Ohio Employer's Law Blog ~ Ohio Employment Law#header-wrapper, #header, .header, #sidebar-wrapper, .sidebar, .sidebar2, #footer-wrapper, #footer, .date-header, .post-meta-data, .comment-link, .comment-footer, .what-next, #blog-pager, #backlinks-container, #navbar-section, .subscribe_notice, .noprint {display: none;}#main-wrapper {width: 95%} #navbar-iframe { display:block } function setAttributeOnload(object, attribute, val) { if(window.addEventListener) { window.addEventListener("load", function(){ object[attribute] = val; }, false); } else { window.attachEvent('onload', function(){ object[attribute] = val; }); } } Ohio Employer's Law Blog, Ohio Employment Law, Practical employment law information for Ohio businessesHomeAbout KJKPractice AreaBioContact MeArchive skip to main | skip to sidebar2008-08-20Right to reinstatement under USERRA for returning military personnel is absoluteLabels:military status discrimination0commentsIn 1994, Congress enacted USERRA (the Uniformed Services Employment and Reemployment Rights Act), to protect the employment rights of the men and women who serve our country. Although this statute is not litigated as often as Title VII, it is nevertheless important to employers, especially in light of the number of military personnel returning from Iraq and Afghanistan. USERRA guarantees returning veterans a right of prompt reemployment after military service, provided the employee meets five conditions: The employee must provide the employer notice that the employee intends to take leave for military service. The cumulative length of the employee's service cannot exceed five years. If the leave exceeded 30 days, the employee makes timely reapplication for employment. If the leave exceeded 30 days and upon the employer's request, the employee documents the timeliness of the reapplication and the duration of the leave. The employee's separation from military service was under "honorable conditions." If an employee meets these conditions, the employer must promptly reinstate that employee in a position the employee might have reached had it not been for the intervening military service, at the level of pay, benefits, seniority, and status commensurate with that position. What happens, however, if an employee meets these conditions, but the employer has a good faith doubt about the employee's veracity in documenting the leave? Can the employer refuse to reinstate the employee, or reinstate the employee to a lesser position while it sorts out its good faith doubt. According to Petty v. Metropolitan Gov't of Nashville-Davidson Cty. (6th Cir. 8/18/08), the right to reinstatement is absolute, and the employer cannot place conditions upon it if the employee meets all of the statutory requirements. Brian Petty was a patrol sergeant in the Nashville police department prior to his deployment to Iraq. His tour of duty ended prematurely when he was brought up on military charges for bootlegging wine to Kuwaiti natives in exchange for work. In lieu of going forward with a court martial, Petty was permitted to resign “for the good of the service.” The Army accepted his resignation and dismissed all charges against him. Petty had to fill out certain return to work paperwork at the Nashville police department. On that paperwork, he disclosed the charges that were brought against him. He was kept out of work, without pay, for a month while the police department investigated. It ultimately permitted Petty to return to work, albeit at a lesser position, answering phones and filling out paperwork at a desk. He remained at that desk job while the department continued to investigate the veracity of his representations about his military charges. The Court ruled that if an employee meets all of the prerequisites for military leave, reinstatement to the same or similar position is mandatory. It is irrelevant if the employer has a good faith doubt in the veracity of return to work paperwork the employee completes. It is of no consequence here that Metro believes it is obligated to “ensure that each and every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having been absent from the Department.” In USERRA, Congress clearly expressed its view that a returning veteran’s reemployment rights take precedence over such concerns. Metro does not question Petty’s physical qualifications; instead, it questions only whether his conduct during his military service would disqualify him from returning to service in the police department. But Petty’s separation from military service is classified as “under honorable conditions,” which Congress has made clear suffices to qualify him for USERRA benefits. Thus, the police department's doubt, in good faith or not, in Petty's veracity about his military criminal history is irrelevant to his return to work. According to the Court, the employer's intent in not restoring the employee to his prior position is also irrelevant to the reemployment claim: It is important to note that Petty was not required to make any showing of discrimination in order to sustain either of his reemployment claims. ... Section 4313 states that any “person entitled to reemployment under section 4312” — which we have found Petty to be — “shall be promptly reemployed in a position of employment in accordance with the” order of priority outlined in § 4313(a)(2). Thus, the express terms of § 4313 make its application contingent only on the prerequisites of § 4312, none of which include a showing of discrimination. This case is significant for employers who deal with returning military personnel. It sets out a clear policy in favor of returning military personnel, and their absolute right to reinstatement if they simply meet the bare requirements of the statute. If the employer has a doubt in the employee's veracity, the employer's only option, under this case, is to reinstate the employee and then terminate after the fact for "just cause" if the employer verifies its doubts. Next week, we'll take a look at the Court's handling of Petty's USERRA discrimination claim. Posted in military status discrimination by Jon Hyman2008-08-19The real cost of paid sick leave is staggeringLabels:Ohio Healthy Families Act2commentsThe National Federation of Independent Businesses has commissioned a study to calculate the real cost of paid sick leave to Ohio. The results: 75,000 lost jobs. 20% of the job losses to hit businesses with 20 or fewer employees. $1.17 billion in costs to Ohio employers each year. $9.4 billion in lost sales to Ohio businesses over the next 4 years. Source: Cleveland.com. Posted in Ohio Healthy Families Act by Jon HymanArgument that FMLA does not prohibit retaliation falls on deaf ears at court of appealsLabels:FMLA0commentsWhen a company is caught making a bad employment decision, they come to us, their lawyers, to bail them out. Bryant v. Dollar General Stores (6th Cir. 8/15/08), presents one such example. Dollar Stores fired Martha Bryant, who testified that her supervisor told her she was being fired "[b]ecause of your health, I don’t think you can do the job." Faced with what one can safely call bad facts, Dollar Stores got creative. It argued, both to the trial court and on appeal, that the FMLA does not prohibit retaliation against an employee who takes FMLA leave. The 6th Circuit correctly rejected that argument, and held that the FMLA does, in fact, allow for retaliation claims: Any "right" to take unpaid leave would be utterly meaningless if the statute’s bar against discrimination failed to prohibit employers from considering an employee’s FMLA leave as a negative factor in employment decisions. Interpreting § 2615(a)(2)'s ban on discrimination in a manner that would permit employers to fire employees for exercising FMLA leave would undoubtedly run contrary to Congress's purpose in passing the FMLA. ... Dollar General's reading of the statute would essentially render the FMLA a nullity. Their interpretation would require us to believe that—despite including statutory provisions granting eligible employees the "rights" to take up to twelve weeks of unpaid leave in a twelve-month period and to be restored to their prior positions or equivalent positions upon their return—Congress wished to erect no obstacle to prevent employers from terminating employees who exercise their newly granted "rights." In enacting the FMLA, Congress plainly stated that "the purpose of this Act" included establishing a right for "employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601(b). Interpreting the language in § 2615(a)(2), which bars employers from discriminating against employees, in a manner that would permit employers to terminate employees for taking qualifying medical leave is fundamentally inconsistent with the clear, unambiguous purpose of the FMLA. There are two lessons to take from this case, aside from the common sense legal rule it announces. Lawyers are not superheroes. We cannot do the impossible, although we often try for our clients. Posted in FMLA by Jon Hyman2008-08-18Five reasons why I'm against the Healthy Families ActLabels:Ohio Healthy Families Act0commentsAs most know, the Healthy Families Act paid sick leave mandate guarantees seven days of paid sick leave each year to employees who work at least 30 hours a week and a pro-rated number of days to employees working less than 30 hours in any workplace with at least 25 employees. Who can argue against paid time off from work? It's a benefit that most employees would love to have. If employees dig deeper, however, they will realize that the Healthy Families Act, while attractive on its face, is not the cure-all they need for their families. In fact, it will cause more short and long term damage to Ohioans' jobs than lacking a few paid days off per year. Requiring employers to add paid sick leave is a threat to pay, benefits and jobs. The proposed mandate imposes significant added costs on employers, who in turn will be forced to look elsewhere to make up the difference. Other benefits, pay, and even jobs will be on the chopping block as businesses try to find the money to pay for sick leave. What good is paid sick leave if employees can no longer afford the health insurance that covers their sick family members because employers increase employees' contributions to counterbalance the cost of mandated sick leave? Even employers who already offer paid sick leave will be seriously penalized by this proposal. This proposal allows employees to take sick leave with little or no advance notice in increments as small as an hour or less. How will you feel if you have to cover for an employee who goes home, with pay and without notice, because he or she has an upset stomach? Moreover, this unannounced leave poses a serious threat to safety-sensitive operations like hospitals, nursing homes and day-care facilities. This mandate will brand Ohio as a job-killer. Ohio is suffering through its worst economic period in decades. This mandate will make Ohio the only state in the union with a mandated paid sick leave law, significantly driving up the cost of doing business when we can least afford it. Some Ohio companies will leave for less expensive states while companies in other states will dismiss Ohio as a potential location for expansion. In short, this mandate will kill economic development at a time when we need more jobs, not fewer jobs. What good is paid leave is there are no jobs left in which to use it? The increased cost of paying for sick leave will result in more expensive goods and services. High oil prices has already increased the costs of many goods and services. While employers in the short term will need to cut benefit packages to pay for this mandate, the long-term result will be increased costs of goods and services, as businesses need new ways try to cover the cost of paid sick leave. This proposal interferes with the established relationship between employers and employees at some of the nation’s most successful businesses. Many companies now operate under long-standing policies that provide employees with good pay and benefits in exchange for work arrangements that ensure a continued high level of production. This proposal guts the employer-employee relationship and threatens the production stability achieved during years of mutual cooperation. Governor Strickland's efforts to broker a deal between business and union leaders appears to have failed. Unless the unexpected happens, the Healthy Families Act will be on November's ballot. It is important to keep these ideas in mind when considering this mandate, and not simply get caught up in the sex appeal of a few paid days off per year.Posted in Ohio Healthy Families Act by Jon Hyman2008-08-15WIRTW #43Labels:what I'm reading0commentsA quick thank you to everyone who helped make Monday's Blawg Review #172 a huge success - those who sent in suggested links and those who graciously linked to the post and helped drive traffic. Now, onto what I've been reading the rest of the week. The Connecticut Employment Law Blog writes on the difficulty of predicting litigation costs at the start of an employment case. The Delaware Employment Law Blog lists the top 10 reasons employers should screen their job applicants. BLR's HR Daily Advisor presents another top 10 list, reasons why HR documentation fails in court. WorkplaceHorizons reports on the Workplace Religious Freedom Act, which would amend Title VII by modifying the definition of "religion"and requiring employers to make an affirmative effort to reasonably accommodate the religious practices of employees. The Labor and Employment Law Blog gives some advice for employers to consider in the use of GPS tracking devices. The FMLA Blog summarizes Santacrose v. CSX Transportation, an 11th Circuit decision which held that an employer satisfied its duty to reasonably accommodate a disabled employee by permitting him to take intermittent FMLA leave. The HR Capitalist asks whether your HR employees would violate HIPAA to see celebrities' medical records. The Trial Technologists View reports on his recent use of technology to help an employer present its case in a sex discrimination trial. Posted in what I'm reading by Jon Hyman2008-08-14Even California thinks paid sick leave is a bad ideaLabels:Ohio Healthy Families Act0commentsCalifornia is uniformly thought of as the most liberal employment law state. It is often the test ground for new employment laws and theories. Yet, paid sick leave could not even make the grade in the Sunshine State. According to the Angeles Times, California's paid sick leave measure died in its legislature: A state bill to guarantee paid days off for sick workers died Thursday amid opposition from business lobbyists and lawmaker concern that the benefit was too costly. The bill would have granted employees of small companies in California up to five days of paid sick leave each year. Workers at larger firms could take up to nine days a year. ... Small businesses and their lobbyists who fought the sick-leave measure said they were relieved that it failed. They estimated that the bill would cost 370,000 jobs in California and would burden employers with $4.6 billion in new costs over a five-year period. The bill "unfairly presumed that small-business owners are able to provide paid sick leave and don't want to," said John Kabeteck, executive director of the National Federation of Independent Businesses. "That couldn't be further from the truth. The fact is that many want to but simply can't afford it." ... If the proposal had become law, California would have been the first state in the nation to provide universal paid sick leave. But it would have eroded the state's ability to attract new employers, said state Chamber of Commerce President Allan Zaremberg. Ma's proposal was high on the influential business lobby's annual list of "job killer" bills. Do these themes sound familiar? Ohio's legislature has already rejected the Healthy Families Act. California has now done the same. If California, whose economy is much more robust than Ohio's, is concerned that a paid sick leave mandate will erode that state's ability to attract businesses, what will the same measure mean for Ohio? Posted in Ohio Healthy Families Act by Jon Hyman2008-08-13Stupidest employee ever?Labels:employment policies,privacy1 comments The above video is of a Xenia, Ohio, Burger King employee who not only thought it was a good idea to take a bath in the restaurant's utility sink, but then went one step further and posted it on YouTube. Cleveland.com reports that Burger King has fired all of the employees involved in the incident. It also released a statement that it had sterilized the sink, disposed of all kitchen tools and utensils used in the incident, and is retraining the staff in health and sanitation procedures. A few points. I knew there was a reason why I don't like to eat fast food. This story provides another example of the risks employees take when posting videos or pictures on social networking sites. This story is also a good example of crisis management in the workplace. Burger King handled this situation properly. It fired everyone involved, and is retraining its remaining employees in health and sanitation. Any time a crisis rears its head, whether its sexual harassment, an employee taking a bath in a food preparation area, or something it is always a good idea to send the proper message and set expectations of future conduct through retraining. Posted in employment policies,privacy by Jon HymanA lesson in how not to handle a pregnant employeeLabels:pregnancy discrimination0comments"Being pregnant here - it's like wearing a scarlet letter 'P' on your chest,"  said Lori Ann DiPalo, 36, the MTA Bridges and Tunnels officer. The New York Daily News reports that DiPalo's physician certified the 10-week pregnant officer as fit for duty without restrictions. Nevertheless, she was stripped of her badge and gun and and banished to tollbooth duty. A doctor for Bridges and Tunnels read DiPalo's file and decided she shouldn't carry a gun. "When I asked why, they said they didn't want to risk abdominal injury or me having to use 'deadly physical force,'" she said. So DiPalo - unarmed but in uniform - now stands in a bridge tollbooth from 11 p.m. to 7 a.m. collecting tolls. ... In her six years as a peace officer, DiPalo has arrested frauds, drunken drivers and other people who had noright to be behind the wheel. She has dispatched officers, handled roll call and patrolled the vulnerable bases of various bridges and entrances to tunnels - considered key targets for potential terror attacks. "I like my job. I want to work. My doctor said I can," she said. This paternalistic decision making is exactly the type of employment practice the EEOC sought to combat in drafting its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. Per the EEOC: Employers can also violate Title VII by making assumptions about pregnancy, such as assumptions about the commitment of pregnant workers or their ability to perform certain physical tasks. As the Supreme Court has noted, "[W]omen as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job." Title VII's prohibition against sex discrimination includes a prohibition against employment decisions based on pregnancy, even where an employer does not discriminate against women generally. As with other sex-based stereotypes, Title VII prohibits an employer from basing an adverse employment decision on stereotypical assumptions about the effect of pregnancy on an employee's job performance, regardless of whether the employer is acting out of hostility or a belief that it is acting in the employee's best interest. This story illustrates an important lesson about the perceptions we hold, consciously or unconsciously, about certain classes of employees. DiPalo was benched out of apparent good intentions. Nevertheless, that decision is not one for the employer to make. It is a decision between the pregnant employee and her doctor. Once the doctor clears her to work, it is out of the employer's hands to say otherwise, even if it has the mother's and baby's best interests at heart. Posted in pregnancy discrimination by Jon Hyman2008-08-12Tell us something we didn't know - court holds that sex is a major life activityLabels:ADA0comments"Disability" is a term of art under the ADA. To be legally "disabled" and entitled to the protections that the ADA provides, it is not enough to simply have a medical condition. That condition must substantially limit a major life activity. In Adams v. Rice (2nd Cir. 7/18/08) (decided under the Rehabilitation Act, the predecessor to the ADA, which prohibits federal agencies from engaging in employment discrimination against disabled individuals), the court was faced with an employee with stage-one breast cancer, which the court determined substantially limited her in the major life activity of sexual contact and romantic intimacy: Beginning with the statute, we can easily conclude without resorting to the dictionary that engaging in sexual relations clearly amounts to an "activity" in any sense of that word. ... At the risk of stating the obvious, sex is unquestionably a significant human activity, one our species has been engaging in at least since the biblical injunction to "be fruitful and multiply." Genesis 1:28. As a basic physiological act practiced regularly by a vast portion of the population, a cornerstone of family and marital life, a conduit to emotional and spiritual fulfillment, and a crucial element in intimate relationships, sex easily qualifies as a "major" life activity. ... Having decided that engaging in sexual relations qualifies as a major life activity, we next determine whether Adams has sufficiently alleged a substantial limitation on that activity. This is an individualized inquiry that focuses on Adams's own experience. ... According to Adams, her breast cancer treatment rendered her completely unable to engage in sexual relations. Due to the scarring from her mastectomy and breast reconstruction, her overall post-surgery physical appearance, lack of physical sensation, loss of libido accompanying her medication, or some combination of those factors, she claims that her "ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently." ... Adams's breast cancer qualifies as a disability because it amounted to a physical impairment that substantially limited her in the major life activity of sexual relations. The employment decision is this case just smells bad. Adams had passed both the written and oral examinations for the Foreign Service before finding out she had breast cancer. After her diagnosis and surgery, the State Department cleared her appointment, advising Adams that she had scored 7th out of the 200 applicants. The next day, Adams informed the State Department of her cancer. The State Department, in turn, withdrew her clearance. Thus, the court looked past the lack of any nexus between the employer's knowledge of the condition and the knowledge of the substantial limitation on a major life activity. Perhaps the lesson to be learned is that when a case presents horrific facts, courts will sometimes find a way to rationalize a fair and just result. There is no doubt that Adams's cancer had no impact on her ability to do her job whatsoever, and yet it appears clear that is was entirely because of her diagnosis that the State Department pulled her foreign clearance and killer her application. In other words, if it looks like discrimination, and smells like discrimination, it probably is discrimination. Posted in ADA by Jon HymanSubscribe to:Posts (Atom)Older PostsSubscribe In a Reader (What is Atom/RSS?)  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It does not constitute legal advice, and is not intended to create an attorney-client relationship. Further, your use of this blog does not create an attorney-client relationship. Online readers should not act upon any information presented on this blog without seeking professional legal counsel.The author apologizes for any factual or other errors in this weblog. If you believe that some content is inaccurate, false, disparaging, slanderous, libelous, or defamatory, please post a comment or contact us; we will consider editing existing content, removing that content, or posting a retraction. Information herein is provided on an "as is" or "as available" basis; we make no warranty of any kind to you regarding the information provided and disclaim any liability for damages from use of the weblog or its content.Fight the Ohio Healthy Families Act Get great free widgets at Widgetbox! presented by |
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