*By George S. Crisci
In a decision released yesterday, the United States Supreme Court found
that the First Amendment’s Petition Clause does not protect a public
employee’s filing of a grievance or other legal proceedings against an
employer unless the grievance involves a matter of public concern. See
Borough of Duryea, Pennsylvania, et al. v Guarnieri, No. 09-1476, 564
U.S. ___ (2011).
The chief of police, Charles Guarnieri (“Guarnieri”), filed a
union grievance challenging his termination. An arbitrator awarded
reinstatement. After Guarnieri returned to work, the Borough of Duryea
(“Duryea”) implemented several directives instructing him on how to
carry out his position. One directive prohibited Guarnieri from working
overtime without the council’s “express permission.” Guarnieri
believed these directives were too restrictive and he filed a union
grievance. The arbitrator ordered Duryea to modify or withdraw some of
the directives.
Guarnieri then filed suit against Duryea for violation of his
civil rights under 42 U.S.C. § 1983. Guarnieri claimed that he was
subject to retaliation when Duryea instituted the directives upon his
reinstatement. Guarnieri also added a claim for denial of overtime to
his suit.
The district court instructed the jury that the lawsuit and
union grievances were “protected activity under the constitution,” and
that the jury could find Duryea liable if there was an adequate
connection between the protected activity and the alleged retaliation.
The jury returned a verdict in favor of Guarnieri, awarding him over
$90,000 in both compensatory and punitive damages, along with
attorney’s fees.
Duryea appealed the verdict arguing that Guarnieri’s
grievances and lawsuit did not address matters of public concern. The
Third Circuit Court of Appeals upheld the verdict even though
Guarnieri’s petition was solely a matter of private concern.
The United States Supreme Court held that the Third Circuit
applied a more generous rule and remanded the case. When a public
employee sues a government employer under the First Amendment’s Speech
Clause, the employee must show that he or she spoke as a citizen on a
matter of public concern. This test, known as the Connick-Pickering
test, also involves a balancing of the First Amendment interests of
the employee against the interest of the State in promoting efficiency.
While this case involved the Petition Clause, and not the
Speech Clause, the Court reasoned that the two are closely related and
there was no cause for divergence in this case. Therefore, the lower
courts should have applied the Connick-Pickering analysis to
Guarnieri’s Petition Clause claims. As a result, when a public
employee petitions on a matter solely of private concern, the employee
cannot pursue his First Amendment rights.
While this decision garnered far less attention than the Dukes v. Wal-Mart ruling also issued yesterday, Duryea
promises to have a significant impact on public employees. A
government employer’s allegedly retaliatory actions against an employee
do not give rise to liability under the Petition Clause unless the
employee’s petition relates to a matter of public concern. The holding
requires courts to conduct a Connick-Pickering analysis for future Petition Clause claims brought by public employees.
*George S. Crisci, an OSBA Certified
Specialist in Labor and Employment Law, represents public employers in
negotiations, grievances, arbitrations and practices in all areas of
public and private employment and labor relations. For more information
about this decision or labor law, please contact George (gsc@zrlaw.com) at 216.696.4441.
Tuesday, June 21, 2011
Monday, June 20, 2011
So Long, Farewell: Does the Supreme Court's Decision In Wal-Mart Stores, Inc. V. Dukes Spell the End of Employment Class Actions?
*By B. Jason Rossiter
In a landmark decision, the United States Supreme Court rejected an attempt by a number of Wal-Mart employees to pursue a nationwide class action on behalf of all female Wal-Mart employees, based on generic accusations that Wal-Mart maintained a company-wide policy of sex discrimination.
To bring any type of class action, one of the elements that a plaintiff must prove is – that there is some common issue of law or fact in common among all of the members of the proposed class. In Wal-Mart Stores, Inc. v. Dukes, decided on June 20, 2011, the Supreme Court held that the female plaintiffs had to establish something more than merely "their sex and this lawsuit" in order to pursue a class-action. Instead, they must offer "significant proof" of a "specific" employment practice that affected everyone across the company and led to sex-based discrimination. In other words, there must be "some glue holding the alleged reasons for all those [nationwide employment] decisions together."
In Dukes, the Supreme Court held that the plaintiffs' evidence was not sufficient to show that Wal-Mart used a specific identifiable employment practice on a nationwide basis that resulted in illegal discrimination:
As a result of this decision, are ambiguous, aggregate "nationwide" employee class actions possible after Dukes? Probably not. Dukes makes it clear that employees who wish to join together and pursue a class action cannot rely only on extrapolations from statistics, collections of anecdotal evidence, or expert testimony about corporate "culture" to meet Rule 23's "commonality" requirement. Instead, they must point to concrete, specific, identifiable employment policies or practices that truly affected the purported class and that gave rise to the discrimination in question. In other words, they must prove that they have something else in common apart from their protected status and their desire to sue their common employer.
*B. Jason Rossiter, has extensive experience in all aspects of workplace law, including defending employers in class action suits. For more information about class or collective litigation, please contact Zashin & Rich at 216.696.4441.
In a landmark decision, the United States Supreme Court rejected an attempt by a number of Wal-Mart employees to pursue a nationwide class action on behalf of all female Wal-Mart employees, based on generic accusations that Wal-Mart maintained a company-wide policy of sex discrimination.
To bring any type of class action, one of the elements that a plaintiff must prove is – that there is some common issue of law or fact in common among all of the members of the proposed class. In Wal-Mart Stores, Inc. v. Dukes, decided on June 20, 2011, the Supreme Court held that the female plaintiffs had to establish something more than merely "their sex and this lawsuit" in order to pursue a class-action. Instead, they must offer "significant proof" of a "specific" employment practice that affected everyone across the company and led to sex-based discrimination. In other words, there must be "some glue holding the alleged reasons for all those [nationwide employment] decisions together."
In Dukes, the Supreme Court held that the plaintiffs' evidence was not sufficient to show that Wal-Mart used a specific identifiable employment practice on a nationwide basis that resulted in illegal discrimination:
The plaintiffs offered expert testimony that Wal-Mart supposedly employed discriminatory stereotypes in its decision-making. The Supreme Court held that this testimony was "worlds away" from being "significant proof" of any specific company-wide practice, because the expert admitted he was unable to explain what percentage of Wal-Mart's employment decisions across the country "might be determined by stereotyped thinking... If [the expert] admittedly has no answer to that question, we can safely disregard what he has to say."Lastly, the Supreme Court held that because the plaintiffs sought individualized awards of back pay, it was improper for them to seek class certification without following the procedures of Federal Rule of Civil Procedure 23(b)(3), which requires that each member of the class receive the chance to opt out of the class, requires the plaintiffs to show that their common issues predominate over any individual questions, and also requires the plaintiffs show that the class action mechanism is the superior method of resolving the particular dispute.
The plaintiffs pointed to the fact that Wal-Mart had a policy of giving discretion in pay and promotions decisions to local decision-makers. The Supreme Court said that this was "very common" and "presumptively reasonable." Giving decision-making discretion to local managers "should itself raise no inference of discriminatory conduct," absent proof of "a common mode of exercising discretion that pervades the entire company," and the plaintiffs offered no such proof.
The plaintiffs offered statistical evidence showing disparities in pay between women and men. The Supreme Court rejected this as well because the statistics were offered in a vacuum instead of being linked to a "specific employment practice" that created the alleged disparity.
Lastly, the plaintiffs offered anecdotal evidence of discrimination - individual examples of allegedly discriminatory events and statements. The Supreme Court held that this evidence was also irrelevant because it was divorced from a single unifying employment practice, and was also "too weak to raise any inference that all the individual, discretionary personnel decisions are discriminatory."
As a result of this decision, are ambiguous, aggregate "nationwide" employee class actions possible after Dukes? Probably not. Dukes makes it clear that employees who wish to join together and pursue a class action cannot rely only on extrapolations from statistics, collections of anecdotal evidence, or expert testimony about corporate "culture" to meet Rule 23's "commonality" requirement. Instead, they must point to concrete, specific, identifiable employment policies or practices that truly affected the purported class and that gave rise to the discrimination in question. In other words, they must prove that they have something else in common apart from their protected status and their desire to sue their common employer.
*B. Jason Rossiter, has extensive experience in all aspects of workplace law, including defending employers in class action suits. For more information about class or collective litigation, please contact Zashin & Rich at 216.696.4441.
Thursday, June 9, 2011
Ohio Supreme Court Expands Workers' Compensation Retaliation Claims To Include Employees That Have Not Yet Filed or Pursued Workers' Compensation Benefits
*By Scott Coghlan
On June 9, 2011, The Ohio Supreme Court decided Sutton v. Tomco Machining, Inc., 2011-Ohio-2723. In this case, the Ohio Supreme Court recognized a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers a retaliatory employment action after suffering an injury on the job but before the employee files a workers’ compensation claim or pursues such benefits.
Ohio Revised Code Section 4123.90 prohibits employers from retaliating against employees that have filed or pursued workers’ compensation claims. The statute only provides remedies to an injured employee who files a workers’ compensation claim prior to the employer engaging in the alleged retaliatory conduct. In Sutton, the employer fired the injured employee within one hour of reporting his injury to the president of the company but prior to his filing or pursuing a workers’ compensation claim. As a result, the injured employee was not protected by O.R.C. Section 4123.90.
Holding that the legislature did not intend to leave a “gap” in protection during which time employers could retaliate against injured employees, the Ohio Supreme Court determined that public policy prohibits employers from retaliating against injured employees that have yet to file for or pursue workers’ compensation benefits. The Court stated, however, that no presumption or retaliation arises from the fact that an employee is discharged soon after an injury. Instead, the injured employee must prove by a preponderance of the evidence the retaliatory nature of the discharge and its nexus with workers’ compensation. The Court also limited the remedies available to those provided in O.R.C. Section 4123.90. Such remedies are primarily limited to reinstatement with back pay in the event of termination or lost wages in the event of demotion or other retaliatory conduct along with reasonable attorneys’ fees.
Injured workers are permitted to file for workers’ compensation benefits within two years of the date of injury. As a result, the Sutton decision changes the landscape for employers when terminating an employee who was injured at work but has not pursued workers’ compensation benefits. Moreover, the court failed to state whether the written notice requirements contained in O.R.C. Section 4123.90 apply to public policy workers’ compensation retaliation claims.
If you any questions regarding the Sutton decision or its impact on managing your workforce please contact us.
*Scott Coghlan, the chair of the firms’ Workers’ Compensation Group, has extensive experience in all aspects of safety and health matters and workers’ compensation law. For more information about retaliation claims, please contact Scott at 216.696.4441 or sc@zrlaw.com.
On June 9, 2011, The Ohio Supreme Court decided Sutton v. Tomco Machining, Inc., 2011-Ohio-2723. In this case, the Ohio Supreme Court recognized a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers a retaliatory employment action after suffering an injury on the job but before the employee files a workers’ compensation claim or pursues such benefits.
Ohio Revised Code Section 4123.90 prohibits employers from retaliating against employees that have filed or pursued workers’ compensation claims. The statute only provides remedies to an injured employee who files a workers’ compensation claim prior to the employer engaging in the alleged retaliatory conduct. In Sutton, the employer fired the injured employee within one hour of reporting his injury to the president of the company but prior to his filing or pursuing a workers’ compensation claim. As a result, the injured employee was not protected by O.R.C. Section 4123.90.
Holding that the legislature did not intend to leave a “gap” in protection during which time employers could retaliate against injured employees, the Ohio Supreme Court determined that public policy prohibits employers from retaliating against injured employees that have yet to file for or pursue workers’ compensation benefits. The Court stated, however, that no presumption or retaliation arises from the fact that an employee is discharged soon after an injury. Instead, the injured employee must prove by a preponderance of the evidence the retaliatory nature of the discharge and its nexus with workers’ compensation. The Court also limited the remedies available to those provided in O.R.C. Section 4123.90. Such remedies are primarily limited to reinstatement with back pay in the event of termination or lost wages in the event of demotion or other retaliatory conduct along with reasonable attorneys’ fees.
Injured workers are permitted to file for workers’ compensation benefits within two years of the date of injury. As a result, the Sutton decision changes the landscape for employers when terminating an employee who was injured at work but has not pursued workers’ compensation benefits. Moreover, the court failed to state whether the written notice requirements contained in O.R.C. Section 4123.90 apply to public policy workers’ compensation retaliation claims.
If you any questions regarding the Sutton decision or its impact on managing your workforce please contact us.
*Scott Coghlan, the chair of the firms’ Workers’ Compensation Group, has extensive experience in all aspects of safety and health matters and workers’ compensation law. For more information about retaliation claims, please contact Scott at 216.696.4441 or sc@zrlaw.com.
Wednesday, May 25, 2011
The Employment and Labor Group at Zashin & Rich is now tweeting!
The law of the workplace can change rapidly, and Zashin & Rich’s tweets will keep you up to date concerning the latest developments in employment and labor law.
Follow us on Twitter @ZashinRich
Follow us on Twitter @ZashinRich
Monday, May 23, 2011
How many days has it been without an accident? The Department of Labor Launches its OSHA Recordkeeping Advisor
*By Scott Coghlan
The Department of Labor recently announced a new web based tool to help employers understand their responsibilities to report and record work-related injuries and illnesses under OSHA regulations.
The OSHA Recordkeeping Advisor helps employers determine quickly whether an injury or illness is work-related or if an exception applies, whether a work-related injury or illness needs to be recorded, and which provisions of the regulations apply when recording a work-related injury or illness. To help employers in making these determinations, the OSHA Recordkeeping Advisor relies on the employers’ responses to a series of preset questions.
The OSHA Recordkeeping Advisor is straightforward and is intended to assist employers in understanding their recordkeeping requirements. While an excellent tool, it is not all encompassing, and should not be considered a substitute for the OSHA Recordkeeping Rules 29 CFR 1904, the OSHA Recordkeeping Handbook, the OSHA Recordkeeping Related Letters of Interpretation or legal advice regarding the same. These documents as well as the new OSHA Recordkeeping Advisor can be found at www.dol.gov/elaws/OSHARecordkeeping.html. If you any questions relative OSHA recordkeeping requirements and how they apply to your company, please contact us.
*Scott Coghlan, the chair of the firms’ Workers’ Compensation Group, has extensive experience in all aspects of safety and health matters and workers’ compensation law. For more information about OSHA compliance, please contact Scott at 216.696.4441 or sc@zrlaw.com.
The Department of Labor recently announced a new web based tool to help employers understand their responsibilities to report and record work-related injuries and illnesses under OSHA regulations.
The OSHA Recordkeeping Advisor helps employers determine quickly whether an injury or illness is work-related or if an exception applies, whether a work-related injury or illness needs to be recorded, and which provisions of the regulations apply when recording a work-related injury or illness. To help employers in making these determinations, the OSHA Recordkeeping Advisor relies on the employers’ responses to a series of preset questions.
The OSHA Recordkeeping Advisor is straightforward and is intended to assist employers in understanding their recordkeeping requirements. While an excellent tool, it is not all encompassing, and should not be considered a substitute for the OSHA Recordkeeping Rules 29 CFR 1904, the OSHA Recordkeeping Handbook, the OSHA Recordkeeping Related Letters of Interpretation or legal advice regarding the same. These documents as well as the new OSHA Recordkeeping Advisor can be found at www.dol.gov/elaws/OSHARecordkeeping.html. If you any questions relative OSHA recordkeeping requirements and how they apply to your company, please contact us.
*Scott Coghlan, the chair of the firms’ Workers’ Compensation Group, has extensive experience in all aspects of safety and health matters and workers’ compensation law. For more information about OSHA compliance, please contact Scott at 216.696.4441 or sc@zrlaw.com.
Friday, April 29, 2011
Game Over: Do Employment Arbitration Agreements Spell the End of Employment Class Actions?
*By Stephen S. Zashin
In a 5-4 decision issued yesterday, the United States Supreme Court overturned a Ninth Circuit Court of Appeals decision invalidating an arbitration agreement for being unconscionable under California law. In AT&T Mobility v. Concepcion the Supreme Court found that the Federal Arbitration Act (“FAA”) preempted a California law that allowed consumers to avoid contracts in which they had waived their class action rights.
Justice Scalia, writing for the majority, stated that the country has a “liberal federal policy favoring arbitration.” He noted that the FAA was passed in 1925 in response to judges’ hostility to arbitration agreements and bans states from discriminating against arbitration. He stated that the FAA preempted the state law because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
The facts of this case centered on a commercial cell phone contract. The consumer contract contained both an agreement to arbitrate disputes and a class action waiver. Vincent and Liza Concepcion sued AT&T on behalf of themselves and others similarly situated for advertising discounted cell phones but charging sales tax -- $30.22 – on the full retail price. The company sought to compel individual arbitration pursuant to the arbitration agreement and the class action waiver the plaintiffs signed.
Despite several pro-consumer terms in the arbitration agreement, the California federal District Court (and Ninth Circuit Court of Appeals) held that the arbitration agreement was unconscionable because it precluded class actions. The District and Circuit Courts also found that the FAA did not preempt state law on this issue. The lower courts based their decisions on a California Supreme Court decision, Discover Bank v. Superior Court. In Discover Bank, the California Supreme Court found that by requiring individuals to arbitrate their small claims individually, and not allow them to join in a class agreement, the company imposed an illegal contract on the weaker party. The District and Circuit Courts held that such provision was unconscionable because the company had not shown that bilateral arbitration “adequately substituted for the deterrent effects of class actions.”
The Supreme Court overturned the lower courts explaining that arbitration “is poorly situated to the higher stakes of class litigation.” The Court found that by moving from bilateral to class arbitration, the principles of informal arbitration are sacrificed – making the arbitration slower, more costly, and “more likely to generate procedural morass than final judgment.” In effect, the Court found that it was improper to impose class arbitration when the agreement itself did not permit it.
Justice Breyer, writing for dissenters, said the majority misconstrued the history and applicability of the FAA, which Breyer stated allowed class actions to co-exist with the tenets of the FAA. Breyer feared that without the ability to join together in class-action lawsuits “small-dollar claimants” would abandon their claims stating, “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?”
Although this case dealt with a consumer cell phone contract, the Court’s decision likely impacts employment arbitration agreements. The decision reaffirms the validity of including class action waivers in agreements to arbitrate employment disputes. As a result, employers that currently have employment arbitration should consider an express class action ban based upon this case. Employers that do not have employment arbitration should consider whether to implement such a program to preclude the possibility of an employment class action.
If you have any questions about how this decision may impact your arbitration agreement or would like assistance in drafting an arbitration agreement with a class action waiver, please contact us.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor & Employment Law, has experience defending class action lawsuits and arbitrations. In addition, Stephen has drafted and implemented employment arbitration programs for some of the country’s largest employers. For more information about employment arbitration, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
In a 5-4 decision issued yesterday, the United States Supreme Court overturned a Ninth Circuit Court of Appeals decision invalidating an arbitration agreement for being unconscionable under California law. In AT&T Mobility v. Concepcion the Supreme Court found that the Federal Arbitration Act (“FAA”) preempted a California law that allowed consumers to avoid contracts in which they had waived their class action rights.
Justice Scalia, writing for the majority, stated that the country has a “liberal federal policy favoring arbitration.” He noted that the FAA was passed in 1925 in response to judges’ hostility to arbitration agreements and bans states from discriminating against arbitration. He stated that the FAA preempted the state law because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
The facts of this case centered on a commercial cell phone contract. The consumer contract contained both an agreement to arbitrate disputes and a class action waiver. Vincent and Liza Concepcion sued AT&T on behalf of themselves and others similarly situated for advertising discounted cell phones but charging sales tax -- $30.22 – on the full retail price. The company sought to compel individual arbitration pursuant to the arbitration agreement and the class action waiver the plaintiffs signed.
Despite several pro-consumer terms in the arbitration agreement, the California federal District Court (and Ninth Circuit Court of Appeals) held that the arbitration agreement was unconscionable because it precluded class actions. The District and Circuit Courts also found that the FAA did not preempt state law on this issue. The lower courts based their decisions on a California Supreme Court decision, Discover Bank v. Superior Court. In Discover Bank, the California Supreme Court found that by requiring individuals to arbitrate their small claims individually, and not allow them to join in a class agreement, the company imposed an illegal contract on the weaker party. The District and Circuit Courts held that such provision was unconscionable because the company had not shown that bilateral arbitration “adequately substituted for the deterrent effects of class actions.”
The Supreme Court overturned the lower courts explaining that arbitration “is poorly situated to the higher stakes of class litigation.” The Court found that by moving from bilateral to class arbitration, the principles of informal arbitration are sacrificed – making the arbitration slower, more costly, and “more likely to generate procedural morass than final judgment.” In effect, the Court found that it was improper to impose class arbitration when the agreement itself did not permit it.
Justice Breyer, writing for dissenters, said the majority misconstrued the history and applicability of the FAA, which Breyer stated allowed class actions to co-exist with the tenets of the FAA. Breyer feared that without the ability to join together in class-action lawsuits “small-dollar claimants” would abandon their claims stating, “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?”
Although this case dealt with a consumer cell phone contract, the Court’s decision likely impacts employment arbitration agreements. The decision reaffirms the validity of including class action waivers in agreements to arbitrate employment disputes. As a result, employers that currently have employment arbitration should consider an express class action ban based upon this case. Employers that do not have employment arbitration should consider whether to implement such a program to preclude the possibility of an employment class action.
If you have any questions about how this decision may impact your arbitration agreement or would like assistance in drafting an arbitration agreement with a class action waiver, please contact us.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor & Employment Law, has experience defending class action lawsuits and arbitrations. In addition, Stephen has drafted and implemented employment arbitration programs for some of the country’s largest employers. For more information about employment arbitration, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.
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
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