The United States Department of Labor recently published the new FMLA
regulations. The new FMLA regulations will take effect on January 16,
2009. In conjunction with the implementation of the new regulations,
the Department of Labor recently published a new FMLA poster on its
web-site which employers must display in place of the current FMLA
poster. All covered employers must display the poster beginning on
January 16, 2009. The following is a link to the new poster:
http://www.dol.gov/esa/whd/fmla/finalrule/FMLAPoster.pdf
As a reminder, Zashin & Rich Co., L.P.A. will hold a free
seminar addressing the new FMLA regulations. While many sessions have
closed, there are still a few available seats at a fourth session
scheduled for January 12, 2009, beginning at 9:30 a.m. at the offices of
Zashin & Rich.
To receive more information, please contact Heather Hatfield (hlh@zrlaw.com) at 216.696.4441.
Monday, December 15, 2008
Friday, December 12, 2008
Public Employers Must Use Reasonable Efforts To Recover Improperly Deleted E-mails
*By George S. Crisci, Esq.*
In State, ex rel. Toledo Blade Co. v. Seneca County Board of Commissioners, 2008-Ohio-6253 (Dec. 9, 2008), the Ohio Supreme Court addressed what it called a “novel public records claim:” a request to recover and inspect improperly-deleted e-mails. The Court held that the public body had to “make reasonable efforts to recover, at its expense, the requested deleted e-mails and to make them promptly available for inspection.” The Court added, however, that the public body did not have to recover e-mails properly deleted under Ohio’s Public Records Act and the public body’s records retention policy.
In this case, a newspaper made a public records request for all e-mails among County Commissioners. The newspaper suspected that the Commissioners had conducted improper private discussions and deliberations on approving a plan via e-mail communications.
In its response, the public body did not produce any e-mails from one Commissioner for a critical seven-month period, did not produce any e-mails from the inbox or sent-messages folder from another Commissioner (who admitted that he only had begun saving e-mails involving County business), did not provide any e-mails for an entire year from a third Commissioner and provided e-mails from a fourth Commissioner for which there were “substantial gaps” between the dates of e-mails. The public body later found and offered to provide additional e-mails that it discovered in a previously unknown hidden archive on one Commissioner’s computer. The public body also explained its methods for retrieving e-mails from the computers’ hard drives and indicated that retrieval of deleted e-mails would require “very expensive forensic tools.”
The County’s records retention and disposition schedule required that it retain e-mails having a “significant administrative, fiscal, legal, or historic value.” However, the policy permitted the deletion of e-mails that had no such value. The policy granted the discretion to the individual computer user.
Dissatisfied with the public body’s response, the newspaper filed a mandamus action before the Ohio Supreme Court. The newspaper demanded: (1) responsive public records available to [the public body] promptly and without delay and to do so at all time for future requests, (2) take the necessary steps to recover the content of all requested records that has been deleted and report on the steps taken, and (3) make each of the recovered e-mails promptly available for inspection and copying.”
The Court granted some of the newspaper’s demands and held that the public body had to take reasonable steps to recover, at its own expense, unlawfully deleted e-mails. The Court articulated the following “appropriate factors for determining when a public office has a duty . . . to recover the content of deleted e-mails and provide access to them:”
This decision reinforces what public bodies already should do: (1) have a records retention and disposition policy that includes the retention of electronic data; (2) ensure that all officials and employees are aware of, and comply with, the records retention and disposition policy; and (3) understand that record retention and disposition policies also apply to e-mails. Future violations could have serious financial consequences for the public body, not only for the cost of a forensic recovery of deleted e-mails, but the potential civil fines from unlawfully destroying public records and engaging in spoliation of evidence.
*George S. Crisci is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in all aspects of public sector labor, employment and public records issues. For more information about public records, please contact George at 216.696.4441 or gsc@zrlaw.com.
In State, ex rel. Toledo Blade Co. v. Seneca County Board of Commissioners, 2008-Ohio-6253 (Dec. 9, 2008), the Ohio Supreme Court addressed what it called a “novel public records claim:” a request to recover and inspect improperly-deleted e-mails. The Court held that the public body had to “make reasonable efforts to recover, at its expense, the requested deleted e-mails and to make them promptly available for inspection.” The Court added, however, that the public body did not have to recover e-mails properly deleted under Ohio’s Public Records Act and the public body’s records retention policy.
In this case, a newspaper made a public records request for all e-mails among County Commissioners. The newspaper suspected that the Commissioners had conducted improper private discussions and deliberations on approving a plan via e-mail communications.
In its response, the public body did not produce any e-mails from one Commissioner for a critical seven-month period, did not produce any e-mails from the inbox or sent-messages folder from another Commissioner (who admitted that he only had begun saving e-mails involving County business), did not provide any e-mails for an entire year from a third Commissioner and provided e-mails from a fourth Commissioner for which there were “substantial gaps” between the dates of e-mails. The public body later found and offered to provide additional e-mails that it discovered in a previously unknown hidden archive on one Commissioner’s computer. The public body also explained its methods for retrieving e-mails from the computers’ hard drives and indicated that retrieval of deleted e-mails would require “very expensive forensic tools.”
The County’s records retention and disposition schedule required that it retain e-mails having a “significant administrative, fiscal, legal, or historic value.” However, the policy permitted the deletion of e-mails that had no such value. The policy granted the discretion to the individual computer user.
Dissatisfied with the public body’s response, the newspaper filed a mandamus action before the Ohio Supreme Court. The newspaper demanded: (1) responsive public records available to [the public body] promptly and without delay and to do so at all time for future requests, (2) take the necessary steps to recover the content of all requested records that has been deleted and report on the steps taken, and (3) make each of the recovered e-mails promptly available for inspection and copying.”
The Court granted some of the newspaper’s demands and held that the public body had to take reasonable steps to recover, at its own expense, unlawfully deleted e-mails. The Court articulated the following “appropriate factors for determining when a public office has a duty . . . to recover the content of deleted e-mails and provide access to them:”
(1) Were the deleted e-mails destroyed?
Although acknowledging that “[t]here is no duty ... to create records that no longer exist,” the Court noted that “the mere deletion of some of the e-mails by the commissioners did not necessarily destroy them.” Rather, [a]s long as these e-mails are on the hard drives of the commissioners’ computers, they do not lose their status as public records."
(2) Were the e-mails deleted in violation of the County’s records retention and disposition policy?
The Court held that newspaper had to make a prima facie showing of a violation, which the newspaper satisfied. The “substantial gaps in the responsive e-mails . . . . raise the reasonable inference that the e-mails were deleted in violation of the county’s records retention and disposition schedule; it defies logic that all public-office e-mail during these lengthy periods lacked significant administrative, fiscal, legal or historic value.” The Commissioners failed to submit any affidavits specifying that the deleted e-mails did not meet the retention requirements. The public body unsuccessfully argued that no violation occurred because the policy left it up to the individual computer user to determine whether to save an e-mail. The Court held that a construction of the Public Records Act “that vests individual government employees with unreviewable authority to delete work-related e-mails is unreasonable because it would authorize the unfettered destruction of public records.” The Court also rejected the public body’s remaining argument –that the newspaper already received identical copies of the deleted e-mails.
(3) Is there evidence that recovery of the deleted e-mails may be successful?
The newspaper “introduced sufficient evidence [primarily through an affidavit of a computer expert] that recovery of the deleted e-mails may be successful. That is all that is required here, when the evidence raises the inference that the commissioners deleted e-mails in contravention of an applicable records retention and disposition schedule.”
(4) The Court may order that the public body attempt recovery even if the cost of recovery services may be expensive.
The Court reiterated long-standing precedent that complaints of too much time, expense or disruption are not excuses “to evade the public’s right to inspect and obtain a copy of the public records within a reasonable time.” The Court noted that “insofar as the e-mails still exist on the commissioners’ computers, they remain public records, and the board has a duty to organize and maintain them in a manner in which they can be made available for inspection and copying.” Finally, the public body failed to support its claim of a potential expenditure of “tens of thousands of dollars.”
(5) Who should bear the expense of a forensic analysis?The Court stressed, however, that its ruling applied only to unlawfully deleted e-mails. “[W]e emphasize that in cases in which public records, including e-mails, are properly disposed of in accordance with a duly adopted records-retention policy, there is no entitlement to these records under the Public Records Act.” As further consolation, the public body did not have to pay the newspaper’s attorneys’ fees because “[o]n the novel issue of the recovery of deleted e-mails, the board’s argument was not unreasonable.”
The Court first rejected the argument that the newspaper should bear the cost as a copying cost, because the newspaper asked only to “inspect” the e-mails and did not ask for copies. The Court then conducted a balancing test to determine who should bear the cost, concluding that “the factors that support having the board bear the expense of the forensic analysis to recover the deleted e-mails outweigh the speculative factors that support having the Blade absorb the cost.” The Court added, however, that “the board’s recovery efforts need only be reasonable, not Herculean, consistent with a public office’s general duties under the Public Records Act.”
This decision reinforces what public bodies already should do: (1) have a records retention and disposition policy that includes the retention of electronic data; (2) ensure that all officials and employees are aware of, and comply with, the records retention and disposition policy; and (3) understand that record retention and disposition policies also apply to e-mails. Future violations could have serious financial consequences for the public body, not only for the cost of a forensic recovery of deleted e-mails, but the potential civil fines from unlawfully destroying public records and engaging in spoliation of evidence.
*George S. Crisci is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in all aspects of public sector labor, employment and public records issues. For more information about public records, please contact George at 216.696.4441 or gsc@zrlaw.com.
Thursday, November 27, 2008
Judge Invalidates BWC Group Rating Program - How a Typo Cost Ohio Employers Millions of Dollars
*By Steve P. Dlott
Last week, a Cuyahoga County Common Pleas Judge struck down the BWC group rating program. In his decision, the Judge found that the BWC unlawfully enacted the group rating program. As a result, the Court enjoined the BWC from enacting the group rating program effective July 1, 2009.
Buried in the avalanche of news about the Judge’s decision was the actual legal basis underlying that decision. That legal basis serves as a powerful lesson to all Ohio employers.
Not surprisingly, media groups have portrayed the decision as an attempt to correct the devastating inequities in the premium rating system itself. Employers with stellar claims’ histories have seen their premiums skyrocket because of one bad claim. Clearly, the system is fundamentally unfair and punitive.
However, while the Judge’s decision touches on the program’s inequities, those were not the basis for his decision. Rather, the underpinning of the decision rests upon the statutory language itself.
The statute that authorizes the BWC to create a group rating plan states that the plan must be a “retrospective rating plan.” However, as the disqualified group-rated employers who initiated the lawsuit pointed out, the BWC’s group rating plan as implemented is prospective, not “retrospective.” In response, the BWC argued that “retrospective” language was actually a typo and that the legislature intended language to read “prospective.”
The Judge invoked a well-known legal principle, noting that if the language of a statute is clear on its face, the courts must apply it as written. Here, the Judge concluded the statute’s language is clear: it says “retrospective.” Accordingly, the Judge found he had no choice but to enforce the statute as written. Since the group rating program as implemented by the BWC is prospective and not retrospective as the statute requires, the group rating plan is unlawful. With this one decision, the Judge invalidated the BWC’s group rating program and affected thousands of Ohio employers.
While the BWC has not yet commented on its intentions, it is likely that the BWC will appeal the decision. It is also likely that the BWC will request a stay of the Court’s decision pending the appeal so that the group rating program can proceed as planned on July 1, 2009.
Zashin & Rich will continue to keep employers informed as more information about this important decision becomes known.
Last week, a Cuyahoga County Common Pleas Judge struck down the BWC group rating program. In his decision, the Judge found that the BWC unlawfully enacted the group rating program. As a result, the Court enjoined the BWC from enacting the group rating program effective July 1, 2009.
Buried in the avalanche of news about the Judge’s decision was the actual legal basis underlying that decision. That legal basis serves as a powerful lesson to all Ohio employers.
Not surprisingly, media groups have portrayed the decision as an attempt to correct the devastating inequities in the premium rating system itself. Employers with stellar claims’ histories have seen their premiums skyrocket because of one bad claim. Clearly, the system is fundamentally unfair and punitive.
However, while the Judge’s decision touches on the program’s inequities, those were not the basis for his decision. Rather, the underpinning of the decision rests upon the statutory language itself.
The statute that authorizes the BWC to create a group rating plan states that the plan must be a “retrospective rating plan.” However, as the disqualified group-rated employers who initiated the lawsuit pointed out, the BWC’s group rating plan as implemented is prospective, not “retrospective.” In response, the BWC argued that “retrospective” language was actually a typo and that the legislature intended language to read “prospective.”
The Judge invoked a well-known legal principle, noting that if the language of a statute is clear on its face, the courts must apply it as written. Here, the Judge concluded the statute’s language is clear: it says “retrospective.” Accordingly, the Judge found he had no choice but to enforce the statute as written. Since the group rating program as implemented by the BWC is prospective and not retrospective as the statute requires, the group rating plan is unlawful. With this one decision, the Judge invalidated the BWC’s group rating program and affected thousands of Ohio employers.
While the BWC has not yet commented on its intentions, it is likely that the BWC will appeal the decision. It is also likely that the BWC will request a stay of the Court’s decision pending the appeal so that the group rating program can proceed as planned on July 1, 2009.
Zashin & Rich will continue to keep employers informed as more information about this important decision becomes known.
Wednesday, November 19, 2008
NEW FMLA REGULATIONS TAKE EFFECT JANUARY 16, 2009
The United States Department of Labor published the new FMLA regulations
in the Federal Register today. In 2006, the Department of Labor began a
process to revise the current FMLA regulations. The new FMLA
regulations are available on the Department of Labor’s web-site and will take effect on January 16, 2009. The new FMLA regulations include the following additions and changes:
- additional provisions regarding military caregiver leave;
- additional provisions regarding leave for qualifying exigencies for
families of national guard and reserve members;
- revised provisions regarding wavier of FMLA rights;
- revised provisions regarding the meaning of serious health condition;
- revised provisions regarding whether light duty counts as FMLA leave;
- revised provisions regarding perfect attendance bonuses;
- revised provisions regarding employer and employee notice obligations; and,
- revised provisions and recommended forms regarding the medical
certification process.
The free seminar (now 3 sessions
available due to popular demand!) will take place at the offices of
Zashin & Rich on January 9, 2009.
Session 1: 10:00 am - Noon (Lunch provided after seminar at noon.)
Free Lunch: Noon
Session 2: 12:30 - 2:30 pm (Lunch provided before seminar at noon.)
Session 3: 3:00 - 5:00 pm (Hors d'oeuvres and cocktails to follow.)
Two standard CLE credits have been applied for. Limited seating is available.
Session 1: 10:00 am - Noon (Lunch provided after seminar at noon.)
Free Lunch: Noon
Session 2: 12:30 - 2:30 pm (Lunch provided before seminar at noon.)
Session 3: 3:00 - 5:00 pm (Hors d'oeuvres and cocktails to follow.)
Two standard CLE credits have been applied for. Limited seating is available.
To make a reservation, or to receive more information, please contact Heather Hatfield (hlh@zrlaw.com) at 216.696.4441.
Thursday, November 13, 2008
Check Please? The Employee “Free” Choice Act and More
The Presidential and Congressional elections will almost certainly
result in a dramatic shift away from relatively employer-friendly
national labor policies that have existed for nearly a decade. What
impact will this have for employers?
The labor unions that supported President-Elect Obama and the congressional Democrats will expect to see their signature issues placed at the top of the new administration’s legislative agenda. That likely means passage of some version of the Employee Free Choice Act (“EFCA”) and the lesser-known Re-Empowerment of Skilled and Professional Employees and Construction Trades Act ("RESPECT"). Enactment of these two proposed pieces of legislation will alter radically both the balance of strength between employers and unions and the ability of employers to supervise their workplaces effectively.
EFCA has four primary goals: (1) to allow unions to organize employees (without the employer’s knowledge, much less an opportunity to express its opposing viewpoint) through card checks and eliminate secret-ballot elections; (2) to force employers to accept unreasonable bargaining demands from unions by compelling employer participation in binding interest arbitration of all unresolved issues; (3) to order employers to abide by the decisions of an outside arbitrator who does not have to accept responsibility for a bad decision; and, (4) to mandate employer payment of back pay, liquidated damages and potentially significant fines where an employer has violated employee rights to unionize.
The U.S. House of Representatives passed the EFCA in 2007. However, a Senate filibuster backed up by a threatened presidential veto prevented the passage of the bill. Under the incoming presidential administration, a veto is unlikely and, in light of an increased Democratic Senate majority, the likelihood of a successful filibuster is highly uncertain.
RESPECT will amend dramatically the nearly 60 year old statutory definition of a supervisor under the National Labor Relations Act by: (1) eliminating the two most common supervisory duties – the authority “to assign” other employees, and the authority to “responsibly to direct” other employees; and (2) requiring that a supervisor spend the majority of work time engaging in the remaining duties outlined in the definition (i.e., the authority to exercise independent judgment in the interest of the employer, to hire, transfer, suspend, lay-off, recall, promote, discharge, reward, or discipline other employees, or to adjust their grievances or effectively to recommend such action). With its passage into law, RESPECT will increase the number of employees, currently considered supervisors, who can join unions and seriously impair management’s ability to supervise effectively the workplace. President-Elect Obama already has stated that he agrees with this proposed legislation.
Employers attending the seminar will gain knowledge on topics including, but not limited to:
The labor unions that supported President-Elect Obama and the congressional Democrats will expect to see their signature issues placed at the top of the new administration’s legislative agenda. That likely means passage of some version of the Employee Free Choice Act (“EFCA”) and the lesser-known Re-Empowerment of Skilled and Professional Employees and Construction Trades Act ("RESPECT"). Enactment of these two proposed pieces of legislation will alter radically both the balance of strength between employers and unions and the ability of employers to supervise their workplaces effectively.
EFCA has four primary goals: (1) to allow unions to organize employees (without the employer’s knowledge, much less an opportunity to express its opposing viewpoint) through card checks and eliminate secret-ballot elections; (2) to force employers to accept unreasonable bargaining demands from unions by compelling employer participation in binding interest arbitration of all unresolved issues; (3) to order employers to abide by the decisions of an outside arbitrator who does not have to accept responsibility for a bad decision; and, (4) to mandate employer payment of back pay, liquidated damages and potentially significant fines where an employer has violated employee rights to unionize.
The U.S. House of Representatives passed the EFCA in 2007. However, a Senate filibuster backed up by a threatened presidential veto prevented the passage of the bill. Under the incoming presidential administration, a veto is unlikely and, in light of an increased Democratic Senate majority, the likelihood of a successful filibuster is highly uncertain.
RESPECT will amend dramatically the nearly 60 year old statutory definition of a supervisor under the National Labor Relations Act by: (1) eliminating the two most common supervisory duties – the authority “to assign” other employees, and the authority to “responsibly to direct” other employees; and (2) requiring that a supervisor spend the majority of work time engaging in the remaining duties outlined in the definition (i.e., the authority to exercise independent judgment in the interest of the employer, to hire, transfer, suspend, lay-off, recall, promote, discharge, reward, or discipline other employees, or to adjust their grievances or effectively to recommend such action). With its passage into law, RESPECT will increase the number of employees, currently considered supervisors, who can join unions and seriously impair management’s ability to supervise effectively the workplace. President-Elect Obama already has stated that he agrees with this proposed legislation.
If you are interested in understanding these
anticipated laws and an employer’s best defense to these laws, then you
are invited to attend a free breakfast seminar provided by Zashin &
Rich on Thursday, December 4, 2008 from 9:00 a.m. to 11:00
a.m.
- a comprehensive overview of the proposed statutory changes to the National Labor Relations Act, and the likely impact of these changes upon workforce unionization and labor negotiations;
- a presentation of union avoidance strategies and tactics that focus upon minimizing opportunities for unions to obtain union authorization cards from a majority of employees; and,
- a discussion of recommended adjustments to workplace policies and procedures to reduce the potential adverse consequences of complying with these potential new laws.
Tuesday, November 4, 2008
No More Hanging Chads, Just Long Lines: Employee Voting Leave on Election Day
*By Jason Rossiter
November 4, 2008 is Election Day throughout the nation and Ohio. This year, over 666,000 new voters have registered in Ohio – an increase of almost 9% from January, 2008. State election officials predict a record turnout of 80% which will likely result in long lines and long waiting times at the polls. Employees who experience long waiting times to vote could be tardy to work or take time off during their workday to vote. What course of action may an employer take under these circumstances?
Ohio Revised Code §3599.06 prohibits employers from discharging or threatening to discharge an employee for taking a “reasonable amount of time to vote.” Further, this law prohibits employers from inflicting or threatening to inflict any injury, harm, or loss against employees to induce an employee to vote or refrain from voting. Employers who violate this law are subject to a fine ranging from $50 to $500, enforceable by the Ohio Elections Commission.
Deducting Pay for Employee’s Leave to Vote
Is an employer required to pay an employee for the time the employee was voting?
Ohio law does not explicitly require employers to pay their employees for the time they take off to vote. According to the Ohio Attorney General, employers do not have to pay hourly, commissioned, or piecework employees for leave taken to vote. However, according to the Ohio Attorney General, employers who deduct a salaried employee’s pay for leave taken by the salaried employee to vote, may violate Ohio law. Employers should review their pay practices to determine whether their pay practices are consistent with the Ohio Attorney General’s interpretation of Ohio Revised Code §3599.06.
Voting Before or After Work
Is an employer required to permit an employee to take leave to vote if the employee could have voted before or after work?
Generally, Ohio law requires employers to provide a reasonable amount of time to vote. Ohio law does not provide for any exceptions to this requirement, even when the employee can vote before or after work. Therefore, employers should provide employees leave to vote even when the employee can vote before or after work.
Wrongful Termination Claims and Ohio Election Law
Ohio has no recorded court cases where an employee has sued a former employer for discharging that employee for taking time off of work to vote. However, employers who discharge employees for taking leave to vote may be subject to a cause of action for wrongful discharge in violation of Ohio public policy. Ohio Revised Code §3599.06 appears to provide a clear statement of public policy which may lack a comprehensive remedy to discharged employees. While there are no recorded court cases on this issue, a court faced with this issue may find that an employee is entitled to bring a cause of action for wrongful discharge in violation of Ohio public policy.
*Jason Rossiter has extensive experience in all aspects of workplace law, including wrongful discharge litigation. For more information about wrongful termination, please contact Zashin & Rich at 216.696.4441.
November 4, 2008 is Election Day throughout the nation and Ohio. This year, over 666,000 new voters have registered in Ohio – an increase of almost 9% from January, 2008. State election officials predict a record turnout of 80% which will likely result in long lines and long waiting times at the polls. Employees who experience long waiting times to vote could be tardy to work or take time off during their workday to vote. What course of action may an employer take under these circumstances?
Ohio Revised Code §3599.06 prohibits employers from discharging or threatening to discharge an employee for taking a “reasonable amount of time to vote.” Further, this law prohibits employers from inflicting or threatening to inflict any injury, harm, or loss against employees to induce an employee to vote or refrain from voting. Employers who violate this law are subject to a fine ranging from $50 to $500, enforceable by the Ohio Elections Commission.
Deducting Pay for Employee’s Leave to Vote
Is an employer required to pay an employee for the time the employee was voting?
Ohio law does not explicitly require employers to pay their employees for the time they take off to vote. According to the Ohio Attorney General, employers do not have to pay hourly, commissioned, or piecework employees for leave taken to vote. However, according to the Ohio Attorney General, employers who deduct a salaried employee’s pay for leave taken by the salaried employee to vote, may violate Ohio law. Employers should review their pay practices to determine whether their pay practices are consistent with the Ohio Attorney General’s interpretation of Ohio Revised Code §3599.06.
Voting Before or After Work
Is an employer required to permit an employee to take leave to vote if the employee could have voted before or after work?
Generally, Ohio law requires employers to provide a reasonable amount of time to vote. Ohio law does not provide for any exceptions to this requirement, even when the employee can vote before or after work. Therefore, employers should provide employees leave to vote even when the employee can vote before or after work.
Wrongful Termination Claims and Ohio Election Law
Ohio has no recorded court cases where an employee has sued a former employer for discharging that employee for taking time off of work to vote. However, employers who discharge employees for taking leave to vote may be subject to a cause of action for wrongful discharge in violation of Ohio public policy. Ohio Revised Code §3599.06 appears to provide a clear statement of public policy which may lack a comprehensive remedy to discharged employees. While there are no recorded court cases on this issue, a court faced with this issue may find that an employee is entitled to bring a cause of action for wrongful discharge in violation of Ohio public policy.
*Jason Rossiter has extensive experience in all aspects of workplace law, including wrongful discharge litigation. For more information about wrongful termination, please contact Zashin & Rich at 216.696.4441.
Saturday, August 9, 2008
EMPLOYMENT LAW QUARTERLY | Summer 2008, Volume X, Issue iii
Download PDF
Congress recently passed a bill by a wide margin (402-17) that, if passed, would overturn Supreme Court precedent and broadly expand workers’ rights under the Americans with Disabilities Act (“ADA”). Supporters of the bill argue that the amendments to the ADA would provide “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”
The amendments would operate to expand coverage under the ADA to include a greater amount of mental and physical impairments. First, the definition of disability would expand to prevent an employer from considering the impact of “mitigating measures” an employee might use to control his disability, e.g., (medication, prosthetics, or hearing aids, etc. that prior Supreme Court decisions allowed). Second, the definition would expand to include “episodic” disabilities or conditions that are in remission. Currently, disabilities include only those “physical or mental impairments that substantially limit one or more major life activities,” such as performing manual tasks, seeing, hearing, walking, standing, and thinking.
The amendments further would instruct courts to consider “substantially limits” in a broad sense. Previously, the Supreme Court had narrowed the definition of this term to a strict and demanding standard. The ADA’s potential amendments would render those decisions moot.
Finally, the amendments would allow for the Attorney General, the Equal Employment Opportunity Commission, and the Secretary of Transportation to issue regulations and guidance on how the amended definitions should be construed. Supporters of the amendments argue that this will provide for a nationwide mandate for the elimination of discrimination against individuals with disabilities by providing employers with guidance on how to follow and adhere to the ADA.
The potential amendments, if passed by the Senate and signed into law by the President, will go into effect on January 1, 2009. Practically, persons with conditions such as cancer, diabetes, and epilepsy – who before were not considered “disabled” – would be covered under the amended ADA. This expansion of coverage will likely open the door to more lawsuits against employers as the burden of proof for plaintiffs becomes more lax.
Employers should be aware of these possible changes to the ADA looming on the horizon and be prepared in the event the bill becomes law and they are required to provide additional employees with accommodations.
*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 Ohio Supreme Court recently affirmed a lower court decision in favor of a Plaintiff whose medical records were released to an unauthorized party by the Defendant, his former wife’s divorce attorney. In Hageman v. Southwest General Health Center, the attorney – who gained access to the disputed medical records through discovery proceeding in the domestic relations matter involving the Plaintiff and his former wife – released a copy of the records to a County Prosecutor after the Plaintiff was charged with domestic violence. The Court held that the attorney could be found liable to the Plaintiff for her unauthorized disclosure.
In 2003, the Plaintiff began seeing a psychiatrist. Through the course of treatment, he admitted to having homicidal thoughts about his wife and was subsequently treated for bipolar disorder. When his wife filed for divorce, plaintiff filed a counterclaim seeking legal custody of the couple’s minor son. The wife’s attorney, thereafter, served subpoenas on the Plaintiff’s psychiatrist requesting his medical records and psychotherapy notes. Ultimately, the wife’s attorney received medical documentation from the Plaintiff’s psychiatrist.
At some point later, the Plaintiff was accused of assaulting his wife at home and was charged with domestic violence. On the day of trial, the prosecutor met with the wife’s attorney where the attorney shared the medical records containing the Plaintiff’s nefarious thoughts about his wife. The records were never used or entered into evidence and the Plaintiff was acquitted of all charges.
After entering into a separation agreement with his former wife, the Plaintiff filed suit against his psychiatrist, the psychiatrist’s hospital employer, his now ex-wife, and her attorney. The trial court granted summary judgment on behalf of every defendant, including the attorney. On appeal, the Court of Appeals affirmed for every defendant except the attorney on grounds that she had “overstepped her bounds … when she disseminated information regarding (the Plaintiff’s) psychiatric condition to the prosecutor.”
Affirming the lower court judgment, the Supreme Court held that while the Plaintiff had knowingly placed his medical condition into evidence during the custody proceeding, his implied authorization and waiver was limited to that matter and did not extend as a waiver to unauthorized disclosure to third parties, such as the prosecutor in the Plaintiff’s criminal trial.
The Court held that the public policy surrounding medical records confidentiality trumped a purported expansive waiver of privacy obtained during litigation. Privacy is vital, according to the Court, since the mere possibility of disclosure of sensitive records could impede successful treatment, especially in terms of psychotherapy, due to the possibility of embarrassment or disgrace. In terms of Plaintiff’s situation, the Court agreed that he might have been pressured into settling with his former wife due to the potential embarrassment of disclosure of his medical treatment.
Because an individual must be encouraged to seek such treatment, the Court held that any medical waiver is strictly limited to the particular litigation. Accordingly, an attorney who obtains medical records lawfully through the discovery process could be liable for later disclosure unrelated to the specific matter in which they were procured.
Before releasing any confidential or proprietary information about an employee, employers should carefully examine the potential use – and misuse – of that information and take adequate precaution to ensure that the records are kept confidential and used only for the limited stated purpose for which they were procured.
The Sixth Circuit Court of Appeals, in Niswander v. Cincinnati Insurance Company, recently held that a female claims adjuster, who was fired after she disclosed files containing customer names and other confidential company information to her attorneys pursuing an equal pay collective action, did not engage in “protected activity” under Title VII.
In 2003, Kathy Niswander opted into a collective action lawsuit against her employer, Cincinnati Insurance (“Cincinnati”), alleging that the company had discriminated against her on account of her sex in violation of the Equal Pay Act (“EPA”). After she joined the lawsuit, Niswander complained that she was being discriminated against in retaliation by her supervisors. Ultimately, in 2005, Niswander filed a separate Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that she had been retaliated against for engaging in protected activity; namely, joining the EPA lawsuit.
During the course of the EPA litigation, Niswander’s attorneys sent her a letter requesting that she “look around [her] house and office for any documents [she thought] might be remotely helpful to our case and send them in right away.” Her attorneys further requested documents from Niswander in response to Cincinnati’s discovery requests and warned her of the potential consequences of her failure to cooperate in discovery. In this letter, her attorneys requested “any documents related to (Niswander’s) employment” that she had not already submitted.
In response to the letters, Niswander provided many documents that she believed were relevant to Cincinnati’s alleged acts of retaliation, but admittedly had no documents supporting an EPA claim. Some of the documents produced by Niswander were claim-file documents that contained confidential information about Cincinnati policyholders. According to Niswander, she believed that since Cincinnati had made the discovery requests, this disclosure was allowed. When Cincinnati received the documents, however, they asserted that she had violated the company’s Privacy Policy, its Code of Conduct, and its Conflict of Interest Policy, all prohibiting the disclosure of policyholder information. In December 2005, Cincinnati terminated Niswander’s employment and Niswander filed a separate lawsuit alleging that her termination was retaliation for filing her Charge with the EEOC.
The Sixth Circuit affirmed the trial court’s grant of summary judgment on Niswander’s retaliation claim. The court held that Niswander’s delivery of the confidential documents was not reasonable as “participation” under Title VII because she admitted that the documents were not relevant to the claims in the lawsuit. The court applied the following six factors to determine whether Niswander’s act was reasonable under the opposition clause: (1) how the documents were obtained; (2) to whom they were produced; (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee's claims; (4) why the documents were produced; (5) the scope of the employer's privacy policy; and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer's privacy policy.
The court held that Niswander knowingly violated the company’s policies when she searched through policyholder files to obtain evidence of Cincinnati’s alleged retaliation. The court held that most of the factors favored the policy and that Niswander could have made a record of the alleged retaliation without violating the policyholders’ privacy. The court reasoned that, rather than invade client files, Niswander could have made notes of Cincinnati’s conduct that she felt was retaliatory.
While this case is certainly a win for this employer, employers should take precaution when terminating any employee that is involved in a Title VII lawsuit and/or administrative proceeding against their company for an alleged violation of a company policy. Prior to taking an adverse employment action, employers should consider whether the employee’s conduct passes the balancing test recently established by the Sixth Circuit.
*Michael V. Heffernan regularly defends employers involved in employment litigation and in administrative hearings before the Equal Employment Opportunity Commission and various state administrative civil rights agencies.
A New Jersey appellate court recently held that an employer can be found liable for retaliation for conduct that occurs after the employee’s separation from his or her employment. In Roa v. LAFE (“Roa”), Fernando Roa and his wife, Lilliana Roa, alleged that they were discriminated and retaliated against by their former employer, LAFE, a distributor of “Hispanic Food Products,” and its Vice-President, Marino Roa.
Fernando and Lilliana alleged that Marino was engaged in a number of extramarital relationships with several female employees of LAFE. In February, 2003, when Marino’s wife discovered the relationships, in an attempt to shift blame for his conduct, Marino told his wife that Fernando was the one involved in the relationships. Initially, according to Fernando, he went along with the ruse in order to protect Marino, his superior, in an effort to save his job. Ultimately, however, Fernando came clean to Marino’s wife and confirmed Marino’s involvement in the affairs.
Following Fernando’s confession to Marino’s wife, Fernando and Lilliana allege that Marino engaged in a campaign of harassment against them. At one point, Fernando complained to upper-level management that Marino engaged in the sexual harassment of employees. Fernando’s complaint was rebuffed and Fernando (on October 12, 2003) and Lilliana (on August 24, 2003) were ultimately terminated, allegedly in retaliation for making the complaint about Marino’s conduct. The Roa’s filed their Complaint against LAFE and Marino Roa, under New Jersey’s Law Against Discrimination (“L.A.D.”), more than two years later, on November 5, 2005.
The Defendants argued that the Plaintiffs’ claims could not have accrued past the dates of their terminations. Thus, they argued, given the L.A.D.’s two-year limitations period, both Fernando and Lilliana’s claims were untimely. In response, Fernando and Lilliana alleged that LAFE improperly interfered with Lilliana’s unemployment benefits by indicating to the state unemployment commission that she had been fired for “misconduct,” resulting in Lilliana not receiving unemployment benefits until February 2004. The Roa’s further argued that LAFE improperly denied a medical insurance claim by terminating Fernando’s coverage on September 30, 2003, ahead of his discharge. They alleged that an early October 2003 claim that accrued during Fernando’s employment was not denied by the health insurer until November 11, 2003. Accordingly, they claimed that the limitations period accrued on November 11, 2003 for Fernando and February 2004 for Lilliana, within the two-year limitations period, as LAFE’s conduct in denying the medical claim and the unemployment claim was in retaliation for Fernando’s harassment complaint.
In their Reply brief, the Defendants countered that Fernando had to have known of his potential claim, at the latest in October 2003, because he had a lawyer negotiating the terms of his severance at the time of his discharge. With respect to Lilliana, they argued that she knew of the denial of her unemployment benefits not when she began to receive them (in February 2004), but rather on October 21, 2003, when the state unemployment commission issued a finding denying her claim. Accordingly, the Defendants maintained that Fernando and Lilliana’s claims were time-barred.
Although the trial court agreed with the Defendants, the appellate court reversed in part, finding that the Supreme Court decision of Burlington N. v. Sante Fe Ry. Co. (“Burlington”), which separated a substantive violation under Title VII from independent acts of retaliation that need not be related to the workplace, controlled. The court held that allegations of retaliation under the L.A.D. likewise were not confined to a plaintiff’s dates of employment. Rather, both Title VII and state law employment discrimination laws’ anti-retaliation provisions create separate and distinct causes of action and an employer’s continuing violation of these statutes could accrue after the employee’s termination. The Court found that the denial of Lilliana’s unemployment claim and the denial of Fernando’s medical insurance claim could be construed as continuing violations of Title VII and the L.A.D.’s anti-retaliation provisions.
The court ultimately upheld the dismissal of Lilliana’s claims, however, finding that she knew, at the latest, on October 21, 2003, that her claim for unemployment benefits had been denied. With respect to Fernando, conversely, the court held that he did not learn of the denial of his medical insurance claim until November 11, 2003, less than two years before he filed his Complaint, on November 5, 2005. Thus, the court allowed his claims to survive.
The Roa decision illustrates how courts likely will apply Burlington, finding that violations of Title VII or a state’s civil rights statutes’ anti-retaliation provisions can accrue after an employee’s termination date. When dealing with post-employment benefits such as health care coverage and/or unemployment claims, employers should carefully consider whether their conduct could be construed as a “continuing violation” of either the applicable state law against discrimination and/or Title VII, and extend the relevant limitations period.
*Patrick J. Hoban practices in all areas of labor and employment law, including employment discrimination and wrongful discharge. For more information on Title VII claims or any labor or employment issue, contact Pat at 216.696.4441 or pjh@zrlaw.com.
Zashin and Rich Co., L.P.A. Named As Approved Counsel by Cincinnati Insurance
Cincinnati Insurance recently named Zashin and Rich Co., L.P.A. as “approved counsel” for employment practices liability insurance claims. In the event that your company has a claim under a Cincinnati Insurance policy (e.g., a demand letter, charge of discrimination or a lawsuit), simply ask your insurance broker to request Zashin and Rich Co., L.P.A. as defense counsel in the matter.
Zashin & Rich Co., L.P.A. Welcomes Mike Heffernan to its Growing Labor and Employment Group
Zashin & Rich recently welcomed Mike Heffernan to the firm and its expanding Employment and Labor Group. Mike defends employers in a wide variety of labor and employment matters, including harassment, discrimination, and federal and state civil rights. Mike received his undergraduate degree, cum laude, in Urban Affairs from Cleveland State University in 1998 and graduated from the Cleveland-Marshall School of Law in 2001, where he was Articles Editor for the Cleveland-Marshall Law Review. Prior to joining Zashin & Rich, Mike served as the Chief Judicial Attorney of the Cuyahoga County Court of Common Pleas.
Please join us in welcoming Mike to Z&R!
Upcoming Seminars
September 8, 2008
Steve Dlott and Patrick Watts will present the “Ten Biggest Leave of Absence/Return-To-Work Mistakes Aging Services Providers Make” to the Advocate of Not-For-Profit Services For Older Ohioans (“AOPHA”) 2008 Annual Conference and Trade Show, which will be held at the Greater Columbus Convention Center. Steve and Patrick will provide protocols and decision trees to assist health care organizations in the resolution of these complicated issues. For more information and/or to register, call (614) 444-2882.
September 24, 2008
Jon Dileno will be a panelist at the AMS Conference on Labor Arbitration at the Crowne Plaza, Cleveland City Centre Hotel on the subject of "Just Cause for Discipline and Discharge, the Basics. The Perspective of the Employer and Union Representatives."
September 25, 2008
Steve Dlott will present “Defending Workers’ Compensation Claims” to the Lake/Geauga Chapter of the Society for Human Resource Management (“SHRM”) as part of the “Effective HR – It’s All About People!” workshop on September 25, 2008 at the Radisson Hotel/Eastlake. For more information or to register, call (440) 392-2168 or email: info@lgashrm.org.
September 10-13, 2008
George Crisci will be part of a panel discussion at the Labor & Employment Law Section of the American Bar Association’s 2nd Annual CLE Conference in Denver, Colorado from September 10-13, 2008. George will serve as a panelist for the “Negotiating Skills in Collective Bargaining” discussion that will focus on what works and what does not work in the context of labor negotiations and useful tools for working in the thicket of public sector bargaining.
October 16 and 17, 2008
George Crisci and Stephen Zashin will speak at the 45th Annual Midwest Labor and Employment Law Seminar presented by the Ohio State Bar Association October 16 and 17, 2008 in Columbus. George will present “Public Collective Bargaining Developments” to the conference and Stephen will present an update on FMLA and other leave law.
- DISABILITY UPDATE – House Expands ADA Coverage
- ESQUIRE BEWARE: Attorney Found Liable for Unauthorized Disclosure of Medical Records
- NO RETALIATION: Violating Privacy Policy Is Not Protected Activity
- TIMELINESS - Retaliation Can Accrue Past Termination
- Z&R Shorts
DISABILITY UPDATE – House Expands ADA Coverage Even if You Have a TPA
By George S. Crisci*Congress recently passed a bill by a wide margin (402-17) that, if passed, would overturn Supreme Court precedent and broadly expand workers’ rights under the Americans with Disabilities Act (“ADA”). Supporters of the bill argue that the amendments to the ADA would provide “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”
The amendments would operate to expand coverage under the ADA to include a greater amount of mental and physical impairments. First, the definition of disability would expand to prevent an employer from considering the impact of “mitigating measures” an employee might use to control his disability, e.g., (medication, prosthetics, or hearing aids, etc. that prior Supreme Court decisions allowed). Second, the definition would expand to include “episodic” disabilities or conditions that are in remission. Currently, disabilities include only those “physical or mental impairments that substantially limit one or more major life activities,” such as performing manual tasks, seeing, hearing, walking, standing, and thinking.
The amendments further would instruct courts to consider “substantially limits” in a broad sense. Previously, the Supreme Court had narrowed the definition of this term to a strict and demanding standard. The ADA’s potential amendments would render those decisions moot.
Finally, the amendments would allow for the Attorney General, the Equal Employment Opportunity Commission, and the Secretary of Transportation to issue regulations and guidance on how the amended definitions should be construed. Supporters of the amendments argue that this will provide for a nationwide mandate for the elimination of discrimination against individuals with disabilities by providing employers with guidance on how to follow and adhere to the ADA.
The potential amendments, if passed by the Senate and signed into law by the President, will go into effect on January 1, 2009. Practically, persons with conditions such as cancer, diabetes, and epilepsy – who before were not considered “disabled” – would be covered under the amended ADA. This expansion of coverage will likely open the door to more lawsuits against employers as the burden of proof for plaintiffs becomes more lax.
Employers should be aware of these possible changes to the ADA looming on the horizon and be prepared in the event the bill becomes law and they are required to provide additional employees with accommodations.
*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.
ESQUIRE BEWARE: Attorney Found Liable for Unauthorized Disclosure of Medical Records
By Lois A. GruhinThe Ohio Supreme Court recently affirmed a lower court decision in favor of a Plaintiff whose medical records were released to an unauthorized party by the Defendant, his former wife’s divorce attorney. In Hageman v. Southwest General Health Center, the attorney – who gained access to the disputed medical records through discovery proceeding in the domestic relations matter involving the Plaintiff and his former wife – released a copy of the records to a County Prosecutor after the Plaintiff was charged with domestic violence. The Court held that the attorney could be found liable to the Plaintiff for her unauthorized disclosure.
In 2003, the Plaintiff began seeing a psychiatrist. Through the course of treatment, he admitted to having homicidal thoughts about his wife and was subsequently treated for bipolar disorder. When his wife filed for divorce, plaintiff filed a counterclaim seeking legal custody of the couple’s minor son. The wife’s attorney, thereafter, served subpoenas on the Plaintiff’s psychiatrist requesting his medical records and psychotherapy notes. Ultimately, the wife’s attorney received medical documentation from the Plaintiff’s psychiatrist.
At some point later, the Plaintiff was accused of assaulting his wife at home and was charged with domestic violence. On the day of trial, the prosecutor met with the wife’s attorney where the attorney shared the medical records containing the Plaintiff’s nefarious thoughts about his wife. The records were never used or entered into evidence and the Plaintiff was acquitted of all charges.
After entering into a separation agreement with his former wife, the Plaintiff filed suit against his psychiatrist, the psychiatrist’s hospital employer, his now ex-wife, and her attorney. The trial court granted summary judgment on behalf of every defendant, including the attorney. On appeal, the Court of Appeals affirmed for every defendant except the attorney on grounds that she had “overstepped her bounds … when she disseminated information regarding (the Plaintiff’s) psychiatric condition to the prosecutor.”
Affirming the lower court judgment, the Supreme Court held that while the Plaintiff had knowingly placed his medical condition into evidence during the custody proceeding, his implied authorization and waiver was limited to that matter and did not extend as a waiver to unauthorized disclosure to third parties, such as the prosecutor in the Plaintiff’s criminal trial.
The Court held that the public policy surrounding medical records confidentiality trumped a purported expansive waiver of privacy obtained during litigation. Privacy is vital, according to the Court, since the mere possibility of disclosure of sensitive records could impede successful treatment, especially in terms of psychotherapy, due to the possibility of embarrassment or disgrace. In terms of Plaintiff’s situation, the Court agreed that he might have been pressured into settling with his former wife due to the potential embarrassment of disclosure of his medical treatment.
Because an individual must be encouraged to seek such treatment, the Court held that any medical waiver is strictly limited to the particular litigation. Accordingly, an attorney who obtains medical records lawfully through the discovery process could be liable for later disclosure unrelated to the specific matter in which they were procured.
Before releasing any confidential or proprietary information about an employee, employers should carefully examine the potential use – and misuse – of that information and take adequate precaution to ensure that the records are kept confidential and used only for the limited stated purpose for which they were procured.
NO RETALIATION: Violating Privacy Policy Is Not Protected Activity
By Michael V. HeffernanThe Sixth Circuit Court of Appeals, in Niswander v. Cincinnati Insurance Company, recently held that a female claims adjuster, who was fired after she disclosed files containing customer names and other confidential company information to her attorneys pursuing an equal pay collective action, did not engage in “protected activity” under Title VII.
In 2003, Kathy Niswander opted into a collective action lawsuit against her employer, Cincinnati Insurance (“Cincinnati”), alleging that the company had discriminated against her on account of her sex in violation of the Equal Pay Act (“EPA”). After she joined the lawsuit, Niswander complained that she was being discriminated against in retaliation by her supervisors. Ultimately, in 2005, Niswander filed a separate Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that she had been retaliated against for engaging in protected activity; namely, joining the EPA lawsuit.
During the course of the EPA litigation, Niswander’s attorneys sent her a letter requesting that she “look around [her] house and office for any documents [she thought] might be remotely helpful to our case and send them in right away.” Her attorneys further requested documents from Niswander in response to Cincinnati’s discovery requests and warned her of the potential consequences of her failure to cooperate in discovery. In this letter, her attorneys requested “any documents related to (Niswander’s) employment” that she had not already submitted.
In response to the letters, Niswander provided many documents that she believed were relevant to Cincinnati’s alleged acts of retaliation, but admittedly had no documents supporting an EPA claim. Some of the documents produced by Niswander were claim-file documents that contained confidential information about Cincinnati policyholders. According to Niswander, she believed that since Cincinnati had made the discovery requests, this disclosure was allowed. When Cincinnati received the documents, however, they asserted that she had violated the company’s Privacy Policy, its Code of Conduct, and its Conflict of Interest Policy, all prohibiting the disclosure of policyholder information. In December 2005, Cincinnati terminated Niswander’s employment and Niswander filed a separate lawsuit alleging that her termination was retaliation for filing her Charge with the EEOC.
The Sixth Circuit affirmed the trial court’s grant of summary judgment on Niswander’s retaliation claim. The court held that Niswander’s delivery of the confidential documents was not reasonable as “participation” under Title VII because she admitted that the documents were not relevant to the claims in the lawsuit. The court applied the following six factors to determine whether Niswander’s act was reasonable under the opposition clause: (1) how the documents were obtained; (2) to whom they were produced; (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee's claims; (4) why the documents were produced; (5) the scope of the employer's privacy policy; and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer's privacy policy.
The court held that Niswander knowingly violated the company’s policies when she searched through policyholder files to obtain evidence of Cincinnati’s alleged retaliation. The court held that most of the factors favored the policy and that Niswander could have made a record of the alleged retaliation without violating the policyholders’ privacy. The court reasoned that, rather than invade client files, Niswander could have made notes of Cincinnati’s conduct that she felt was retaliatory.
While this case is certainly a win for this employer, employers should take precaution when terminating any employee that is involved in a Title VII lawsuit and/or administrative proceeding against their company for an alleged violation of a company policy. Prior to taking an adverse employment action, employers should consider whether the employee’s conduct passes the balancing test recently established by the Sixth Circuit.
*Michael V. Heffernan regularly defends employers involved in employment litigation and in administrative hearings before the Equal Employment Opportunity Commission and various state administrative civil rights agencies.
TIMELINESS - Retaliation Can Accrue Past Termination
By Patrick J. Hoban*A New Jersey appellate court recently held that an employer can be found liable for retaliation for conduct that occurs after the employee’s separation from his or her employment. In Roa v. LAFE (“Roa”), Fernando Roa and his wife, Lilliana Roa, alleged that they were discriminated and retaliated against by their former employer, LAFE, a distributor of “Hispanic Food Products,” and its Vice-President, Marino Roa.
Fernando and Lilliana alleged that Marino was engaged in a number of extramarital relationships with several female employees of LAFE. In February, 2003, when Marino’s wife discovered the relationships, in an attempt to shift blame for his conduct, Marino told his wife that Fernando was the one involved in the relationships. Initially, according to Fernando, he went along with the ruse in order to protect Marino, his superior, in an effort to save his job. Ultimately, however, Fernando came clean to Marino’s wife and confirmed Marino’s involvement in the affairs.
Following Fernando’s confession to Marino’s wife, Fernando and Lilliana allege that Marino engaged in a campaign of harassment against them. At one point, Fernando complained to upper-level management that Marino engaged in the sexual harassment of employees. Fernando’s complaint was rebuffed and Fernando (on October 12, 2003) and Lilliana (on August 24, 2003) were ultimately terminated, allegedly in retaliation for making the complaint about Marino’s conduct. The Roa’s filed their Complaint against LAFE and Marino Roa, under New Jersey’s Law Against Discrimination (“L.A.D.”), more than two years later, on November 5, 2005.
The Defendants argued that the Plaintiffs’ claims could not have accrued past the dates of their terminations. Thus, they argued, given the L.A.D.’s two-year limitations period, both Fernando and Lilliana’s claims were untimely. In response, Fernando and Lilliana alleged that LAFE improperly interfered with Lilliana’s unemployment benefits by indicating to the state unemployment commission that she had been fired for “misconduct,” resulting in Lilliana not receiving unemployment benefits until February 2004. The Roa’s further argued that LAFE improperly denied a medical insurance claim by terminating Fernando’s coverage on September 30, 2003, ahead of his discharge. They alleged that an early October 2003 claim that accrued during Fernando’s employment was not denied by the health insurer until November 11, 2003. Accordingly, they claimed that the limitations period accrued on November 11, 2003 for Fernando and February 2004 for Lilliana, within the two-year limitations period, as LAFE’s conduct in denying the medical claim and the unemployment claim was in retaliation for Fernando’s harassment complaint.
In their Reply brief, the Defendants countered that Fernando had to have known of his potential claim, at the latest in October 2003, because he had a lawyer negotiating the terms of his severance at the time of his discharge. With respect to Lilliana, they argued that she knew of the denial of her unemployment benefits not when she began to receive them (in February 2004), but rather on October 21, 2003, when the state unemployment commission issued a finding denying her claim. Accordingly, the Defendants maintained that Fernando and Lilliana’s claims were time-barred.
Although the trial court agreed with the Defendants, the appellate court reversed in part, finding that the Supreme Court decision of Burlington N. v. Sante Fe Ry. Co. (“Burlington”), which separated a substantive violation under Title VII from independent acts of retaliation that need not be related to the workplace, controlled. The court held that allegations of retaliation under the L.A.D. likewise were not confined to a plaintiff’s dates of employment. Rather, both Title VII and state law employment discrimination laws’ anti-retaliation provisions create separate and distinct causes of action and an employer’s continuing violation of these statutes could accrue after the employee’s termination. The Court found that the denial of Lilliana’s unemployment claim and the denial of Fernando’s medical insurance claim could be construed as continuing violations of Title VII and the L.A.D.’s anti-retaliation provisions.
The court ultimately upheld the dismissal of Lilliana’s claims, however, finding that she knew, at the latest, on October 21, 2003, that her claim for unemployment benefits had been denied. With respect to Fernando, conversely, the court held that he did not learn of the denial of his medical insurance claim until November 11, 2003, less than two years before he filed his Complaint, on November 5, 2005. Thus, the court allowed his claims to survive.
The Roa decision illustrates how courts likely will apply Burlington, finding that violations of Title VII or a state’s civil rights statutes’ anti-retaliation provisions can accrue after an employee’s termination date. When dealing with post-employment benefits such as health care coverage and/or unemployment claims, employers should carefully consider whether their conduct could be construed as a “continuing violation” of either the applicable state law against discrimination and/or Title VII, and extend the relevant limitations period.
*Patrick J. Hoban practices in all areas of labor and employment law, including employment discrimination and wrongful discharge. For more information on Title VII claims or any labor or employment issue, contact Pat at 216.696.4441 or pjh@zrlaw.com.
Z&R Shorts
Zashin and Rich Co., L.P.A. Named As Approved Counsel by Cincinnati Insurance
Cincinnati Insurance recently named Zashin and Rich Co., L.P.A. as “approved counsel” for employment practices liability insurance claims. In the event that your company has a claim under a Cincinnati Insurance policy (e.g., a demand letter, charge of discrimination or a lawsuit), simply ask your insurance broker to request Zashin and Rich Co., L.P.A. as defense counsel in the matter.
Zashin & Rich Co., L.P.A. Welcomes Mike Heffernan to its Growing Labor and Employment Group
Zashin & Rich recently welcomed Mike Heffernan to the firm and its expanding Employment and Labor Group. Mike defends employers in a wide variety of labor and employment matters, including harassment, discrimination, and federal and state civil rights. Mike received his undergraduate degree, cum laude, in Urban Affairs from Cleveland State University in 1998 and graduated from the Cleveland-Marshall School of Law in 2001, where he was Articles Editor for the Cleveland-Marshall Law Review. Prior to joining Zashin & Rich, Mike served as the Chief Judicial Attorney of the Cuyahoga County Court of Common Pleas.
Please join us in welcoming Mike to Z&R!
Upcoming Seminars
September 8, 2008
Steve Dlott and Patrick Watts will present the “Ten Biggest Leave of Absence/Return-To-Work Mistakes Aging Services Providers Make” to the Advocate of Not-For-Profit Services For Older Ohioans (“AOPHA”) 2008 Annual Conference and Trade Show, which will be held at the Greater Columbus Convention Center. Steve and Patrick will provide protocols and decision trees to assist health care organizations in the resolution of these complicated issues. For more information and/or to register, call (614) 444-2882.
September 24, 2008
Jon Dileno will be a panelist at the AMS Conference on Labor Arbitration at the Crowne Plaza, Cleveland City Centre Hotel on the subject of "Just Cause for Discipline and Discharge, the Basics. The Perspective of the Employer and Union Representatives."
September 25, 2008
Steve Dlott will present “Defending Workers’ Compensation Claims” to the Lake/Geauga Chapter of the Society for Human Resource Management (“SHRM”) as part of the “Effective HR – It’s All About People!” workshop on September 25, 2008 at the Radisson Hotel/Eastlake. For more information or to register, call (440) 392-2168 or email: info@lgashrm.org.
September 10-13, 2008
George Crisci will be part of a panel discussion at the Labor & Employment Law Section of the American Bar Association’s 2nd Annual CLE Conference in Denver, Colorado from September 10-13, 2008. George will serve as a panelist for the “Negotiating Skills in Collective Bargaining” discussion that will focus on what works and what does not work in the context of labor negotiations and useful tools for working in the thicket of public sector bargaining.
October 16 and 17, 2008
George Crisci and Stephen Zashin will speak at the 45th Annual Midwest Labor and Employment Law Seminar presented by the Ohio State Bar Association October 16 and 17, 2008 in Columbus. George will present “Public Collective Bargaining Developments” to the conference and Stephen will present an update on FMLA and other leave law.
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