Ohio Employment Law Update

Transcription

1 Employment Law Update 2011 August 4, 2011 Ohio Employment Law Update Alison Day, Esq. Littler Mendelson, P.C.

2 Ohio s Intentional Tort Statute Upheld In two companion cases, Kaminsky v. Metal & Wire Products Co.,No Ohio 1027, and Stetterv. R.J. CormanDerailment Services, L.L.C., No Ohio 1029, the Ohio Supreme Court upheld the constitutionality of a state law limiting workers claims against their employers for their on-the-job injuries Workers may receive workers compensation benefits for on-the-job injuries They may NOT sue their employers unless they can show the employer acted with deliberate intent to cause injury

3 Finally! This issue has been in question since 1991 The court s ruling will keep the bar high for plaintiffs: surviving summary judgment proving their claims

4 Is Maternity Leave Required Under Ohio Law? Employer s policy stated no employee was entitled to leave until employed for 12 months Eight month employee took leave related to pregnancy and was fired Ohio regulations state firing is unlawful sex discrimination if caused by policy providing insufficient maternity leave

5 No Mandatory Maternity Leave In McFeev. Nursing Care Mgt. of Am., Inc.(Ohio 2010), 2010 Ohio 2744, the Ohio Supreme Court ruled that it does not constitute sex discrimination to terminate an ineligible employee for taking pregnancy related leave

6 No Mandatory Maternity Leave The Court found that Ohio law does not provide greater protections for pregnant employees than nonpregnant employees Mandating maternity leave would result in favoritism A pregnancy-blind leave policy is not direct evidence of discrimination The case does not affect employers obligations to provide leave under the FMLA

7 Above All, Be Neutral If opting to provide maternity leave regardless of time worked, consider parental leave If uniform policy requires one year of service, make sure to accommodate disabilities regardless of time worked

8 Ohio Military Family Leave Act Effective on July 2, 2010 The OMFLA is codified at Ohio Revised Code Chapter 5906 Employers with 50 employees must provide two weeks (lesser of 10 days/80 hours) unpaid leave to employee whose spouse or child is a member of uniformed services and is deployed on active duty or injured

9 Ohio Military Family Leave Act Once each calendar year Employee must first exhaust all available leave except sick or disability leave An employee cannot waive his/her rights under the OMFLA

10 Ohio Supreme Court Limits Public Policy Claims Related to Workers Compensation Injuries On June 9, 2011, the Ohio Supreme Court issued its opinion in Sutton v. Tomco Machining, Inc., 2011 Ohio 2723 The plaintiff in Suttonsuffered a work-related injury, but was terminated before he was actually able to file a workers compensation claim Plaintiff sued, advancing a public policy claim premised on the fact that he was wrongfully terminated, in violation of the spirit of Section , because he was fired before he was able to physically file a workers compensation claim

11 Sutton v. TomcoMachining, Inc. In Sutton,the Ohio Supreme Court recognized a limited, common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after injury on the job but before the employee files a workers compensation claim or institutes or pursues a workers compensation proceeding

12 Sutton v. TomcoMachining, Inc. The public policy wrongful termination claim in Sutton applies only to those individuals who are fired before they file a workers compensation claim... it fills the gap... in the language of the statute for conduct that occurs between the time immediately following injury and the time in which the claim is filed, instituted, or pursued

13 Sutton v. TomcoMachining, Inc. Sutton also holds that the remedies available for the tort (of public policy wrongful termination) are limited to those provided by R.C To the extent a Plaintiff can establish a public policy claim under Sutton, he/she is not entitled to tort remedies

14 Ohio Appellate Court Holds That Discrimination Claims Are Subject To Ohio Damages Caps In Tort Actions In Luriv. Republic Services( th App. Dist.), 2011 Ohio 2389, the 8 th District Appellate Court concluded that employment discrimination claims under ORC 4112 are subject to Ohio s damages caps in tort actions In such actions, punitive damages are capped at twotimes the compensatory award

15 N.D. Ohio Reinforces 300-day Statute of Limitations For EEOC Claims Following a public hearing on the use of credit histories as selection criteria in employment, EEOC filed suit in the N.D. of Ohio against Kaplan, alleging that its use of credit histories discriminated against African-Americans as a class

16 EEOC v. Kaplan On May 10, 2011, the District Court limited the EEOC spotential class and barred EEOC from seeking relief for any employment decisions that occurred more than 300 days prior to the filing of the charge Equal Employment Opportunity Commission v. Kaplan Higher Education,Case No. 1:10-cv-2882 (N.D. Ohio May 10, 2011)

17 EEOC v. Kaplan EEOC had argued that its right to remedy statutory violations does not depend on the same limitations that apply to individual plaintiffs, because it proceeds primarily in the public interest The N.D. of Ohio held that EEOC claims pursued under 707 must proceed in accordance with the time limitations of 706

18 EEOC v. Kaplan Although plaintiff argues that courts have held that the time limitation of 706(e)(1) does not apply to pattern or practice suits under 707, the Court respectfully disagrees with the reasoning of those decisions

19 Ohio Appellate Court Upholds Termination of Hospital Employee Caught Using Cell Phone at Work Strodtbeck v. Lake Hosp. Sys. Inc. (11 th App. Dist. 2011), 2011 Ohio 2327 Hospital fired an emergency department technician after he was caught using his cell phone s camera to photograph a patient The employee claimed he took the picture to document what he believed was the patient s mistreatment, which he wanted to call to the Hospital s attention

20 Strodtbeck v. Lake Hosp. Sys. Inc. (11 th App. Dist. 2011), 2011 Ohio 2327 The Hospital argued that it was against Hospital policy for the employee to use his camera in the workplace The 11 th District Agreed: Strodtbeck failed to assert a specific and clear public policy preventing an employer from discharging an employee for alerting a patient to potential mistakes a hospital may have made when providing treatment

21 Senate Bill 5 Collective Bargaining: Restricts collective bargaining to wage issues for Ohio public sector employees Safety Equipment: Allows police and fire officials to negotiate for safety equipment Traffic Tickets: Prohibits linking patrol officer evaluations to how many citations they write

22 Senate Bill 5 Health Care: Requires public workers to pay at least 15 percent of their health care coverage Merit-Based Pay For Teachers: Ohio's 146,000 primary and secondary school teachers will be evaluated largely based on how their students did on standardized testing along with other more subjective criteria Pension Pickups: Ohio governments cannot offer so called "pension pickups" where the governmental unit pays a portion of the ten percent employees are supposed to contribute to their pensions

23 Senate Bill 5 Binding Arbitration: Eliminates binding arbitration and creates an alternative allowing contracts in some cases to go to voters if they cost more Decertification: Makes it easier to end union representation by lowering the percentage of workers needed to trigger such a move

24 Senate Bill 5 Payroll Deductions: Prohibits any public employer from providing a payroll deduction for contributions to a union political action committee without first having written permission from the employee Dues: Employees who do not want to join a union but nonetheless still receive the same wages and benefits spelled out in the union contract no longer have to pay "fair share" dues Strikes: Prohibits public union workers from striking, though workers who strike illegally will not be subjected to jail time because lawmakers dropped proposed contempt of court penalties from an earlier version of the bill

25 Senate Bill 5 Governor Kasich signed the Bill into law on March 31, 2011 However, opponents of the Bill collected 1.3 million signatures, and the Bill will now appear on the November ballot The Bill cannot go into effect unless it survives the November referendum

26 Questions & Answers

27 Employment Law Update 2011 August 4, 2011 Alison Day, Esq. Littler Mendelson, P.C.