12.29.2009

RICO Suave or No Way?

In a short decision released on December 7, 2009, the United States Supreme Court declined to hear a workers’ compensation case on appeal from the United States Court of Appeals for the Sixth Circuit in which the appeals court held that the plaintiffs could sue their employer and its workers’ compensation claims adjustor under the federal Racketeer Influenced and Corrupt Organizations Act (RICO).
The six plaintiffs involved in Paul Brown et al. vs. Cassens Transport Co. et al., current or former employees of the trucking company, Cassens Transport Co, alleged that the defendants - Cassens, Crawford & Company, and Dr. Saul Margules - had colluded to deny them workers’ compensation benefits under the Michigan Worker’s Disability Compensation Act in violation of RICO.The outline by the Court of Appeals noted that "specifically, the plaintiffs alleged that Cassens and Crawford deliberately selected and paid unqualified doctors, including Margules, to give fraudulent medical opinions that would support the denial of workers’ compensation benefits, and that defendants ignored other medical evidence in denying them benefits. The plaintiffs claimed that the defendants made fraudulent communications amongst themselves and to the plaintiffs by mail and wire in violation of the racketeering act."The decision by the Supreme Court now sends the matter back to the Eastern District of Michigan for trial. What remains to be seen is how the court will determine the question of what is and is not a permissible level of contact between and among the employer, adjustor, and doctor so as not to run afoul of the RICO statutes in the future.While this case arises out of Michigan, it should be a cautionary tale for self-insured employers, their workers’ compensation adjustors, and medical professionals who perform workers’ compensation medical evaluations in all states.  It is easy to give off-hand opinions as to the validity of a workers’ compensation claim to an adjustor or doctor’s office, but those off-hand opinions can carry weight.  It may be as the result of this action that the parties will need to find it necessary to adopt strict rules for dealing with each other at an arm’s length in the years ahead. 

12.23.2009

Discrimination Laws Expanded

Effective November 30, 2009, it is unlawful to discriminate against an individual on the basis of sexual orientation and/or gender identity in Akron and Summit County, Ohio. Ordinances recently passed by Akron City and Summit County Councils now expressly prohibit discrimination in employment, housing and public accommodations by creating two new protected classes of individuals. The City of Cleveland enacted similar legislation last year that prohibits discrimination based upon sexual orientation and recently added provisions that cover gender identity and expression, effective December 3, 2009.

As a result of these new protections, employers within these jurisdictions should review their anti-discrimination and anti-harassment policies to ensure compliance with local laws. Dress code policies may also need attention if they contain provisions that would unreasonably inhibit gender identity or sexual orientation protections as provided in the new statutes. There are also some exemptions and new definitions which should be reviewed to determine if they apply to your organization.

            330.849.6710
            hcarroll@ralaw.com

12.16.2009

Supreme Court Interested in Retaliation Claim When Employer Takes Adverse Action Against Spouse

This week, the United States Supreme Court asked the Justice Department to give an opinion on whether the Court should review a ruling from the Sixth Circuit Court of Appeals that Title VII’s anti-retaliation provisions did not cover an employee who claimed to be terminated because his fiancée had filed a sex discrimination charge against their employer.

In Thompson v. North American Stainless, LP, 567 F.3d 804 (6th Cir. 2009), a splintered full panel of the Sixth Circuit considered a retaliation claim brought under Title VII by a man who alleged that he was terminated in retaliation for his fiancée’s (a co-worker) EEOC charge of sex discrimination. In a 10-6 decision, a majority of the Sixth Circuit held that the authorized class of claimants under Title VII’s anti-retaliation provision is limited to persons who have personally engaged in the protected activity by opposing a practice, making a charge, assisting or participating in an investigation. Because the plaintiff in Thompson did not claim that he engaged in any statutorily protected activity on either his own behalf or his fiancée’s behalf, the Sixth Circuit determined that he failed to show that he engaged in protected activity by personally “opposing” a discriminatory practice.

The Thompson plaintiff filed a petition for Supreme Court review, arguing in part that the Justices should review the case because the Sixth Circuit’s decision created “a grotesque incentive” for employers to retaliate against a worker by punishing the worker’s friends or relatives. The defendant employer filed a brief opposing review, stating that the Sixth Circuit’s decision properly applied the statute as written as is the court’s obligation. The U.S. Supreme Court’s recent invitation to the U.S. solicitor general to provide an opinion on the petition signals the Court’s interest in possibly taking the case.

Author: Emily Ciecka Wilcheck
            409.254.5260
            ewilcheck@ralaw.com

12.10.2009

Ohio Supreme Court Continues Limited Use of Voluntary Abandonment Defense in Workers’ Compensation Claims

In an attempt to clarify when an employer can rely upon termination as a voluntary abandonment and bar future disability benefits, the Ohio Supreme Court continued to adhere its prior rulings and strict requirements.

In the Saunders case, the employee was terminated from his employment a month after he injured his knee at work for insubordination. The employer had initially supplied him with an employee handbook in June of 2004, who signed an acknowledgement for receipt of the handbook. However, that handbook was amended in June of 2004 and a new policy was included that referenced insubordination as a reason for termination. Unfortunately, the employer did not obtain any further acknowledgement from the employee that he had received the new policy or was aware of the policy.

The employee later underwent surgery and applied for additional temporary total disability benefits during his recovery. The employer raised the defense of voluntary abandonment to block the payment of those benefits. The Commission agreed with the employer and the employee then filed for mandamus relief with the court of appeals. The Tenth District Court of Appeals upheld the Commission’s findings and the employee then appealed to the Ohio Supreme Court.

In overturning the court of appeals’ decision and thus vacating the Industrial Commission’s denial of benefits, the Supreme Court focused on the lack of evidence that the employee was aware of any work rule regarding insubordination and of the consequences of violating that work rule. The Supreme Court reiterated that in order to rely upon a voluntary abandonment defense, the employer must establish:
  1. That a written work rule exists that clearly defines the prohibited conduct;
  2. That the prohibited conduct had previously been identified by the employer as a dischargeable defense; and
  3. That the written work rule was known or should have been known to the employee as well as the consequences.
While it would appear obvious that the insubordination of an employee could naturally lead to their dismissal, the court refused to adhere to this more practical or common sense approach. Instead, the court ruled that the three-prong elements of Louisiana-Pacific demanded a “clear, written articulation of work place rules and the penalties for their violations.”

The Saunders case sends a clear message to employers that if they intend to rely upon a termination as a tool to defeat future temporary total disability benefits, they must ensure they have:
  • evidence of a clear written rule prohibiting the conduct that gave rise to the termination;
  • evidence that the company could utilize the policy as a basis for termination, and;
  • specific evidence that the employee was aware of not only the prohibited conduct but of its consequences.
This is true even when the termination was clearly justified.

See State ex rel. Saunders v. Cornerstone Foundation Sys., Inc., 123 Ohio St. 3d 40, 2009-Ohio-4083.

 Author: Charlie Smith
             614.723.2025
             csmith@ralaw.com

12.07.2009

Update - Extended Unmployment Compensation Benefits

On November 6, 2009, President Obama signed legislation into law that extends unemployment insurance benefits by up to 14 additional weeks in all fifty states and up to 20 weeks in states with a three-month average unemployment rate of at least 8.5%, which includes Ohio.
Author: Karen Adinolfi
            330.849.6773
            kadinolfi@ralaw.com

11.23.2009

Man Hit By Car Ineligible for FMLA Leave

On November 3, 2009, the Sixth Circuit Court of Appeals issued its decision in Stimpson v. United Parcel Service, Sixth Cir. Case No. 08-2263, affirming an award of summary judgment to the employer.

Plaintiff Paul Stimpson, a part-time UPS employee, was hit by a car while riding a bicycle off-duty. Mr. Stimpson was treated at an emergency room, where he was noted to have contusions on his back, legs, and right ankle. He returned to the hospital a day later complaining of back pain.

Mr. Stimpson left a message with his employer that he was hit by a car while biking, but did not provide any other information. He claimed to have called his supervisor to report that he would not return to work until he recovered, which the supervisor denied.

When Mr. Stimpson did not respond to UPS’ letter threatening termination for failure to provide medical documentation substantiating his absence, he was fired. Mr. Stimpson filed suit alleging violation of the Family and Medical Leave Act (FMLA). The trial court granted summary judgment to the employer, concluding that Mr. Stimpson was not eligible for FMLA leave, failed to give proper notice under the FMLA, and failed to demonstrate that he had a serious health condition under the FMLA.

While the Sixth Circuit Court of Appeals, in a 2-1 decision, found the trial court’s summary judgment ruling improper on the issues of Mr. Stimpson’s eligibility and notice, it affirmed the ruling with respect to the issue of whether Mr. Stimpson had a serious health condition under FMLA. In making its decision, the Court noted medical records indicating only “mild to moderate” back pain. The Court concluded that none of the medical documentation suggested that Mr. Stimpson’s back pain significantly limited his movement or lifting ability.

While UPS was successful in this instance, employers should continue to thoughtfully and carefully address employees’ possible FMLA qualifying leave. The Stimpson majority did find that the plaintiff should have survived summary judgment with respect to his notice of FMLA qualifying leave. Additionally, the majority opinion emphasized that the Court was not ruling that a back injury can never constitute a serious health condition.

Author: Ryan Bonina
            614.723.2012
            rbonina@ralaw.com

11.16.2009

EEOC Issues Draft of Regulations for 2008 Amendments to ADA

The Equal Employment Opportunity Commission (EEOC) released its proposed regulations and interpretive guidelines for implementation of the ADA Amendments Act of 2008 in September. The rules and regulations are open for public debate and the EEOC is planning to hold town hall sessions in November to allow input from the business community. The introduction to the proposed rules states that the effect of these changes is to “make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”

Defining Disability
The 2008 amendment to the ADA does not change the basic definition of a disability as: “a impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.” However, it does change the way these statutory terms should be interpreted.

The proposed regulations expand the definition of major life activities through two non-exhaustive lists. The first includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping and walking. The second includes major bodily functions, such as function of the immune system, normal cell growth, digestive, respiratory and reproductive functions. With these two expanded lists, the concept of daily life activities takes on a much broader meaning.

Mitigating Measures
Under the 2008 amendment, the therapeutic effects of mitigating measures shall not be considered in determining whether an impairment substantially limits a major life activity. Under the proposed rules, mitigating measures include but are not limited to:
  • medication;  
  • medical supplies;
  • equipment or appliances;
  • low vision devices;
  • prosthetics, including limbs and devices;
  • hearing aids and cochlear implants or other implantable hearing devices; and
  • mobility devices or oxygen therapy equipment and supplies.
Many chronic illnesses or conditions that can be easily treated with medication now take on the potential mantle of being a disabling condition since mitigating measures like medications cannot be considered. Only the beneficial effects of ordinary eyeglasses or contact lenses shall be considered when determining whether an impairment substantially limits a major life activity.

These are just a few of the examples of the major changes found within the proposed regulations. It is encouraged that all employers review carefully the proposed regulations. More information will be provided as the proposed regulations proceed through the review process.

Author: Charles Smith
            614.723.2025
            csmith@ralaw.com

11.06.2009

Senate Passes Legislation to Extend Unemployment Benefits

On November 4, 2009, the United States Senate voted 98-0 to extend the current unemployment insurance benefits program. The bill now goes to the House of Representatives.

The Senate bill would extend unemployment benefits for up to 14 additional weeks in all states and up to 20 weeks in states with a three-month average unemployment rate of at least 8.5%. Ohio falls into the latter category. This bill is more expansive than the one previously passed by the House of Representatives, which only would have extended benefits by 13 weeks in states with a three-month average unemployment rate of at least 8.5%. As with the House version, the cost of the extension in the Senate bill is offset by extending the Federal Unemployment Tax through June 30, 2011.

             330.849.6773
             kadinolfi@ralaw.com

10.30.2009

OSHA Seeks Comments on Proposed Combustible Dust Rule

The Occupational Safety and Health Administration (“OSHA”) indicates that it wishes to develop a standard designed to prevent combustible dust fires and explosions in general industry and is seeking comments. Currently, OSHA does not have a single, comprehensive standard that addresses combustible dust hazards across all industries. With respect to comments sought, OSHA seeks input from employers on several issues, such as:

  1. the extent of combustible dust hazards,
  2. the definition of “combustible dust,” 
  3. awareness of the hazards of combustible dust, and 
  4. hazard assessments, communications, and training.
Employers in industries where combustible dust and resulting hazards are an issue should take the time to provide their comments to the agency, which OSHA will utilize to develop the standard. Comments are due Jan. 19, 2010, and may be submitted in several ways:
  1. online at http://www.regulations.gov/
  2. fax to the OSHA Docket Office at (202) 693-1648; or 
  3. mail to the OSHA Docket Office
    Docket No. OSHA-2009-0023 (or Regulation Identifier Number (RIN) 1218-AC41)
    Technical Data Center, Room N-2625
    U.S. Department of Labor
    200 Constitution Avenue, N.W.
    Washington, DC 20210
Please note that all submissions must include the Agency name and the OSHA docket number or RIN for this rulemaking (i.e., OSHA Docket No. OSHA-2009-0023 or RIN 1218-AC41).

Author: Karen Adinolfi
            330.849.6773
            kadinolfi@ralaw.com

10.14.2009

Workers' Comp Case Weighs In Heavy in Indiana

Workers’ compensation can be a very state-specific part of the law since it is generally a state-run system, which means we typically only hear about cases that take place within our own state. Every so often, however, a case from another jurisdiction is interesting enough that we do hear about it. The most recent workers’ compensation case to make national headlines was PS2 LLC v. Childers, 910 N.E.2d 809 (Ind. App. 2009) from the State of Indiana.

Adam Childers was 25 years-old and worked as a cook at a Boston’s Gourmet Pizza in March 2007 when he sustained an injury to his back when he struck a freezer door. Prior to the accident, Childers weighed 340 pounds. As a result of the injury, Childers’ doctors said he needed surgery to ease his severe pain, but the operation would do him no good unless he first had surgery to reduce his weight, which rose to 380 pounds after the accident.

The employer, Boston's Gourmet Pizza, argued it should not have to pay for the weight loss surgery because Childers' weight was a pre-existing condition. The Indiana Workers' Compensation Board and the Court of Appeals of Indiana, however, ruled the company had to pay for the surgery because Childers’ weight and the accident created a single and continuous injury.

While we have seen employers ordered to pay for certain pre-surgery treatments, none have made headlines the way Mr. Childers’ weight-loss surgery did. Despite the many articles either in support or opposition to the position taken by the Indiana court, the Childers case is a good reminder that employers take their employees as they find them, and sometimes even an innocuous injury can lead to long-term, unanticipated costs.

10.08.2009

Sixth Circuit Finds Evidence of Pretext for Discrimination

On September 23, 2009, the Sixth Circuit Court of Appeals issued its decision in Risch v. Royal Oak Police Department, Sixth Cir. Case No. 08-1883, reversing an award of summary judgment to the employer.

Karyn Risch is a female police officer who worked for the Royal Oak Police Department for 17 years. On several occasions, Ms. Risch applied for promotion, but was passed over in favor of male candidates. Royal Oak used a weighted scale to evaluate candidates for promotion, assigning values for written examinations, performance reviews, and seniority. From 2002 to 2004, Ms. Risch placed second or third on the promotion list. In 2005, Ms. Risch was ranked third, but males scoring second, fourth and fifth were promoted instead. The police chief indicated by affidavit that he did not promote Ms. Risch because the males who were promoted had better test scores, better performance evaluations, and demonstrated more initiative and leadership qualities.

Ms. Risch filed a charge of sex discrimination with the Equal Employment Opportunity Commission in October of 2005 and subsequently a lawsuit under Title VII in the U.S. District for the Eastern District of Michigan. The district court granted the employer’s motion for summary judgment and Ms. Risch appealed to the Sixth Circuit Court of Appeals.

Royal Oak conceded that Ms. Risch was able to establish a prima facie case of sex discrimination under Title VII. Ms. Risch in turn conceded that her employer had articulated a legitimate, nondiscriminatory reason for not promoting her. The sole issue before the Sixth Circuit was whether Ms. Risch had produced sufficient evidence to raise a genuine issue of material fact as to whether Royal Oak’s explanation was a pretext for discrimination. The majority held that evidence that Ms. Risch was more qualified than the successful applicants can in some circumstances be sufficient to raise a genuine issue of material fact that the employer’s proffered reason is pretextual.

In reviewing the evidence, the majority found that those circumstances may exist and a question had been raised for the jury. It held that Ms. Risch had demonstrated a genuine issue of material fact as to pretext, emphasizing that Ms. Risch had “arguably superior qualifications” when seniority was considered. The majority also found evidence of discriminatory remarks made by several male officers who were not decision makers to be relevant.

What can employers take from this decision? Reliance on objective, documented factors in considering candidates for hire or promotion is the best avenue. Reliance on such “soft” factors as initiative, leadership qualities, and ability to work with others can be problematic. Those factors are often subject to the bias of the decision maker, which may or may not turn out to be a discriminatory bias. While such factors may be important to an employer, it is crucial to remember that you must be able to document and provide concrete examples of such criteria should you wish to rely on them.

Author: Ryan Bonina
614.723.2012

10.01.2009

U.S. House Approves Bill Extending Unemployment Benefits in States with High Unemployment Rates

On September 22, 2009, the U.S. House of Representatives approved H.R. 3548, which will provide an additional 13 weeks of emergency unemployment compensation program benefits in states with a three-month average total unemployment rate of at least 8.5%. Ohio, with an average rate of 10.8%, is one of the states that will receive additional funds under this bill.

This bill will assist workers who would exhaust their benefits this month if no extension was approved, and the number of such workers is expected to increase to more than one million by the end of 2009. The bill’s costs are not expected to add to the national deficit, as any costs will be offset by two provisions:

1) the bill extends for one year a federal unemployment tax already in place, the Federal Unemployment Tax Act surtax, which imposes a $14 per worker annual tax on business, and which was scheduled to expire at the end of 2009; and

2) the bill requires that current reporting on newly hired employees must now include the date work started, in order to reduce overpayments.

The Senate now takes up the bill.

            330.849.6773
            kadinolfi@ralaw.com

9.24.2009

Sexual Orientation and Gender Identity Gaining Momentum as Protected Classifications

Last week, the Ohio House of Representatives passed a bipartisan measure entitled the Equal Housing and Employment Act, H.B. 176. This Act adds sexual orientation and gender identity to the list of protected classifications against which it is illegal to discriminate in housing, employment and public accommodation. This measure now advances to the Ohio Senate.

Ohio Revised Code Chapter 4112 currently prohibits employers from discriminating against employees or job applicants on the basis of their race, color, religion, gender, military status, national origin, disability, age, or ancestry. The Equal Housing and Employment Act seeks to add sexual orientation and gender identity to that list. Proponents of the Act hope this legislation will help attract and retain talent in Ohio. Approximately 12 other states have similar laws.

If enacted, this measure will likely not create a significant change in the status of discrimination laws for Ohio employers. Federal courts have already found that it is unlawful under Title VII to discriminate on the basis of gender identity and sexual orientation. Specifically, federal courts have held that it is unlawful sex discrimination for an employer to engage in “sex stereotyping,” which has been interpreted to include gender identity and sexual orientation. Thus, employers already cannot discriminate against an employee or job applicant because he or she fails to act or appear sufficiently masculine or feminine enough for the employer.

Author: Emily Wilcheck
            419.254.5260
            ewilcheck@ralaw.com

9.22.2009

Lactose Intolerant?

The Ohio Supreme Court recently ruled that an employee terminated for taking unauthorized breaks to pump breast milk was not discriminated against by her employer on the basis of pregnancy when the former employee's deposition testimony revealed that the employer did not know the reason for her unauthorized breaks. Allen v. totes/Isotoner Corp., 2009-Ohio-4231, 2009 WL 2634592.

For approximately two weeks, LaNisa Allen had been taking breaks from her work station without her employer's knowledge or prior authorization. Her supervisor informed Ms. Allen that she was being terminated for her failure to "follow directions." Following her termination, Ms. Allen sued her employer for sex discrimination on the basis of pregnancy as prohibited by Ohio state law, because the reason she had been taking the breaks was to pump breast milk. The trial court granted the employer's motion for summary judgment, finding that discrimination on the basis of lactation is not the same as discrimination on the basis of pregnancy because the condition of lactating is not a condition relating to pregnancy but rather a condition relating to breastfeeding. The Twelfth District Court of Appeals affirmed the decision on appeal, but instead, based its decision on the fact that Ms. Allen was terminated plainly and simply for taking an unauthorized break. Ms. Allen appealed.

The Ohio Supreme Court accepted Ms. Allen's discretionary appeal to decide whether alleged discrimination due to lactation is included within the scope of Ohio's employment-discrimination statute, R.C. Chapter 4112. However, the Court decided not to reach this issue because it found that the employer's legitimate, nondiscriminatory reason for Ms. Allen's termination caused her claim to fail. This was due to Ms. Allen's failure to produce evidence from which a jury could conclude that her employer's legitimate, nondiscriminatory reason for the termination was a pretext for discrimination based on Ms. Allen's pregnancy or a condition related to her pregnancy.

Although Justice Maureen O'Conner agreed with the Court's holding, she wrote a lengthy separate opinion to state that she would hold that lactation is protected by Ohio's discrimination statute and that the statute prohibits employment discrimination against lactating women. Justice Paul Pfeifer, the only dissenting Justice from the Court's per curiam opinion, took it one step further in writing that he would hold that not only are lactation activities protected under Ohio's sex discrimination law, but that a "clear public policy justifies an exception to the employment-at-will doctrine for women fired for reasons relating to lactation."

Unfortunately, the implication of this case for Ohio employers is clear as mud. Here, the combination of Ms. Allen's failure to request a lactation accommodation, along with her employer's lack of knowledge as to the reasons for Ms. Allen's unauthorized breaks, ultimately prevented a finding of liability. Had Ms. Allen produced some evidence that her lactation was the true motivation for her termination, the outcome may have been different. Instead, the Ohio Supreme Court stopped short of deciding whether lactation discrimination is prohibited. This issue will likely resurface, and if the viewpoints of Justices O'Conner and Pfeifer foreshadow what is to come, protection may extend to lactating employees, requiring employers to provide a lactation accommodation.

Author: Ann Eberts
            330.849.6649
            aeberts@ralaw.com

9.11.2009

Card Check Legislation put on the Back Burner

The Employee Free Choice Act (“EFCA”), also known as the “Card Check” legislation, appears to be on the back burner after facing mounting challenges from opponents. As originally proposed, EFCA would change federal labor law by allowing the formation of a new bargaining unit at a non-union company if a majority of workers simply sign authorization cards requesting a union. EFCA would also require the parties to submit to mandatory mediation and binding arbitration if the union and the employer are unable to reach an agreement on an initial contract within 90 days. Stiffer penalties would be imposed against employers found to have engaged in conduct that interferes with employees’ rights during union organizing. However, there is no provision for penalties against unions who interfere with employees’ rights during union organizing.

Many business owners and business associations consider EFCA to be a serious threat to their ongoing viability and have expressed their concerns to legislators. The business community’s concerns have not gone unnoticed. It was reported by the Las Vegas Review-Journal that Senate Majority Leader Harry Reid (D-Nev) responded to a question concerning EFCA at a Las Vegas Chamber of Commerce meeting on August 26, 2009 by indicating that “We have too many other things on our plate.”

While EFCA in its current form is no longer a top priority for Congress, it is anticipated that there will be a renewed push to pass a compromise version of the bill. It remains to be seen what compromises will be included.

Author: Ryan Bonina
            614.723.2012
            rbonina@ralaw.com

9.08.2009

Ohio Supreme Court to Review Entitlement to Leave Regardless of Length of Employment

The Ohio Civil Rights Commission (“OCRC”) and the Ohio Fifth District Court of Appeals take the position that it is unlawful under Ohio law to terminate employees who are temporarily disabled due to pregnancy and childbirth because they do not meet the employer’s minimum service requirement for taking leave. On July 29, 2009, the Ohio Supreme Court accepted review of the Fifth District’s decision in Nursing Care Management of America, Inc. v. Ohio Civil Rights Commission, to review this interpretation of Ohio law.

In this case, the Plaintiff employee required medical leave due to pregnancy, but she had not worked twelve months preceding the need for leave in order to qualify for leave under the employer’s policy. The employee was terminated when, after eight-months of employment, she required medical leave due to her pregnancy.

The appellate court upheld the OCRC’s interpretation of Ohio law as requiring maternity leave for a “reasonable period of time”, regardless of length-of-service policies. The employer argued that Ohio law allows employers to place a length-of-service requirement on leave time provided to pregnant employees, as long as that length-of-service requirement is evenly applied. In upholding its interpretation of the law, the court was not persuaded by the fact that male employees could be terminated on account of medical conditions if they had not met the minimum 12-month service requirement, while pregnant employees would be entitled to maternity leave.

In addressing the employer’s argument that preferential treatment was not permitted, the court found that the OCRC’s interpretation of Ohio’s law “ensures that a female employee is not put in a position of choosing between her job and the continuation of her pregnancy, a dilemma that would never face a male employee in the first year of employment...”

The Family and Medical Leave Act provides a 12-month length-of-service requirement to be eligible for leave under its provisions. However, the OCRC and the Fifth District interpret Ohio law as requiring that pregnant employees be provided leave for a “reasonable period of time”, regardless of length of service. The Ohio Supreme Court’s review of this issue will thus provide necessary guidance in light of these outstanding interpretations of Ohio law.


Author: Gina Kuhlman
            216.820.4202
            gkuhlman@ralaw.com

8.28.2009

Welcome

Welcome to Great Work!, a blog created and presented by the attorneys of Roetzel & Andress' Employment Services Group. It is our goal to present issues of interest relating to employment law, labor law, employee benefits, employment litigation, and human resources functions. Check back on a regular basis for new topics and feel free to post your comments and questions. If you have any questions or comments about the blog itself, please send us an email to employmentblog@ralaw.com.

The Employment Services Group is also presenting a series of complimentary seminars throughout Ohio on the following dates:

  • Columbus – 9/16
  • Toledo – 9/23
  • Akron – 9/30
  • Cleveland – 10/13
  • Cincinnati – 10/21
Hope to see you there!