*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.
Thursday, June 9, 2011
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
Monday, March 7, 2011
SENATE BILL 5 – It's A Whole New Ballgame
The public sector collective bargaining landscape in the State of Ohio is about to change dramatically.
Senate Bill 5 – which has passed the Ohio Senate and will almost certainly pass the Ohio House in the ensuing weeks – will significantly alter public sector collective bargaining and employer/employee rights under Revised Code Chapter 4117. Public employers must understand these wide-ranging changes, adjust their current and future negotiation strategies, and position themselves to take full advantage of the new law.
To assist public employers in understanding and preparing for these changes, Zashin & Rich Co., L.P.A. will present a seminar regarding Senate Bill 5 on Tuesday, April 12, 2011. The presentation will include 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).
1 Center Court | Cleveland, Ohio 44115
Northeast Arcade Entrance (Next to the Team Shop)
10:00 am - Noon (lunch to follow)
CLE credits are pending.
Senate Bill 5 – which has passed the Ohio Senate and will almost certainly pass the Ohio House in the ensuing weeks – will significantly alter public sector collective bargaining and employer/employee rights under Revised Code Chapter 4117. Public employers must understand these wide-ranging changes, adjust their current and future negotiation strategies, and position themselves to take full advantage of the new law.
To assist public employers in understanding and preparing for these changes, Zashin & Rich Co., L.P.A. will present a seminar regarding Senate Bill 5 on Tuesday, April 12, 2011. The presentation will include 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).
Free Seminar: Senate Bill 5
Location:
Quicken Loans ArenaLocation:
1 Center Court | Cleveland, Ohio 44115
Northeast Arcade Entrance (Next to the Team Shop)
Date/Time:
Tuesday, April 12, 201110:00 am - Noon (lunch to follow)
CLE credits are pending.
Friday, December 17, 2010
EMPLOYMENT LAW QUARTERLY | Fall 2010, Volume XII, Issue iii
Download PDF
In today's difficult economic times, trade secret theft is becoming more frequent, particularly in the areas of corporate information technology, finance, accounting, sales, marketing, human resources, and communications. Employers have found that former employees steal data by transferring it to a CD or DVD and copy e-mail lists, employee records, and customer information. Often, former employees then use this information to find a new job or with their new employer.
There are a number of different methods and safeguarding techniques employers should consider to protect their confidential business information. Some of these include:
It is critical for companies to safeguard their trade secrets and technical information. Companies must be able to maintain customer relationships without worrying that former employees might use stolen information to the company's detriment. Implementing proper procedures and safeguards to protect confidential business information can help alleviate these concerns and assure your company's viability.
Recently, the Ohio Supreme Court held in State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm. that a Workers' Compensation claimant is entitled to both an average weekly wage (AWW) and full weekly wage (FWW) which includes income from a second job, even when that second job is unrelated to the first and when the second job pays more than the first.
In that case, Christopher Roper, injured himself while working for FedEx. In addition to his job at FedEx, Roper worked a second job with a pest control company and also operated another business on the side. After his injury at FedEx, FedEx set Roper's AWW at $160.45 and set his FWW at $250.80. FedEx derived these figures from his earnings at FedEx without taking into account his earnings from his second job at the pest control company.
Roper then moved the Industrial Commission of Ohio to increase his AWW and FWW to reflect his combined earnings from FedEx and the pest control company. The district hearing officer did so based on the "special circumstances" provision of R.C. 4123.61, increasing his AWW award to $417.05 and his FWW award to $457.36. The Franklin County Court of Appeals eventually affirmed the order.
The Ohio Supreme Court similarly affirmed, holding that the AWW, as the basis for benefit computation, "should approximate the average amount that the claimant would have received had he continued working after the injury as he had before the injury." The Court further stated that, while R.C. 4123.61 refers to the "average weekly wage for the year preceding the injury," the formula may be discarded if the AWW cannot justly be determined by applying the formula. When this occurs, the statute provides that the administrator for the Bureau of Workers' Compensation "shall use such method as will enable the administrator to do substantial justice to the claimants." Id.
To no avail, FedEx argued that the inclusion of wages from other, concurrent jobs would create a disincentive for claimants to return to work. FedEx also argued that secondary wages should be excluded entirely, or in the alternative that they be limited to situations where the two jobs are similar in character. In response to FedEx's first argument, the Court noted that R.C. 4123.56(A) expressly prohibits temporary total disability payments when the employer makes work available to the employee in a manner that is within his or her physical capabilities, or when another employer does so. The court, in dispensing with the second argument, noted that R.C. 4123.61 "refers to wages earned in the year prior to injury without qualification or exclusion." The court also noted that similar jobs can also have disparate earnings. Thus, limiting AWW awards to jobs which are similar in nature would not necessarily eliminate the wage differential which could potentially exist.
FedEx also challenged the amount of the FWW the Commission awarded to Roper. The Court also upheld this amount, giving broad deference to the Commission's calculation relying on Joint Resolution No. R80-7-48, issued by the Industrial Commission and Bureau of Workers' Compensation. The resolution states that the full weekly wage equals "the gross wages (including overtime pay) earned over the aforementioned six week period divided by six" or "the employee's gross wages earned for the seven days prior to the date of injury, excluding overtime pay," whichever is higher. The Court found that the Commission did not abuse its discretion in using the first formula to calculate Roper's FWW amount.
As a result of this case, employers need to understand that AWW and FWW awards must include all of an injured worker's income from the year prior to the injury from all employers. In addition, employers need to offer employment within the physical capabilities of the injured worker as soon as possible so as to minimize temporary total compensation payments.
*Scott Coghlan, the chair of the firms' Workers' Compensation Group, has extensive experience in all aspects of workers' compensation law. For more information about workers' compensation compliance, please contact Scott at 216.696.4441 or sc@zrlaw.com.
According to National Labor Relations Board ("NLRB") data, unions won 68.5 percent of representation elections conducted by the NLRB in 2009. This is up from the prior year's 66.9 percent and represents the highest win rate since 1955 when unions won 67.6 percent of the elections in which they participated. The 2009 union election win-rate represents more than a ten percent increase since 2004, although unions have won more representation elections than they have lost in each of the past 13 years.
While the union win-rate increased in 2009, the number of voters eligible to participate in the elections decreased from 2008. Additionally, the NLRB conducted 1,293 elections in 2009 as compared to 1,612 in 2008, with the number of elections in 2009 (1,293) being nearly half the number of elections conducted in 1996 (3,300). Thus, while unions are winning at a greater percentage, the dramatic decrease in elections has resulted in a corresponding decrease in the actual number of elections they are winning.
Notably, these NLRB statistics do not reflect the full extent of organizing by labor unions. Many unions organize through check-card recognition, neutrality agreements, and methods other than NLRB-run, secret ballot elections. These statistics should encourage all non-union employers to review and revise workplace policies related to union organizing and monitor their workplaces for potential union organizing efforts.
*Jon M. Dileno practices in all areas of labor and employment law, with a focus on private and public sector labor law. For more information on NLRB statistics or any other labor or employment issue, contact Jon at 216.696.4441 or jmd@zrlaw.com.
Recently, the Department of Labor ("DOL") issued yet another opinion letter regarding whether changing clothes at the beginning or end of the workday is compensable time under the Fair Labor Standards Act ("FLSA"). The DOL also addressed whether changing clothes could be considered a "principal activity" under the Portal to Portal Act making compensable all employee activities that occur after the changing of clothes at the beginning of the workday.
What are clothes?
The FLSA provides that when determining hours worked by an employee, the employer shall exclude "time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement…" 29 U.S.C. §203(o). The DOL has issued five (5) opinion letters over the past fifteen (15) years regarding the meaning of this provision and the meaning of "clothes." In one opinion letter, the DOL concluded that "clothes" did not include protective equipment such as: mesh aprons, plastic belly guards, mesh sleeves, plastic arm guards, wrist wraps, mesh gloves, runner gloves, polar sleeves, rubber boots, shin guards and weight belts. See Wage and Hour Opinion Letter, December 3, 1997. Later, the DOL revised its view of "clothes" and determined that "clothes" included protective gear. See Wage and Hour Opinion Letter, FLSA 2002-2.
In its most recent opinion letter, the DOL retreated to its previous position and now advises that "clothes" do not include protective gear. In support, the DOL cited to the legislative history of the law and also to current court cases which conclude that protective gear are not clothes. In citing the legislative history, the DOL noted that during Congressional debate on this provision an example of bakery employees was utilized to explain the purpose of this provision. The DOL concluded that the example of bakery employees changing "clothes" was incompatible with meatpackers or employees changing protective gear. Moreover, the DOL cited to three cases which concluded that, among other things, helmets, smocks, plastic aprons, arm guards, gloves, hooks, knife holders, sanitary and safety equipment, and protective equipment did not constitute "clothes." As a result, the DOL advises that time spent changing protective gear or equipment is not exempt from compensable time based on the express terms of or by custom or practice of a collective bargaining agreement as provided by 29 U.S.C. §203(o). The DOL disavowed any previous opinion letter which is inconsistent with this most recent opinion.
Can the workday start when the employee is changing clothes?
In the second part of its recent opinion letter, the DOL
addressed whether changing clothes could still constitute a "principal
activity," even if the act of changing clothes itself was not
compensable. If changing clothes is a principal activity, then walking
time and waiting time after changing clothes at the beginning of the day
(and walking and waiting time before changing clothes at the end of the
day) would constitute compensable time.
The DOL determined that changing clothes may be a principal activity. The DOL first noted that the language of §203 assumes that changing clothes can be a principal activity because that section states that "time spent in changing clothes or washing at the beginning or end of each workday…" The DOL concluded that the language itself assumes that the changing of clothes, while exempt from compensability in some cases, remains part of the workday. The DOL also cited to several court cases which addressed this issue. Many of these courts concluded that simply because the activity was not compensable did not also mean that the activity could not be considered the start of the workday. One court noted that although changing clothes may not be compensable under the FLSA, "it does not affect the fact that these activities could be the first 'integral and indispensable' act that triggers the start of the continuous workday…" As a result, the DOL concluded that changing clothes, even when not compensable, may still be a principal activity which effectively starts the workday.
Notably, the DOL did not opine that changing clothes will always be non-compensable or that changing clothes will always be a principal activity. Employers must consider a variety of factors to answer these questions, including whether there is a custom or practice or express language within a collective bargaining agreement and also whether changing clothes is an integral and indispensable act to an employees job. If you need assistance analyzing these or any FLSA compliance issues, please contact us.
The United States Department of Labor (DOL) final regulations concerning child labor took effect on July 19, 2010. The regulations govern the employment of children for non-agricultural jobs. The final regulations incorporate statutory amendments to the Fair Labor Standards Act (FLSA) and specific recommendations made by the National Institute for Occupational Safety and Health and give employers clear notice of jobs that children may not perform.
The FLSA requires workers be at least 16 years old to work in non-agricultural occupations. However, the DOL deems certain occupations suitable for workers between 14 and 15 years old. For example, prior to the regulations, 14- and 15-year olds could work in retail, food service, and gasoline service establishments. With the new regulations, permissible occupations for workers ages 14-15 now include: office and clerical work, computer programming, writing software, tutoring, serving as a peer counselor or teacher's assistant, singing, playing a musical instrument, cashiering, modeling, price marking, assembling orders, packing and shelving, bagging and carrying out customer orders, kitchen work, and other food, beverage prep and service work. Fifteen year olds can also work as lifeguards.
The new regulations make clear that any job not specifically permitted for 14- and 15-year olds is prohibited. The regulations also include a non-exhaustive list of prohibited occupations including: manufacturing, mining, processing, working with a hoisting apparatus, working with power-driven machinery such as lawn mowers and golf carts, all work requiring the use of ladders or scaffolds, and occupations in warehousing, storage, communications, public utilities or public messenger services. Fourteen and 15-year olds also are prohibited from door-to-door "street" sales. However, charitable or fundraising efforts, such as selling cookies for the Girl Scouts or school fundraisers, are exempt from this provision.
The new regulations also clarify times and maximum number of hours 14- and 15-year olds may work. From June 1st through Labor Day, 14- and 15-year olds may work between the hours of 7 a.m. and 9 p.m. They may work a maximum of 8 hours per day and no more than 40 hours in one week. When school is in session, 14- and 15-year olds may work between 7 a.m. and 7 p.m. Additionally, during the school year they may not work more than 3 hours per day or 18 hours per week.
The new regulations also expand prohibitions for workers between the ages of 16 and 18. The prohibited occupations for workers between ages 16 and 18 now include: working with, tending, riding upon, repairing, servicing or disassembling an elevator, crane, manlift, hoist or high-lift truck; and working with chain saws, reciprocating saws, wood chippers and abrasive cutting discs.
The regulations also increase the penalties for child labor violations. Violators can be subject to a civil penalty between $11,000 and $50,000 for each violation and $100,000 for repeated or willful violations. The regulations also add a new penalty for causing death or serious injury to an employee under the age of 18. "Serious injury" is defined as:
In addition to the above, the regulations also include new work-study programs for workers aged 14-15. As a result of these new regulations, this may be a good time for employers to revisit their child labor policies and make any necessary changes.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of employment litigation and FLSA compliance. For more information about complying with child labor laws, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
Welcome Stefanie L. Baker
Zashin & Rich Co., L.P.A. is pleased to announce the addition of Stefanie L. Baker to its Employment and Labor Group.
Stefanie's practice encompasses all areas of public and private labor and employment issues.
Stefanie earned a B.A. with honors from Miami University. She earned her law degree (J.D.) with honors from Cleveland-Marshall College of Law. During law school, Stefanie served as Editor-in-Chief of the Journal of Law and Health. She was also a member of Moot Court and completed an externship with the Honorable Christopher A. Boyko of the Northern District of Ohio. Stefanie is admitted to practice law in the State of Ohio. She is a member of the Ohio State Bar Association, the Cleveland Metropolitan Bar Association, and the Cleveland-Marshall Law Alumni Association.
Please join us in welcoming Stefanie to Z&R!
Congratulations to Patrick J. Hoban
Zashin & Rich Co., L.P.A. would like to congratulate Patrick J. Hoban on his recent certification by the Ohio State Bar Association as a Specialist in Labor and Employment law. Pat fulfilled several requirements to earn this specialty certification, including demonstrating a substantial and continuing involvement in Labor and Employment law. Congratulations Pat!
- Lock It Up: Safeguard company property against trade secret theft
- Special Delivery: Workers' compensation awards must account for all jobs
- Unions Winning a Higher Percentage of Representation Elections, but the Numbers Don't Tell the Full Story
- Taking It All Off: Are employers required to pay employees for changing clothes?
- Child's Play: U.S. Department of Labor issues final child labor regulations
- Z&R Shorts
Lock It Up: Safeguard company property against trade secret theft
By Lois A. GruhinIn today's difficult economic times, trade secret theft is becoming more frequent, particularly in the areas of corporate information technology, finance, accounting, sales, marketing, human resources, and communications. Employers have found that former employees steal data by transferring it to a CD or DVD and copy e-mail lists, employee records, and customer information. Often, former employees then use this information to find a new job or with their new employer.
There are a number of different methods and safeguarding techniques employers should consider to protect their confidential business information. Some of these include:
- Ensuring that documents and electronic data are adequately protected with locks, passwords, or other restrictions on access;
- Requiring employees to sign non-compete/non-disclosure agreements;
- Conducting exit interviews and obtaining assurance form the exiting employee that he/she has returned all company property and reminding the employee of any agreements he/she may have signed;
- Terminating computer access immediately after the employee leaves the company; and
- Conducting trade secret/non-compete audits regulary.
It is critical for companies to safeguard their trade secrets and technical information. Companies must be able to maintain customer relationships without worrying that former employees might use stolen information to the company's detriment. Implementing proper procedures and safeguards to protect confidential business information can help alleviate these concerns and assure your company's viability.
Special Delivery: Workers' compensation awards must account for all jobs
By Scott Coghlan*Recently, the Ohio Supreme Court held in State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm. that a Workers' Compensation claimant is entitled to both an average weekly wage (AWW) and full weekly wage (FWW) which includes income from a second job, even when that second job is unrelated to the first and when the second job pays more than the first.
In that case, Christopher Roper, injured himself while working for FedEx. In addition to his job at FedEx, Roper worked a second job with a pest control company and also operated another business on the side. After his injury at FedEx, FedEx set Roper's AWW at $160.45 and set his FWW at $250.80. FedEx derived these figures from his earnings at FedEx without taking into account his earnings from his second job at the pest control company.
Roper then moved the Industrial Commission of Ohio to increase his AWW and FWW to reflect his combined earnings from FedEx and the pest control company. The district hearing officer did so based on the "special circumstances" provision of R.C. 4123.61, increasing his AWW award to $417.05 and his FWW award to $457.36. The Franklin County Court of Appeals eventually affirmed the order.
The Ohio Supreme Court similarly affirmed, holding that the AWW, as the basis for benefit computation, "should approximate the average amount that the claimant would have received had he continued working after the injury as he had before the injury." The Court further stated that, while R.C. 4123.61 refers to the "average weekly wage for the year preceding the injury," the formula may be discarded if the AWW cannot justly be determined by applying the formula. When this occurs, the statute provides that the administrator for the Bureau of Workers' Compensation "shall use such method as will enable the administrator to do substantial justice to the claimants." Id.
To no avail, FedEx argued that the inclusion of wages from other, concurrent jobs would create a disincentive for claimants to return to work. FedEx also argued that secondary wages should be excluded entirely, or in the alternative that they be limited to situations where the two jobs are similar in character. In response to FedEx's first argument, the Court noted that R.C. 4123.56(A) expressly prohibits temporary total disability payments when the employer makes work available to the employee in a manner that is within his or her physical capabilities, or when another employer does so. The court, in dispensing with the second argument, noted that R.C. 4123.61 "refers to wages earned in the year prior to injury without qualification or exclusion." The court also noted that similar jobs can also have disparate earnings. Thus, limiting AWW awards to jobs which are similar in nature would not necessarily eliminate the wage differential which could potentially exist.
FedEx also challenged the amount of the FWW the Commission awarded to Roper. The Court also upheld this amount, giving broad deference to the Commission's calculation relying on Joint Resolution No. R80-7-48, issued by the Industrial Commission and Bureau of Workers' Compensation. The resolution states that the full weekly wage equals "the gross wages (including overtime pay) earned over the aforementioned six week period divided by six" or "the employee's gross wages earned for the seven days prior to the date of injury, excluding overtime pay," whichever is higher. The Court found that the Commission did not abuse its discretion in using the first formula to calculate Roper's FWW amount.
As a result of this case, employers need to understand that AWW and FWW awards must include all of an injured worker's income from the year prior to the injury from all employers. In addition, employers need to offer employment within the physical capabilities of the injured worker as soon as possible so as to minimize temporary total compensation payments.
*Scott Coghlan, the chair of the firms' Workers' Compensation Group, has extensive experience in all aspects of workers' compensation law. For more information about workers' compensation compliance, please contact Scott at 216.696.4441 or sc@zrlaw.com.
Unions Winning a Higher Percentage of Representation Elections, but the Numbers Don't Tell the Full Story
By Jon M. Dileno*According to National Labor Relations Board ("NLRB") data, unions won 68.5 percent of representation elections conducted by the NLRB in 2009. This is up from the prior year's 66.9 percent and represents the highest win rate since 1955 when unions won 67.6 percent of the elections in which they participated. The 2009 union election win-rate represents more than a ten percent increase since 2004, although unions have won more representation elections than they have lost in each of the past 13 years.
While the union win-rate increased in 2009, the number of voters eligible to participate in the elections decreased from 2008. Additionally, the NLRB conducted 1,293 elections in 2009 as compared to 1,612 in 2008, with the number of elections in 2009 (1,293) being nearly half the number of elections conducted in 1996 (3,300). Thus, while unions are winning at a greater percentage, the dramatic decrease in elections has resulted in a corresponding decrease in the actual number of elections they are winning.
Notably, these NLRB statistics do not reflect the full extent of organizing by labor unions. Many unions organize through check-card recognition, neutrality agreements, and methods other than NLRB-run, secret ballot elections. These statistics should encourage all non-union employers to review and revise workplace policies related to union organizing and monitor their workplaces for potential union organizing efforts.
*Jon M. Dileno practices in all areas of labor and employment law, with a focus on private and public sector labor law. For more information on NLRB statistics or any other labor or employment issue, contact Jon at 216.696.4441 or jmd@zrlaw.com.
Taking It All Off: Are employers required to pay employees for changing clothes?
By Patrick M. WattsRecently, the Department of Labor ("DOL") issued yet another opinion letter regarding whether changing clothes at the beginning or end of the workday is compensable time under the Fair Labor Standards Act ("FLSA"). The DOL also addressed whether changing clothes could be considered a "principal activity" under the Portal to Portal Act making compensable all employee activities that occur after the changing of clothes at the beginning of the workday.
What are clothes?
The FLSA provides that when determining hours worked by an employee, the employer shall exclude "time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement…" 29 U.S.C. §203(o). The DOL has issued five (5) opinion letters over the past fifteen (15) years regarding the meaning of this provision and the meaning of "clothes." In one opinion letter, the DOL concluded that "clothes" did not include protective equipment such as: mesh aprons, plastic belly guards, mesh sleeves, plastic arm guards, wrist wraps, mesh gloves, runner gloves, polar sleeves, rubber boots, shin guards and weight belts. See Wage and Hour Opinion Letter, December 3, 1997. Later, the DOL revised its view of "clothes" and determined that "clothes" included protective gear. See Wage and Hour Opinion Letter, FLSA 2002-2.
In its most recent opinion letter, the DOL retreated to its previous position and now advises that "clothes" do not include protective gear. In support, the DOL cited to the legislative history of the law and also to current court cases which conclude that protective gear are not clothes. In citing the legislative history, the DOL noted that during Congressional debate on this provision an example of bakery employees was utilized to explain the purpose of this provision. The DOL concluded that the example of bakery employees changing "clothes" was incompatible with meatpackers or employees changing protective gear. Moreover, the DOL cited to three cases which concluded that, among other things, helmets, smocks, plastic aprons, arm guards, gloves, hooks, knife holders, sanitary and safety equipment, and protective equipment did not constitute "clothes." As a result, the DOL advises that time spent changing protective gear or equipment is not exempt from compensable time based on the express terms of or by custom or practice of a collective bargaining agreement as provided by 29 U.S.C. §203(o). The DOL disavowed any previous opinion letter which is inconsistent with this most recent opinion.
Can the workday start when the employee is changing clothes?
The DOL determined that changing clothes may be a principal activity. The DOL first noted that the language of §203 assumes that changing clothes can be a principal activity because that section states that "time spent in changing clothes or washing at the beginning or end of each workday…" The DOL concluded that the language itself assumes that the changing of clothes, while exempt from compensability in some cases, remains part of the workday. The DOL also cited to several court cases which addressed this issue. Many of these courts concluded that simply because the activity was not compensable did not also mean that the activity could not be considered the start of the workday. One court noted that although changing clothes may not be compensable under the FLSA, "it does not affect the fact that these activities could be the first 'integral and indispensable' act that triggers the start of the continuous workday…" As a result, the DOL concluded that changing clothes, even when not compensable, may still be a principal activity which effectively starts the workday.
Notably, the DOL did not opine that changing clothes will always be non-compensable or that changing clothes will always be a principal activity. Employers must consider a variety of factors to answer these questions, including whether there is a custom or practice or express language within a collective bargaining agreement and also whether changing clothes is an integral and indispensable act to an employees job. If you need assistance analyzing these or any FLSA compliance issues, please contact us.
Child's Play: U.S. Department of Labor issues final child labor regulations
By Michele L. Jakubs*The United States Department of Labor (DOL) final regulations concerning child labor took effect on July 19, 2010. The regulations govern the employment of children for non-agricultural jobs. The final regulations incorporate statutory amendments to the Fair Labor Standards Act (FLSA) and specific recommendations made by the National Institute for Occupational Safety and Health and give employers clear notice of jobs that children may not perform.
The FLSA requires workers be at least 16 years old to work in non-agricultural occupations. However, the DOL deems certain occupations suitable for workers between 14 and 15 years old. For example, prior to the regulations, 14- and 15-year olds could work in retail, food service, and gasoline service establishments. With the new regulations, permissible occupations for workers ages 14-15 now include: office and clerical work, computer programming, writing software, tutoring, serving as a peer counselor or teacher's assistant, singing, playing a musical instrument, cashiering, modeling, price marking, assembling orders, packing and shelving, bagging and carrying out customer orders, kitchen work, and other food, beverage prep and service work. Fifteen year olds can also work as lifeguards.
The new regulations make clear that any job not specifically permitted for 14- and 15-year olds is prohibited. The regulations also include a non-exhaustive list of prohibited occupations including: manufacturing, mining, processing, working with a hoisting apparatus, working with power-driven machinery such as lawn mowers and golf carts, all work requiring the use of ladders or scaffolds, and occupations in warehousing, storage, communications, public utilities or public messenger services. Fourteen and 15-year olds also are prohibited from door-to-door "street" sales. However, charitable or fundraising efforts, such as selling cookies for the Girl Scouts or school fundraisers, are exempt from this provision.
The new regulations also clarify times and maximum number of hours 14- and 15-year olds may work. From June 1st through Labor Day, 14- and 15-year olds may work between the hours of 7 a.m. and 9 p.m. They may work a maximum of 8 hours per day and no more than 40 hours in one week. When school is in session, 14- and 15-year olds may work between 7 a.m. and 7 p.m. Additionally, during the school year they may not work more than 3 hours per day or 18 hours per week.
The new regulations also expand prohibitions for workers between the ages of 16 and 18. The prohibited occupations for workers between ages 16 and 18 now include: working with, tending, riding upon, repairing, servicing or disassembling an elevator, crane, manlift, hoist or high-lift truck; and working with chain saws, reciprocating saws, wood chippers and abrasive cutting discs.
The regulations also increase the penalties for child labor violations. Violators can be subject to a civil penalty between $11,000 and $50,000 for each violation and $100,000 for repeated or willful violations. The regulations also add a new penalty for causing death or serious injury to an employee under the age of 18. "Serious injury" is defined as:
- Permanent loss or substantial impartment of one of the senses (sight, hearing, taste, smell, tactile sensation);
- Permanent paralysis or substantial impairment of the function of a bodily member, organ, or mental faculty, including the loss of all or part of an arm, leg, foot, hand, or other body party; or
- Permanent paralysis of substantial impairment that causes loss of movement or mobility of an arm, leg, foot, hand or other body part.
In addition to the above, the regulations also include new work-study programs for workers aged 14-15. As a result of these new regulations, this may be a good time for employers to revisit their child labor policies and make any necessary changes.
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of employment litigation and FLSA compliance. For more information about complying with child labor laws, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
Z&R Shorts
Welcome Stefanie L. Baker
Zashin & Rich Co., L.P.A. is pleased to announce the addition of Stefanie L. Baker to its Employment and Labor Group.
Stefanie's practice encompasses all areas of public and private labor and employment issues.
Stefanie earned a B.A. with honors from Miami University. She earned her law degree (J.D.) with honors from Cleveland-Marshall College of Law. During law school, Stefanie served as Editor-in-Chief of the Journal of Law and Health. She was also a member of Moot Court and completed an externship with the Honorable Christopher A. Boyko of the Northern District of Ohio. Stefanie is admitted to practice law in the State of Ohio. She is a member of the Ohio State Bar Association, the Cleveland Metropolitan Bar Association, and the Cleveland-Marshall Law Alumni Association.
Please join us in welcoming Stefanie to Z&R!
Congratulations to Patrick J. Hoban
Zashin & Rich Co., L.P.A. would like to congratulate Patrick J. Hoban on his recent certification by the Ohio State Bar Association as a Specialist in Labor and Employment law. Pat fulfilled several requirements to earn this specialty certification, including demonstrating a substantial and continuing involvement in Labor and Employment law. Congratulations Pat!
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