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« Older EntriesDual Jurisdiction – Ohio Workers’ Compensation
May 17th, 2013
in Employment & Benefits, Expert Guest Blog Entries |
Expert Article by Brian A. Tarian
Ohio Revised Code 4213.542 does not permit the filing of a workers’ compensation claim in Ohio if a claimant or the dependents involved in a workers’ compensation claim have been granted an allowed claim in another state. In Smiley v. Professional Staff Mgt. Inc., 2013-Ohio-139, the claimant was involved in a motor vehicle accident while in the performance of her job duties. The claimant worked for a property management company as a regional manager. The claimant was responsible for overseeing and managing properties in both Ohio and Indiana. The claimant’s employer was located in Indiana. The claimant resided in Ohio. The employer filed a claim for the claimant in Indiana. This claim was allowed and both medical bills and compensation were paid in this claim.
Later, the claimant filed a claim in Ohio. This claim was denied by the Industrial Commission of Ohio pursuant to ORC 4123.542. The claimant appealed the denial of this claim to Common Pleas Court who ruled that this denial was proper. The claimant then appealed this decision to the Court of Appeals who upheld this decision. It did not agree that this statute was unconstitutional as argued by the claimant and upheld the decision of the lower court.
To date, all challenges to ORC 4123.542 have been struck down. This case provides the precedence that this statute also applies even when the claimant does not file the claim in another state and this filing results in an allowed claim in that state.
Governor Brown Proposes To Reform Proposition 65
May 9th, 2013
in Expert Guest Blog Entries, Healthcare, Litigation, Regulatory & Compliance |
Expert Article by Office of Governor Edmund G. Brown Jr.
Governor Edmund G. Brown Jr. today proposed reforms to strengthen and restore the intent of Proposition 65, a three decade old law enacted to protect Californians from harmful chemicals, that has been abused by some unscrupulous lawyers driven by profit rather than public health.
The administration, through the California Environmental Protection Agency, will work closely with the Legislature and stakeholders to revamp Proposition 65 by ending frivolous “shake-down” lawsuits, improving how the public is warned about dangerous chemicals and strengthening the scientific basis for warning levels.
“Proposition 65 is a good law that’s helped many people, but it’s being abused by unscrupulous lawyers,” said Governor Brown. “This is an effort to improve the law so it can do what it was intended to do – protect Californians from harmful chemicals.”The package of reforms will build on legislative efforts already underway, including a proposal to limit frivolous lawsuits.“Proposition 65 serves a vital public interest. It provides the public with information about carcinogens and toxins that may be present in the products we use in our everyday lives. But for Prop 65 to be effective, this information must be clearly stated and we need to work with the Legislature to prevent groups from exploiting or misconstruing this information for their own personal gain,” said California EPA Secretary Matt Rodriquez.
Voters approved Proposition 65 in 1986. The measure requires the Governor to annually publish a list of chemicals known to the state to cause cancer or reproductive toxicity. If a business in California sells a product containing chemicals listed by the state in excess of safe levels, the business must provide a clear warning to the public. Similar provisions apply to California workplaces.
The administration, stakeholders and the Legislature will discuss reforms to:
• Cap or limit attorney’s fees in Proposition 65 cases.
• Require stronger demonstration by plaintiffs that they have information to support claims before litigation begins.
• Require greater disclosure of plaintiff’s information.
• Set limits on the amount of money in an enforcement case that can go into settlement funds in lieu of penalties.
• Provide the State with the ability to adjust the level at which Proposition 65 warnings are needed for chemicals that cause reproductive harm.
• Require more useful information to the public on what they are being exposed to and how they can protect themselves.
While Proposition 65 has motivated businesses to eliminate or reduce toxic chemicals in consumer products, it is also abused by some lawyers, who bring nuisance lawsuits to extract settlements from businesses with little or no benefit to the public or the environment.
Under provisions of Proposition 65, a private attorney can bring a complaint against a business if the business knowingly exposes consumers to state-noticed chemicals.
Since 2008, nearly 2,000 complaints have been filed by these “citizen enforcers.”
In one case, Consumer Defense Group Action brought 45 Proposition 65 notices of violation against banks based on second-hand smoke near bank entrances or ATMs. The group claimed that the banks had failed to post warnings, and alleged that the banks controlled the behavior of smokers in those areas. In responding that there was no basis for the claim and misrepresentations within the notices, the Attorney General warned that the group’s notices could “constitute unlawful business practices.”
Governor Brown’s proposed reform follows a strong record of pursuing regulatory changes to improve the state’s business climate. Since taking office in 2011, the Governor has approved legislation to improve the workers’ compensation system, the regulatory and fee structure for the timber industry, Americans with Disabilities Act (ADA) compliance requirements and the facility inspection process for the life sciences industry. In addition to these legislative actions, Brown has established the Governor’s Office of Business and Economic Development (GO-Biz) to help companies deal with regulatory “red tape.”
Tags: Expert Article, Healthcare, Litigation, Proposition 65, Regulatory & Compliance
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OSHA States that Union Representatives Can Participate in Inspections of Non-Union Workplace
April 23rd, 2013
in Employment & Benefits, Expert Guest Blog Entries |
Expert Article by Nathan Pangrace
In an interpretation letter released on April 5, 2013, OSHA stated that employees in a non-union facility may select a non-employee who is affiliated with a union to act as their representative during OSHA’s walk-around inspection of the employer’s worksite. OSHA issued the letter in response to a question from a health and safety specialist of the United Steelworkers Union.
By way of background, OSHA regulations provide that employees may designate a representative to accompany the OSHA compliance officer during the physical inspection of any workplace. The regulations recognize that in most cases the representative will be an employee of the employer. However, the compliance officer also has authority to permit a non-employee third party to be present during the inspection whenever it is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”
The new OSHA interpretation letter specifically recognizes that non-union employees may select a union representative to accompany the compliance officer during the inspection. OSHA reasoned that union representatives could make an important contribution to the inspection through their experience evaluating similar working conditions in different plants. OSHA also noted that workers in some situations may feel uncomfortable talking to a compliance officer without “the trusted presence of a representative of their choosing.” OSHA even went so far as to rescind an older interpretation letter that may have conflicted with its new position on this issue.
Clearly, non-union employers should be concerned about this policy, which may encourage union representatives to use OSHA as an organizing tool. The policy creates an opportunity for union representatives to make contact with non-union employees at their workplace and promote the benefits of organizing and collective bargaining. So, what can non-union employers do to keep employees from selecting a union representative to speak for them during an OSHA inspection? The safest course is to encourage employees to become actively involved in workplace safety issues. For example, employers can create a safety committee and invite employees to join the committee. Employees who are already involved in safety issues will be less likely to reach out to a union representative when an OSHA inspection occurs.
A legal battle is anticipated regarding OSHA’s new policy. In the meantime, Roetzel will keep you updated on new developments in this important issue.
Tags: Employers, Non-union, OSHA
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Seemingly Harmless Provision in a Severance Agreement Can Place Your Non-Compete Into Jeopardy
April 12th, 2013
in Employment & Benefits, Expert Guest Blog Entries |
Expert Article by Emily Wilcheck
A recent case out of the Sixth District Court of Appeals in Ohio demonstrates how easily a few words (or the absence of a few words) in a severance or separation agreement can place a carefully crafted non-competition agreement into jeopardy. In Try Hours v. Douville, 2013-Ohio-53, an employer found itself battling a terminated employee to enforce a covenant not to compete that the employee argued was superseded by an integration clause within the employee’s separation agreement. Although the employer ultimately prevailed in this particular instance, the case demonstrates how easily an employer could unwittingly terminate an otherwise binding non-competition clause in the course of severing an employment relationship.
In the Douville case, the employer was involved in the expedited freight industry. Due to the highly competitive nature of this industry, the employer required employees to agree to a non-competition clause that was included within their employment agreements. The plaintiff in Douville signed an employment agreement containing such a clause agreeing not to engage directly or indirectly in any position with a competitor for a period of one year following the termination of his employment.
The employer in Douville later terminated the plaintiff on the basis that the plaintiff was not a good fit for the organization. The parties executed a separation agreement, which entitled the plaintiff to certain severance payments in exchange for a release of claims. The separation agreement included the following integration clause:
“The parties agree that this Agreement constitutes the entire Agreement between the parties as to the subject matter of this Agreement and no prior or subsequent oral Agreements, representations, or understandings shall be binding upon the parties and such shall be null and void and shall have no effect.”
The separation agreement did not include any reference to the non-competition clause from the employment agreement.
Shortly after his termination, the Douville plaintiff began working for a competitor believing that his separation agreement had superseded the employment agreement and voided the covenant not to compete. The former employer sued, seeking to enforce the one-year covenant not to compete. The Court narrowly found for the employer, holding that the reference to “the subject matter of this Agreement” within the integration clause limited the clause to the benefits the employer was willing to provide to the plaintiff in exchange for his release of any and all claims he may have had against the employer stemming from his employment. Additionally, the Court found that the clause only excluded prior or subsequent “oral Agreements, representations or understanding.”
Without these two limiting phrases, the result could have been entirely different for this employer. This case is a reminder to employers to carefully review the provisions of any such integration clauses in your separation or severance agreements to ensure that you are not inadvertently voiding otherwise binding non-competition and non-solicitation agreements.
March Madness – Productivity Drain or Morale Booster?
April 2nd, 2013
in Employment & Benefits, Expert Guest Blog Entries |
Expert Article by Alexander Kipp
As the 2013 NCAA Men’s Basketball Tournament enters its second weekend of competition, many employers are asking themselves: What kind of impact does March Madness have on employee productivity? While most employers assume, and many experts agree, that March Madness is a productivity drain, an equal amount of experts say that March Madness can boost employee morale and contribute to productivity.
According to a survey by outplacement firm Challenger, Gray & Christmas, employees spend an average of one to three hours a day watching the basketball tournament during March Madness and checking scores, instead of working. CEO John Challenger estimates the goofing off costs employers $134 million in “lost” work during the first two days of the tournament. “People will be organizing office pools, researching teams and planning viewing parties,” he says. “When the games begin, many companies will probably notice a significant drop in Internet speeds, as employees start streaming games and clogging up the network’s bandwidth.” According to a survey conducted by MSN and Impulse Research, 86% of all American workers will devote at least some time during their working hours to the games, and 16% of workers expect to spend five hours or more following the tournament.
However, while March Madness may waste millions of employee hours (and millions of dollars), another survey conducted by OfficeTeam indicates that this isn’t necessarily a bad thing. “When enjoyed in moderation, there are potential benefits to March Madness activities at work,” says Robert Hosking, executive director of OfficeTeam, a staffing service specializing in the placement of highly skilled administrative professionals. “They can be a morale-booster and bring out team spirit in the office. It provides an opportunity for employees to bond as they talk about scores and root for their favorite schools.”
OfficeTeam asked more than 1,000 managers whether March Madness festivities in the office, such as watching game highlights or engaging in friendly competitions, affect morale and productivity. One in five (20%) felt activities tied to the college basketball playoffs boost employee morale at least somewhat, compared to only 4% of respondents who viewed them negatively. The majority (75%), however, said the Big Dance has no impact — positive or negative — on morale or productivity.
“[These festivities] may actually keep workers on track by providing them with much-needed breaks,” Hosking says. “Most companies realize that employees who participate in March Madness activities will still likely get their assignments completed — they’ll just compensate for time spent on non-work tasks by shifting their hours or staying late.”
He says it’s often smarter for managers to acknowledge the appeal of events like March Madness and provide opportunities for their staff to enjoy the festivities, rather than ignore them. Why? “Employees need a chance to bond with co-workers over shared interests,” he says.
OfficeTeam offered five tips to help companies celebrate March Madness while keeping employees’ heads in the game. Here’s what they suggest:
1. Grant time-outs. Allowing employees to take quick breaks to check scores or chat with coworkers about the tournament can help them recharge. An informal lunch or dinner at a restaurant to watch a big game also can build camaraderie.
2. Foster friendly competition. Let staff wear their favorite teams’ apparel or decorate their workspaces, within reason, to get in the spirit. Consider organizing an office competition where individuals can win bragging rights or small items such as company-awarded gift certificates without the exchange of money.
3. Go over the rules. Clearly communicate policies regarding employee breaks and Internet use so professionals know what’s acceptable when it comes to March Madness and other non-work activities.
4. Take the lead. Set a good example by showing how to participate in tournament festivities without getting sidelined from responsibilities. If you complete assignments before talking hoops, employees will likely follow suit.
5. Evaluate your bench. If team members want to take time off to watch the playoffs, ask them to submit requests as far in advance as possible. This will help you manage workloads and determine if interim assistance is needed to keep projects on track.
Court Issues Ruling in Lawsuit Over LinkedIn Profile
March 28th, 2013
in Employment & Benefits, Expert Guest Blog Entries |
Expert Article by Jon Secrest
Linda Eagle filed a lawsuit in federal court in Pennsylvania alleging claims under the Computer Fraud and Abuse Act (“CFAA”) and various state law claims. Eagle v. Morgan, 2013 WL 943350 (E.D. Pa. 2013). The federal court previously dismissed the federal claims under the CFAA but permitted the state law claims to stand. Now, the court has issued a ruling on the state law claims.
Linda Eagle (“Eagle”) was president of Endcomm when it was acquired by another company in 2010. Shortly after, Eagle was terminated. Prior to her termination, Eagle shared her LinkedIn account information with another employee and permitted that employee to access her account and update her profile. The dispute began when that employee changed the password on the LinkedIn account after Eagle’s termination. Eagle’s name and picture were then replaced with the name and picture of her successor. A portion of Eagle’s honors and awards remained on the profile but were now attributed to her successor.
On March 12, the federal court ruled in Eagle’s favor on her claims for unauthorized use of name, invasion of privacy, and misappropriation of publicity. The court determined that Eagle had a privacy interest in her name, picture, resume, and that her name “had the benefit of reputation, prestige, and commercial value within the banking education industry.” The court found significant that someone searching for Eagle on LinkedIn “would be unwittingly directed to a page with information about” her successor.
Eagle’s victory was hollow, however, as the court determined she suffered no economic loss as a result of the misconduct. Accordingly, the court did not award Eagle any damages. Edcomm brought counterclaims against Eagle, one of which alleged that Eagle misappropriated the LinkedIn account as her own when in fact it was Edcomm’s property. The court stated, “Edcomm never had a policy of requiring its employees use LinkedIn, did not dictate the precise contents of an employee’s LinkedIn account, and did not pay for its employees’ LinkedIn accounts.”
The lesson from this case is that employers need social media policies that clearly define who owns company-related accounts and who is permitted access to company-related accounts. Such policies should address these issues for both current and former employees.
Ohio Workers’ Compensation – Dual Recovery Limited to Claims Prior to September 11, 2008
March 21st, 2013
in Employment & Benefits, Expert Guest Blog Entries |
Expert Article by Brian Tarian
On June 18, 1998, the claimant was an Ohio resident and was employed by Navistar, an Ohio self-insured employer. While at an event held by his employer in New Jersey the claimant was injured. Navistar filed a workers’ compensation claim for the claimant in New Jersey that was allowed in that state. The claimant received a permanent partial award in 2003 and after that time, Navistar paid for medical treatment under this claim.
At the time of this injury, Ohio Revised Code (ORC) 4123.54 permitted injured workers’ to file workers’ compensation claims in more than one state. In 2008, Ohio statutes were changed to prohibit this. ORC 4123.54 and 4123.542 became effective on September 11, 2008 and these new statutes preclude a claimant from filing a claim in Ohio if one has obtained an allowed claim in another state. On March 11, 2009 the claimant filed a claim in Ohio. The Industrial Commission denied this Ohio claim as being barred by the new statutes. The claimant appealed this denial to Common Pleas Court. The claimant argued that the new statutes could not be applied retroactively and that the claimant had the established right to file this claim. Nevertheless, Navistar filed a motion for summary judgment asking that this claim be barred per the new statutes and this motion was granted.
The claimant appealed to the Court of Appeals and in John W Saxton v. Navistar, 2013-Ohio-352, it was decided that the claimant was not barred from filing the new claim under the new statutes. This court relied upon State ex re. Jeffrey v. Indus. Comm., 164 Ohio St 366 to rule “The right of an injured employee to compensation and medical benefits under the Workers’ Compensation Act is governed strictly by the provisions of that act and may not be changed by the Industrial Commission or even the General Assembly subsequent to the accrual of the right. The right to payment for medical and hospital expenses is a substantive right, measured by the provisions of the act in force at the time the action accrues, which is the time the injury is received.” As the employer had raised other issues as part of its defense of this claim and the trial court had not ruled on them, this case was remanded back to the trial court to address them. These issues included whether or not this claim was barred by ORC 4123.84 as not being filed within two years of the date of injury in Ohio. So we will have to wait to see how this case is finally decided as it will probably be returning to this Court of Appeals.
U.S. Citizenship and Immigration Services Releases New Form I-9
March 14th, 2013
in Employment & Benefits, Expert Guest Blog Entries |
Expert Article by Klodiana Tedesco
In March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) revealed the newly revised Employment Eligibility Verification form, Form I-9, with a revision date of “(Rev. 03/08/13) N.” The newly revised Form I-9 makes several improvements designed to minimize errors in form completion. The new Form I-9 has added new data fields, including the employee’s foreign passport information (if applicable) and telephone and email addresses, it has improved the form’s instructions, and revised the layout of the form, which now has two pages.
Employers are required to begin using the new Form I-9 immediately to verify the identity and employment authorization eligibility of new employees. However, because USCIS recognizes that employers may need some time to update their systems, forms and practices, it is providing employers 60 days to make necessary changes. AFTER MAY 7, 2013, ALL PRIOR VERSIONS OF FORM I-9, (Rev. 08/07/09) Y and (Rev. 02/02/09) N, CAN NO LONGER BE USED BY THE PUBLIC. After May 7, 2013, employers who fail to use Form I-9 (Rev. 03/08/13) N may be subject to fines and penalties imposed by U.S. Immigration and Customs Enforcement (ICE) and the Department of Justice (DOJ).
Employers do not need to complete the new Form I-9 (Rev. 03/08/13) N for current employees for whom there is already a properly completed Form I-9 on file, unless re-verification applies. Unnecessary verification may violate the anti-discrimination laws enforced by DOJ’s Office of Special Counsel for Immigration Related Unfair Employment Practices.
Employers can download the new Form I-9, related instructions, and information at www.uscis.gov/I-9Central, or order forms by calling 1-800-870-3676.
Tags: Expert Article, Klodiana Tedesco, Roetzel & Andress
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Klodiana B. Tedesco
March 14th, 2013
in Employment & Benefits, Expert Guest Blog Entries |
Biography
Ms. Tedesco is a member of the firm’s employment services group. She focuses her practice on all aspects of employment-sponsored immigration, such as compliance with the Immigration Reform and Control Act (IRCA), requirements of Form I-9, the use of E-Verify, and general compliance with other related federal statutes. She represents and advises corporations and organizations in the filing of nonimmigrant and immigrant petitions with the Citizenship and Immigration Services and the Departments of Labor and State and provides counsel on the transfer of key foreign personnel for assignments to the U.S. In addition, she assists clients with other employment related matters, including representation through all stages of litigation, on employment issues ranging from sexual harassment claims to alleged violations of the Fair Labor Standards Act (FLSA). Ms. Tedesco is also experienced in assisting in trial preparation, motion practice and legal research.
Prior to joining Roetzel’s employment services group, she practiced in the area of general litigation at the trial and appellate court levels, where she assisted in obtaining numerous dismissals of complaints, grants of summary judgment and appellate victories on behalf of the firm’s clients.
Originally from Albania, Ms. Tedesco immigrated to the United States in 1998. She has lived and studied extensively in Europe. Before earning her juris doctorate, she worked for a German-based company advising on internal quality assurance and internal process compliance.
Accomplishments
- Judicial Externship, U.S. District Court for the Southern District of Ohio
- ISO 9001-2000 Lead Auditor Certification
Publications
- “Confusion in Defining “Proceeds” Under the Money-Laundering Statute: A Survey of Circuit Opinions” - Co-author, The Federal Lawyer, Volume 57, Number 5 (June 2010)
Expert Articles
- U.S. Citizenship and Immigration Services Releases New Form I-9 (March 14, 2013)
Contact Klodiana B. Tedesco
Roetzel & Andress
155 East Broad Street
PNC Plaza, 12th Floor
Columbus OH 43215
Phone: (614) 723-2092
Fax: (614) 463-9792
Website: http://www.ralaw.com/
kbasko@ralaw.com
Tags: Expert Biography, Klodiana Tedesco, Roetzel & Andress
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Why Litigation Holds Should Not Be Ignored
March 8th, 2013
in Employment & Benefits, Expert Guest Blog Entries |
Expert Article by Doug Kennedy
A recent decision by U.S. District Judge Geoffrey Frost of Columbus, Ohio, reiterates the importance of companies placing litigation holds upon receiving notice of potential employment actions. In a case filed by the EEOC (Equal Opportunity Employment Commission) against JPMorgan Chase Bank NA in 2009 (case no. 2:09- cv- 00864, U.S. District Court for the Southern District of Ohio), the agency requested that the bank produce certain data maintained in electronic records, specifically information regarding skill login records that would have been kept by the bank’s mortgage unit. The records went back to 2007, and Judge Frost found that a litigation hold on those records should have been initiated upon receipt of notices sent by the EEOC in 2008 involving potential hostile work environment claims brought by female employees who were alleging that they were discriminated against when more lucrative calls were steered towards male workers.
In responses to discovery requested by the EEOC in the lawsuit, the bank claimed that routine purging resulted in the 2007 skill login records being destroyed. Judge Frost called the bank’s failure to preserve those records “inexcusable” and in finding that sanctions against the bank were warranted, characterized the bank’s conduct “at least negligence and {reaching} for willful blindness bordering on intentionality.” The court’s decision should be instructive to companies to immediately place litigation holds on any electronic or other records that might be relevant in a subsequent employment case upon notice of potential claims, either by a governmental agency or a current or former employee. Failure to do so could result in sanctions as discussed here.
Tags: Doug Kennedy, Expert Article, Roetzel & Andress
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