of the elections they participated in 2008. In 2007, the Change to Win federation won 52.4 percent of their representation elections. The International Brotherhood of Teamsters (IBT) won 58.6 percent of the elections in 2008, up from 48.8 percent in 2007.
Notably, these NLRB statistics do not reflect the full extent of organizing by labor unions. Many unions organize through check-card recognition, neutrality agreements, and methods other than NLRB-run, secret ballot elections. These statistics, as well as the possibility that the Employee Free Choice Act may still become law, should encourage all non-union employers to review and revise workplace policies related to union organizing and monitor their workplaces for potential union organizing efforts.
*Patrick J. Hoban practices in all areas of labor and employment law, with a focus on private and public sector labor law. For more information on NLRB statistics or any other labor or employment issue, contact Pat at 216.696.4441 or pjh@zrlaw.com.
Discrimination Claims Rise To Highest Levels Ever
By Michele L. Jakubs*Discrimination claims based on race, retaliation, sex, age, disability and other reasons filed from fiscal year 2007 to 2008 with the Equal Opportunity Commission (“EEOC”) rose 15% from 82, 792 claims to 95,402 claims. This is the highest number of claims ever recorded in the 40+ year history of the EEOC. So, why all the new discrimination claims?
In short, discrimination claims tend to rise in tough economic times because more people lose their jobs and may become economically desperate. Tough economic times also can lead to poor communication by employers with their employees in the workplace. When employees are part of a layoff, termination, reduction in hours, or other employment decision they may not know why their employer made such a decision. If employees are left to guess as to why their employer made a certain decision, they may be more inclined to file a discrimination claim. Therefore, it is imperative that employers communicate to their employees the reasons for the particular decision.
Employers should prepare for even more discrimination claims in fiscal year 2009. According to one spokesman from the EEOC, job bias claims may rise to more than 100,000 claims in fiscal year 2009.
Age discrimination and retaliation claims saw the biggest rise in fiscal year 2008. Age discrimination claims rose 28.7% from 19,103 to 24,582 claims. Retaliation claims rose 22.6% from 26,663 to 32,690 claims.
These statistics emphasize that employers must maintain vigilant in their approach in understanding complying with employment laws.
COMPLAINTS FILED ANNUALLY WITH EEOC
|
|||
| Category | FY 2007 | FY 2008 | Percent Change |
| Total Charges | 82,792 | 95,402 | 15.2% |
| Race | 30,510 | 33,937 | 11.2% |
| Retaliation | 26,663 | 32,690 | 22.6% |
| Sex | 24,826 | 28,372 | 14.3% |
| Age | 19,103 | 24,582 | 28.7% |
| Disability | 17,734 | 19,453 | 9.7% |
| National Origin | 9,396 | 10,601 | 12.8% |
| Religion | 2,880 | 3,273 | 13.6% |
| Equal Pay Act | 818 | 954 | 16.6% |
| Source: Equal Employment Opportunity Commission (Complaints can be filed in multiple categories.) | |||
*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 discrimination or any other labor or employment issue, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
President Obama Signs Lilly Ledbetter Fair Pay Act Into Law
By Stephen S. Zashin*Recently, President Barack Obama signed the Lilly Ledbetter Fair Pay Act into law in front of a crowd of onlookers. The Act overturns the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co, 550 U.S. 618 (2007), which held that employees were required to file pay discrimination lawsuits against their employers within 180 or 300 days of an employer’s initial discriminatory compensation decision.
Ledbetter alleged that she worked at Goodyear for 19 years before discovering that Goodyear paid her significantly less than her male counterparts with the same or less experience. She filed a charge when she discovered the discriminatory pay decision of her employer. Ledbetter argued that each check she received while employed constituted a new act of discrimination, which reinitiated the 180-day statutory filing period. The U.S. Supreme Court, in a 5-4 decision, found Ledbetter’s argument unpersuasive.
The Court held that her complaint had to be filed within 180 days of the initial compensation decision by Goodyear to pay her less than here male counterparts, even if she did not know of the decision until 19 years later. The Court’s decision meant that the 180-day statute of limitations for filing a charge of discrimination began on the date the employer made the compensation decision, not on the date of the most recent paycheck. This decision precluded lawsuits by plaintiffs who alleged ongoing pay discrimination but did not discover it until years later.
The Lilly Ledbetter Fair Pay Act overturns Ledbetter and amends Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the American with Disabilities Act (“ADA”) and the Rehabilitation Act to clarify at which point in time discriminatory actions qualify as an “unlawful employment practice.” According to the Lilly Ledbetter Fair Pay Act, unlawful conduct occurs when:
- an employer adopts a discriminatory compensation decision or other practice;
- an individual becomes subject to the decision or practice; or
- an individual is affected by application of the decision or practice, including each time compensation is paid. (Emphasis added).
Further, not only can paychecks represent new acts of discrimination, but the Act indicates that any type of compensation which is based on a discriminatory act constitutes an act of discrimination. For example, pension payments and 401(k) distributions based on an employee’s compensation may constitute separate acts of discrimination.
What Employers Should Do Now
Not surprisingly, the broadened statute of limitations for wage disparity claims will prompt increased litigation. Employers wishing to minimize the risks of liability should consider the following:Audit Current Pay Documentation Practices: Employers should audit their compensation practices to determine whether sufficient documentation exists to support compensation decisions. Employers will need performance-based specifics underlying such decisions to defend wage disparity claims.
Develop Specific Criteria for Compensation Decisions: Employers should develop objective, measurable guidelines for compensation decisions and apply those guidelines consistently and uniformly within job classifications, work, groups, departments or business units.
Review Compensation Decisions: Employers should create a process to ensure that managers and supervisors do not have unfettered discretion when making compensation decisions. Rather, employers should consider adopting a review system to ensure rigorous scrutiny of compensation decisions similar to those employers already use when considering terminations, discipline, or other adverse actions.
Revise Document Retention Practices: Employers should review their current document retention policies to determine how long they maintain documentation regarding compensation decisions. In the post-Ledbetter world, employers likely will need to retain such information for as long as the employee receives any form of payments from the employer or any of its benefit plans (e.g., 401(k), etc.). Employers may need to consider electronic archiving given the voluminous nature of pay-related records.
Train Supervisors and Managers: Employers should train all supervisors and managers regarding any post-Ledbetter policy modifications to ensure that they understand those policies and, most importantly, the need to support objectively all compensation decisions.
Conduct Periodic Statistical Analysis of Compensation Data: Employers should analyze compensation data to determine if any statistical disparities exist across gender, race and ethnic lines. Once identified, an employer can make appropriate adjustments to eliminate any unexplained disparities.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience defending employers involved in individual, class and collective employment litigation. For more information about the Fair Pay Act or any other employment or labor issue, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
U.S. Supreme Court Holds That Union Nonmembers Can Be Charged a Fee for National Litigation Expenses
By George S. Crisci*In Locke v. Karass, the U.S. Supreme Court held that the First Amendment permits a local union to charge nonmembers for national litigation expenses so long as (1) the subject matter of the litigation bears an appropriate relation to collective bargaining and (2) the charge is reciprocal in nature (i.e., the local union’s payment to the national affiliate is for “services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.”)
The state of Maine requires government employees to pay a service fee to the local union that acts as their exclusive bargaining agent even if those employees disagree with, and do not belong to, the union. The Maine State Employees Association (“the local”) is the exclusive bargaining agent for certain executive branch employees. A collective-bargaining agreement between Maine and the local requires nonmember employees whom the union represents to pay the local a “service fee.” The service fee includes a charge that represents the affiliation fee the local pays to its national union, the Service Employees International Union (“the national”).
The portion of the service fee at issue was the amount that helps the national union pay for litigation activities, some of which do not directly benefit the local union but rather directly benefit other locals or the national organization itself. The petitioners, i.e., nonmembers of the local, argued that the First Amendment prohibits charging them for any portion of the service fee that represents “national litigation,” that does not directly benefit the local.
The issue before the Court is whether the First Amendment permits a local union to charge nonmembers a fee to help pay for national litigation activities, some of which do not directly benefit the local union but rather directly benefit other locals or the national organization itself.
The U.S. Supreme Court reasoned that the same standard should apply to national litigation expenses as to other national expenses. In particular, the Court found no basis for holding that national social activities, national convention activities, and activities involved in producing the nonpolitical portions of national union publications all are chargeable but litigation activities are not. The Court stated that a local nonmember can benefit from national litigation aimed at helping other locals if the national or those other locals will similarly contribute to the cost of litigation on the local union’s behalf should the need arise.
This case demonstrates that employers must understand the subtle nuances in the law in their administration of collective bargaining agreements.
*George S. Crisci, an OSBA Certified Specialist in Labor and Employment Law. George represents employers in all facets of labor and employment law, in both the public and private sector. For more information concerning any labor or employment issue, please contact George at 216.696.4441 or gsc@zrlaw.com.
Court Holds: Ohio Law Retaliation Based Claims Broader In Scope Than Under Federal Law
By Lois A. GruhinAn Ohio Court of Appeals recently held in Hughes v. Miller that Ohio law is broader in scope than Title VII in terms of who has the obligation to refrain from retaliation. In particular, the court determined that no “person” may retaliate under Ohio law, while an “employer” must refrain from retaliation under 42 U.S.C. 2000e-3(a). The court held that a retaliation claim asserted by an employee against a co-employee is perfectly actionable under Ohio law, even though it is not under Title VII.
In Hughes, the plaintiff and defendant both worked as Cuyahoga Community College (“Tri-C”) police officers. The female defendant initially filed an internal complaint with Tri-C alleging that the male plaintiff committed various acts of sexual harassment against her. Tri-C conducted an internal investigation and disciplined the plaintiff. The plaintiff subsequently filed a lawsuit against defendant accusing her of defamation. The defendant filed a counterclaim against the plaintiff and alleged that plaintiff filed his complaint against her in retaliation for her filing the internal complaint.
The trial court dismissed the defendant’s counterclaim under Rule 12(B)(6) for failing to state a claim. On appeal, the issue became whether the defendant’s counterclaim sufficiently set forth a claim for retaliation for participation in a “protected activity” in violation of R.C. 4112.02(I). The defendant argued that her act of filing an internal complaint against Hughes was a “protected activity.”
Under Ohio law, the court held that an employee may file a claim against a co-employee for retaliation if: (1) the claimant engaged in protected activity; (2) claimant’s engagement in the protected activity was known to the opposing party; (3) the opposing party thereafter took adverse action against the claimant; and (4) there exists a causal connection between the protected activity and the adverse action. The court determined that the defendant sufficiently met the last three elements of the prima facie case. The court then looked for guidance from the United States Supreme Court (“USSC”) and Ohio Supreme Court in determining if the defendant’s claim was a “protected activity” under element one.
Ohio’s Supreme Court cited Crawford v. Metro. Govt. of Nashville and Davidson Cty., Tennessee, in which the USSC court held that an employee’s filing of an internal complaint with an employer constitutes “protected activity” under the opposition clause of Title VII’s anti-retaliation provision, protecting employees who disclose sexual harassment in such a manner from retaliatory conduct by the employer. In particular, the Crawford Court held that protection under the “opposition clause” of anti-retaliation statutes is not limited to cases where an employee initiates an internal complaint protesting sexual harassment. The Crawford Court found that the “opposition clause” extends protection to an employee who opposes sexual discrimination stemming from sexual harassment, not by initiating a complaint, but by answering questions posed to him or her during an employer’s internal investigation.
The court also cited Ohio Supreme Court case precedent, including Ohio Civ. Right Comm. v. Akron Metro. Hous. Auth., which held that Ohio law proscribes certain unlawful discriminatory practices by employers who fail to take corrective action in response to an employee’s opposition to a co-employee’s sexual harassment. The court also cited Ohio Civ. Rights Comm. v. Lysyj which held that R.C. 4112.02(G) and 4112.01(I) are remedial statutes, which are to be construed “liberally in order to effectuate the legislative purpose and fundamental policy implicit in their enactment, and to assure that the rights granted by the statutes are not defeated by overly restrictive interpretation.” The court finally held that the defendant’s counterclaim against the plaintiff was a “protected activity” under Ohio law, even though it would have been dismissed under federal law.
The decision in Hughes v. Miller highlights the subtle but profound distinction between Ohio and federal law retaliation based claims. Employers must understand that retaliation based claims under Ohio law are broader and more liberally construed than those under federal law.
Z&R SHORTS
George Crisci and Rick Hanrahan will present on developments in SERB decisions and COBRA respectively at the Cleveland Metropolitan Bar Association’s 9th Annual Labor and Employment Law Conference on June 25 and 26. Please contact CMBA at (216) 696-2404 for details and to attend.
Summer Is Near
Summer is quickly approaching and the weather is improving by the day making it the ideal time for employers to review their dress code and attendance policies with employees. Employers hiring seasonal help for the summer (e.g., students) also need to consider the impact the Fair Labor Standards Act has on such hiring including potential seasonal and recreational exemptions and the youth minimum wage.
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