EEOC Issues Final Genetic Information Nondiscrimination Act ("GINA") Regulations

President George W. Bush signed the Genetic Information Nondiscrimination Act (“GINA”) of 2008 into law on May 21, 2008. GINA’s employment provisions took effect on November 21, 2009. The Equal Employment Opportunity Commission (“EEOC”) published its final regulations implementing Title II of GINA on November 9, 2010. Generally, GINA prohibits employers from utilizing genetic information to make decisions regarding health insurance and employment, and it restricts both the acquisition and the disclosure of genetic information. GINA applies to public and private sector employers with 15 or more employees. It also covers applicants, employees, and, as the final regulations make clear, former employees. The EEOC’s final regulations provide some clarity regarding the definitions and application of GINA, but not all is good news for employers.

The final regulations address the following questions and topics:
  • What provisions related to family members are included in the final regulations, and how is family member defined?
  • Are employers liable even if they obtain genetic information by accident?
  • What is the employer’s liability when genetic information is obtained via the Internet, social media, third-party conversations and more?
  • What are the six exceptions that will not result in liability for an employer?
  • What language was added by the EEOC to the final regulations that provides a “safe harbor” for the employer?
  • What is required of the employer when an employee’s genetic information is lawfully obtained?
  • What are the exceptions to GINA’s restrictions on the disclosure of genetic information?
  • How does GINA define employment discrimination based on genetic information?

Author: Jon Secrest


National Labor Relations Board Adopts Two New Policies

On October 22, 2010, the National Labor Relations Board issued decisions adopting two new policies.

With the first decision, the Board adopted a new policy requiring employers or labor organizations not only to post paper notices to remedy unfair labor practices, but also to distribute the notices electronically in cases where the charged party customarily uses such technology for other messages. The posting change will apply to all cases pending before the NLRB. Dissenting member, Brian E. Hayes, expressed concern that once in “cyberspace,” the notice is at risk of alteration and of dissemination to third parties, perverting the remedial purpose of the Act and making it punitive.

In the second case, the Board unanimously adopted a new policy that interest on back pay and other monetary awards will be compounded on a daily basis. The Board concluded that compound interest better effectuates the remedial purpose of the Act than the Board’s traditional practice of ordering simple interest. The Board rejected the Employer’s argument that the Board should address the issue of interest through rule making rather than through adjudication.

Author: Gina Kuhlman
(216) 820-4202


Roetzel Ranked Among Best Law Firms by U.S. News & World Report

Roetzel is pleased to be included in the inaugural Best Law Firms list, published by U.S. News & World Report in conjunction with Best Lawyers. The firm received premier distinctions in three categories and is recognized in more than 10 areas of practice.

Premier Distinctions:
  • National First Tier ranking in Transportation Law
  • Most First Tier rankings throughout Ohio in Medical Malpractice Law - Defendants
  • Most First Tier areas of practice ranked in the Fort Myers metropolitan area, which includes Naples, Florida

Regional First Tier areas of practice rankings:
  • Banking and Finance Law
  • Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
  • Eminent Domain and Condemnation Law
  • Environmental Law
  • General Commercial Litigation
  • Land Use and Zoning Law
  • Mass Tort Litigation / Class Actions - Defendants
  • Personal Injury Litigation - Defendants
  • Product Liability Litigation - Defendants
  • Real Estate Law
  • Workers’ Compensation Law - Employers
In addition, 49 Roetzel attorneys, representing eight offices and 24 distinct specialties, were recently selected for inclusion in the 2011 edition of The Best Lawyers in America®.


Employers May Need to Accommodate Employees' Disability-Related Difficulties in Commuting to Work

Two recent U.S. Court of Appeals decisions clarify that employers may need to accommodate employees' disability-related difficulties in commuting to work. In Colwell v. Rite Aid Corporation, 602 F.3d 495 (3rd Cir. 2010), the Third Circuit held that “under certain circumstances the ADA can obligate an employer to accommodate an employee’s disability-related difficulties in getting to work, if reasonable.” In this case, an employee’s partial blindness made it difficult for her to drive to work at night. However, the company refused to schedule her on day shifts, explaining that it “wouldn’t be fair” to other workers. The employee resigned and brought suit against the employer for violating the ADA.

The court noted that, under the ADA, an employer discriminates against an employee by not providing reasonable accommodations for the employee’s physical or mental limitations, unless the employer demonstrates that the accommodation would impose an undue hardship on the employer’s business. The term “reasonable accommodation” includes:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

The court observed that the accommodations listed in the ADA are not exclusive. Reasonable accommodations may address problems that an employee has outside the workplace, if the accommodations enhance workplace accessibility for the employee. Therefore, the court denied the employer’s request for summary judgment on the employee’s ADA claim, and held that a jury must decide whether the employee’s requested accommodation was reasonable under the circumstances.

In Livingston v. Fred Meyer Stores, Inc., No. 08-35597, 2010 WL 2853172 (9th Cir. July 21, 2010), the Ninth Circuit also held that “an employer has a duty to accommodate an employee’s limitations in getting to and from work.” As in Colwell, the employee in this case could not drive after dark due to her vision impairment. In 2005, the employer granted her request for a modified work schedule during the fall and winter months to minimize her driving at night. When the employer denied her same request in 2006, the employee refused to work her scheduled shift. She was subsequently terminated and brought suit against the employer for violation of ADA.

The court disagreed with the employer’s arguments that its duty to provide reasonable accommodations did not extend to “commute-related activities.” Citing the decision in Colwell, court denied the employer’s request for summary judgment on the employee’s ADA claim. The court also noted that the employer failed to satisfy its duty under the ADA to interact with employees to identify and implement appropriate reasonable accommodations for the employee’s disability. This interactive process is triggered by an employee’s request for accommodation or an employer's recognition of the need for accommodation.

The lesson of Colwell and Livingston for employers is that, under the ADA, they have a duty to provide reasonable accommodations for its employees' disability-related commuting difficulties. Accommodations may include part-time or modified work schedules, or other adjustments to enhance workplace accessibility for the employee. Under the ADA, employers have the duty to interact with employees to identify and implement appropriate reasonable accommodations for the employee’s disability. Employers should remember, however, that they do not need to provide a reasonable accommodation if doing so would impose an undue hardship on their business. An undue hardship exists when an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the employers’ business.



Sixth Circuit Declines to Follow Department of Labor's Interpretation of Clothes and Safety Equipment

On June 8, 2010, Roetzel provided an update regarding the Department of Labor’s (DOL) Administrative Interpretation that time spent changing safety equipment must be compensated if it is required by law, by rules of the employer, or by custom. Section 203(o) of the Fair Labor Standards Act permits employers not to pay employees for time spent changing “clothes” if payment is excluded under the terms of a collective bargaining agreement or barred by the custom or practice. The DOL’s Administrative Interpretation determined that protective equipment is not “clothes” under this exception.

On August 31, 2010, the U.S. Court of Appeals for the Sixth Circuit, which sits above the federal courts in Ohio, issued its opinion in Franklin v. Kellogg Company. This case dealt with the claims of Kellogg plant workers seeking payment for time spent changing food safety uniforms and protective equipment and for time spent walking to and from the changing area. Kellogg required its employees to wear company-provided uniforms consisting of pants, snap-front shirts, slip resistant shoes, hair nets, beard nets, safety glasses, ear plugs and bump caps. Kellogg required employees to change into their uniform and equipment upon arriving at the plant and to change into their regular clothes prior to leaving the plant so that the uniform and equipment could be washed at the plant.

There are several significant portions of the Sixth Circuit’s decision. First, it determined that § 203(o) is an exclusion and not an exemption. § 230(o) excludes changing clothes from compensable time under the Fair Labor Standards Act. The significance of this determination is that an exclusion leaves the burden of proof with the plaintiff and an exemption shifts the burden of proof to the employer.

More significant is that the Sixth Circuit did not afford the DOL’s June 16th interpretation any deference or weight. The Sixth Circuit stated, “The DOL’s position on this issue has changed repeatedly in the last 12 years, indicating that we should not defer to its interpretation. Additionally, we find its interpretation to be inconsistent with the language of the statute.” The Sixth Circuit ruled that the District Court’s decision granting judgment in favor of Kellogg on plaintiffs’ claims for compensation for time spent changing into the uniform and equipment was correct. It must be noted that this ruling was based on evidence that Kellogg had a custom or practice of not paying for the time spent changing clothing under a bona fide collective bargaining agreement.

The Sixth Circuit’s decision, however, was not completely employer-friendly. The Sixth Circuit determined that under the continuous workday rule, plaintiffs may be entitled to payment for pre- and post-changing and pre-donning walking time to the time clock and/or their work stations. The Court determined that changing into the uniform and equipment was an integral and indispensable part of the job. It did so because Kellogg required the activity and wearing the uniform and equipment primarily benefits Kellogg. The Court noted that the employees do receive protection from physical harm by wearing the equipment, but Kellogg received the primary benefit because the uniform and equipment ensure sanitary conditions and untainted food products.

The lesson from this decision is that the DOL’s Interpretation requiring employers to compensate employees for changing clothes if it is required by law, by rules of the employer, or by custom will not be afforded any deference or weight by the federal courts in Ohio. Whether employees must be compensated for time immediately preceding and proceeding changing of clothes depends on 1) whether the changing of clothes is required by the employer; 2) whether the activity is necessary for the employee to perform his or her duties; and 3) whether the activity primarily benefits the employer.

Author: Jon Secrest


Pregnant Welder Sues Employer for Discrimination

On August 10, 2010, the Sixth Circuit Court of Appeals issued its decision in Spees v. James Marine, Inc., which affirmed summary judgment in favor of the employer in part.

The plaintiff, Heather Spees, discovered that she was pregnant shortly after being hired as a welder for James Marine, Inc. Ms. Spees’ physician informed her that she could continue to work as a welder as long as she wore a respirator. Because her employer did not believe that she could continue to work safely as a welder, Ms. Spees was instructed to return to her physician and obtain a more restrictive note. As a result, she was reassigned to a light duty position in her employer’s tool room. Two months later, Ms. Spees was placed on bed rest for the duration of her pregnancy. Because Ms. Spees’ had not yet worked 90 days for her employer, she was entitled to only two weeks of approved leave and was not eligible for FMLA leave. When her employment was terminated, Ms. Spees filed suit alleging pregnancy and disability discrimination.

The district court granted summary judgment to the employer for all of Ms. Spees’ claims. However, the Court Appeals only affirmed the district court’s judgment in regards to Ms. Spees’ claims for the termination of her employment. The Court agreed that her employment termination was based on a combination of her being unable to return to work and her lack of available medical leave, not upon her pregnancy.

The Court of Appeals reversed the district court’s judgment regarding to Ms. Spees’ relating to her reassignment to the tool room. The Court found that the transfer to the tool room did constitute an adverse employment action, even though Ms. Spees was paid the same salary. The Court noted that a position in the tool room did not require any specific training, unlike the welder position. The Court also noted that Ms. Spees was assigned to the night shift, which adversely affected her ability to raise her daughter as a single mother. The Court found that there was evidence demonstrating that Ms. Spees’ pregnancy was at least a motivating factor in the decision to transfer her to the tool room. Finally, the Court found that Ms. Spees could make out a prima facie case that her employer regarded her as having a disability when making the decision to transfer her to the tool room.

Author: Ryan Bonina


Employment Law & Workers' Compensation - Legal Update 2010

The Employment Services Group at Roetzel invites you to our annual complimentary seminar to discuss current issues affecting employers and recent developments in labor and employment law. This program is designed to provide practical guidance on how such issues influence your employment decisions and impact business operations. Join human resource professionals, in-house legal counsel, office administrators, risk management professionals and workers' compensation specialists at one or more of our programs in Ohio.

Sexual Harassment: Policies and Enforcement -
Learn the types of prohibited harassment in the workplace as well as recent sexual harassment litigation and case developments. The increasing number of claims filed by males and the issue of same-sex harassment will be addressed. We will cover the need and importance of re-focusing harassment training beyond simply conduct that is considered to be "motivated by sexual desire" to encompass conduct often dismissed as "locker room behavior" or "horse play.

Occupational Safety and Health Administration (OHSA) and Workplace Safety Update - This session will review OSHA's increased enforcement efforts under the Obama administration and its corresponding implications for employers. The proposed new safety standards currently making their way through OSHA's rulemaking process will also be covered.

Workers' Compensation: The Process from Start to Finish - Get an in-depth perspective of the workers' compensation process beginning with pre-injury action items through claim containment, while introducing relevant case law throughout as applicable. This session will also address:
  - Actions that can be taken before an injury occurs
  - What to do when an injury happens
  - Investigating the claim including its certification or rejection
  - The Industrial Commission hearing process and containment issues

Handbooks and Policies You Should Have - What you should consider when tailoring a handbook to fit your company's needs - from the general to the specific, including drafting language to preserve the sanctity of your company while avoiding litigation. Recent electronic communication trends, dress code, attendance policy, and what to do when you want to update or change your policy will also be discussed.

Fair Labor Standards Act (FLSA) Exemptions - Exempt vs. Non-Exempt: Learn how to comply with FLSA exemptions, including current record keeping requirements and proposed Department of Labor (DOL) rules regarding additional requirements. We will share current trends in FLSA enforcement and litigation, including how technology impacts hours worked and the DOL's focus on the classification of workers as independent contractors.

1:00 - 1:30pm - Registration
1:30 - 5:00pm - Program
5:00 - 6:00pm - Cocktail Reception*
*In lieu of a cocktail reception, the Toledo seminar will include an extended break with appetizers for networking purposes and will conclude at 5:20pm.

Columbus - September 9

Hilton Columbus at Easton
3900 Chagrin Drive
Columbus, OH 43219

Akron - September 22
John S. Knight Center
77 East Mill Street
Akron, OH 44309

Toledo - September 29
The Pinnacle
1772 Indian Wood Circle
Maumee, OH 43537

Independence - October 14
Embassy Suites Cleveland-Rockside
5800 Rockside Woods Blvd.
Independence, OH 44131

Cincinnati - October 20
Sharonville Convention Center
11355 Chester Road
Sharonville, OH 45246

RSVP by September 2. Go to
www.acteva.com/go/roetzel to register online. Space is limited. For additional information or to RSVP by phone, call Robyn Rea at 330.762.7662.


Break Time for Nursing Mothers Required under the FLSA

In a previous blog article posted September 22, 2009, Lactose Intolerant?, we reported that the Supreme Court of Ohio ruled that an employee terminated for taking unauthorized breaks to pump breast milk was not discriminated against 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.
However, the Patient Protection and Affordable Care Act (PPACA), signed into law on March 23, 2010, requires unpaid break time for nursing mothers. The PPACA amended Section 7 of the Fair Labor Standards Act (FLSA).

In July 2010, the U.S. Department of Labor issued Fact Sheet #73 titled, "Break Time for Nursing Mothers under the FLSA" to provide general information on this requirement.

The general requirements include "reasonable break time for an employee to express breast milk or her nursing child for 1 year after the child's birth each time such employee has need to express the milk" and "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk". Employers must provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother.

Only non-exempt employees are entitled to breaks to express milk under the Fair Labor Standards Act, although individual state laws may impose such requirements.

See a full copy of Fact Sheet #73.

Author: Ann Eberts


FMLA Changes Son/Daughter Definition

An Administrator's Interpretation Letter on June 22, 2010 from the Department of Labor has clarified the definition of son or daughter as it applies to an employee taking FMLA leave to care for a newborn, newly placed or sick child. Using the portion of FMLA referring to the term "in loco parentis," the DOL's letter states that one does not have to have a biological or legal relationship with the child to be able to take FMLA leave. One must look at factors like the age of the child, the degree to which the child is dependent on the person providing care, the amount of support provided and the extent to which duties commonly associated with parenthood are exercised.

The letter specifically refers to an employee caring for his or her unmarried partner's child, as well as a grandparent, aunt or uncle, as examples of those who could stand "in loco parentis," and also says that an employee must only provide "a simple statement asserting that the requisite family relationship exists" in order to support a request for leave. Employers who have questions about challenging a request for FMLA leave under these circumstances are urged to contact the lawyers of the Roetzel & Andress Labor and Employment Group if there are any questions.

Author: Doug Kennedy


New Proposed Rules Governing Reactivation of Claims and Payment of Amputation/Loss of Use Awards

The Ohio Bureau of Workers’ Compensation announced proposed amendments to Ohio Administrative Code (OAC) sections 4123-3-15 and 4123-3-37. The amendments would increase the time before a claim becomes inactive from 13 months to 24 months. The amendments would also change the procedure for amputation/loss of use awards. The revised rule would permit payment of the award based on information contained in the claim file (such as the initial injury report) and change the method of payment to pay the award as a lump sum.

According to the Bureau of Workers’ Compensation, the current 13 month timeframe in OAC 4123-3-15 for a claim to become inactive is too short. After an evaluation, the Bureau determined that a 24 month timeframe will result in increased system efficiency and reduce overall administrative resources necessary to review and respond to reactivation requests.

The Bureau of Workers’ Compensation is also eliminating language in OAC 4123-3-37 regarding lump sum advancements in permanent partial awards as these are to be addressed under a new section, OAC 4123-3-15(C). This section would allow for payment of an award for amputation or loss of use of a body part to be paid to an injured worker for the full amount of the award, as opposed to the current bi-weekly payments. This section has already been revised since its initial draft to allow for continued bi-weekly payments while an order to pay the award is on appeal. One issue which has not yet been resolved, and which may be a major sticking point with the proposed rule, is the conflict the new OAC 4123-3-15(C) would have with Ohio Revised Code Section 4123.57(B), which continues to mandate that such awards be paid out on a weekly/bi-weekly basis.

As developments arise regarding the proposed amendments, we will provide further information and guidance to assist you. Please contact any of our offices to discuss this matter further with one of our workers’ compensation attorneys.


Department of Labor Determines Employers Must Compensate Unionized Employees for Time Spent Changing

The Department of Labor (DOL) issued an Administrative Interpretation on June 16, 2010, requiring employers to compensate unionized employees for putting on and taking off protective equipment that is “required by law, by the employer, or due to the nature of the job.” Section 203(o) of the Fair Labor Standards Act permits employers not to pay employees for time spent changing “clothes” if payment is excluded under the terms of a collective bargaining agreement or barred by the custom or practice. The DOL’s Administrative Interpretation determined that protective equipment is not “clothes” under this exception.

The DOL’s determination reinstates its position taken from 1997 through 2001. In 2002, however, the DOL issued an Opinion Letter determining that “clothes” included protective equipment. The DOL’s latest interpretation is in line with court decisions from several federal courts.

The DOL went a step further and determined that putting on protective equipment may be a principal activity. The practical impact is that when an employee changes into protective equipment, this may mark the beginning of the workday and count as compensable time. In short, once an employee changes into protective equipment, you may be required to compensate them for subsequent activities, such as walking to their work station. Regardless of the terms of the collective bargaining agreement, employers must compensate employees for adding and removing protective equipment if that equipment is required by law or required by the employer.

Author: Jon Secrest           


Fourth Amendment Does Not Violate Police-Department's Search of Employee Text Messages

In a previous blog article posted January 8, 2010, Does the Fourth Amendment Protect Text Messages?, we reported that the United States Supreme Court granted a petition for certiorari in City of Ontario v. Quon, a Ninth Circuit Court of Appeals case in which the Circuit Court held that Police Sergeant Quon's Fourth Amendment rights were violated when sexually explicit text messages sent to and from his department-owned pager were accessed by the City.

On June 17, 2010, the United States Supreme Court reversed the Ninth Circuit Court of Appeals' decision and held that the City of Ontario did not violate Quon's Fourth Amendment rights by conducting a search of his text messages. In its decision, the Court stopped short of deciding whether Quon actually had a reasonable expectation of privacy in his text messages.

To keep its holding narrow and avoid far-reaching implications, the Court assumed Quon had a privacy expectation and that the Fourth Amendment applied. Despite this assumption, the Court held that Quon's privacy rights were not violated because the search was justified by a legitimate work-related reason, and the search was within scope. The City's work-related reason was to determine whether the character limit in its wireless contract was adequate to meet its needs when the City noted repeated overages. Specifically, the City wanted to know if officers were being forced to pay out of their own pockets for work-related expenses, or if the City was paying for extensive personal communications. With respect to Quon, the search was not found to be excessive because his message transcripts were deemed an efficient and expedient way to determine which factor caused his overages. Although Quon occasionally exceeded his monthly allotment, transcripts were only reviewed for two months and all messages sent while off-duty were redacted.

The Court discussed the City of Ontario's policy that employees had no expectation of privacy in messages transmitted on department-owned pagers, however, it also stated that a determination would need to be made whether that policy was overridden by management when arrangements were made for officers to pay for their overages rather than having their text messages audited. The Court did not answer this question because the case was resolved the case on other grounds. Although private employers are not bound by the Fourth Amendment, this is a reminder to all employers that employment policies, even well-drafted ones, can be undermined and even become ineffective when not properly enforced.

Author: Ann Eberts


New Notice Required Under Department of Labor Final Rule

On January 30, 2009, President Obama signed Executive Order 13496, which required certain federal contractors and subcontractors to provide notice to employees of their rights to organize and bargain collectively under the National Labor Relations Act (NLRA). On May 20, 2010, the U.S. Department of Labor (DOL) issued its final rule regarding the new workplace notice requirement. The new posting rule becomes effective on June 19, 2010.

The DOL final rule requires that federal agencies must include a clause mandating the posting of the employee labor law notice in most contracts for an amount in excess of $100,000 solicited on or after June 19th. Once the clause is included in the government contract, the contractor must also include that clause in each subcontract for an amount in excess of $10,000. The requirement also extends to subcontractors entering into subcontracts in excess of $10,000. However, contractors and subcontractors excluded from the definition of “employer” under the NLRA (e.g., carriers subject to the Railway Labor Act, states and political subdivisions) are not subject to the rule.

The required notice states the rights of employees to:
  • organize a union
  • form, join, or assist a union
  • bargain collectively through a representative of their choosing
  • discuss terms and conditions of employment with coworkers or a union
  • take action to improve working conditions by raising complaints with their employer or seeking help from a union
  • strike and picket

  • refrain from participating in any of these activities
The notice also provides examples of prohibited conduct by employers and by unions. Finally, the notice indicates that employees should contact the National Labor Relations Board if they believe their rights or the rights of others have been violated.

The notice should be placed conspicuously in and around plants and offices so that it is prominent and readily seen by employees, preferably where other notices to employees are posted.

Author: Ryan Bonina


OSHA Announces Proposed Revisions to Fall Protection Standards

The Occupational Safety and Health Administration (OSHA) announced proposed revisions to the rule governing fall protection standards in the Federal Register on May 24, 2010. OSHA intends the revised rule to reduce the number of fall-related employee deaths and injuries by updating the rule to include new technology, such as personal fall protection systems. According to OSHA, the revised rule “reorganizes the rule in a clearer, more logical, manner and provides greater compliance flexibility.” OSHA also drafted the rule in simpler language in order to make it easier to understand.

The proposed rule would revise the walking-working surfaces standard (Subpart D) to reflect current industry practices and national consensus standards, harmonize the standard with construction and maritime standards, and use performance-oriented language rather than specification-oriented language.

The new rule would also revise the personal protective equipment (PPE) standard (Subpart I) to include new requirements for fall protection equipment. Currently, this standard contains general requirements for all types of PPE, but does not specifically contain criteria for fall protection PPE. The new rule would add this specific criteria, which would be codified as 29 C.F.R. §1910.140. OSHA proposes to amend a number of general industry standards that already set a duty to use fall protection PPE by requiring that the PPE meet the new requirements in §1910.140. Finally, OSHA proposed adding two appendices to Subpart I to provide examples of test methods and procedures that will assist employers and PPE manufactures in complying with the criteria in the standard.

For more information, view the entire proposed rule at http://edocket.access.gpo.gov/2010/2010-10418.htm.

Author: Nathan Pangrace


Ohio Court Acknowledges that Supervisor can be Individually Liable, but Affirms Summary Judgment

On April 30, 2010, the Sixth Circuit Court of Appeals issued its decision in Butler v. Cooper Standard Automotive, Inc., Case No. 09-3349, affirming summary judgment in favor of the plaintiff’s former supervisor.

The plaintiff, Jimmie Butler, filed suit against both his former employer and former supervisor alleging race discrimination, hostile work environment and retaliation in violation of state and federal law. The district court granted summary judgment in favor of the named defendants finding that the plaintiff could not show that his employer’s legitimate reasons for his termination were merely pretext for discrimination and that there was no allegation of discrimination severe and pervasive enough to create a hostile work environment.

Because the employer had filed for bankruptcy protection, the Court of Appeals only addressed whether summary judgment was appropriate as to Butler’s supervisor, Timothy Barnhisel. Citing an earlier Ohio Supreme Court case, the Court of Appeals first acknowledged that a supervisor may be held jointly and/or severally liable with his or her employer for discriminatory conduct of the supervisor in violation of Ohio Revised Code Chapter 4112. This rule is in contrast with federal case law, which provides that an individual cannot be liable for violations of Title VII. Wathen v. General Electric Co. (C.A.6 1997), 115 F.3d 400.

The Court of Appeals concluded that the plaintiff had not created a question of fact as to whether his termination was the product of his supervisor’s discriminatory conduct. The Court noted that Mr. Barnhisel was not involved in the incident leading to the termination of Butler’s employment. The Court also found that there was insufficient evidence that Mr. Barnhisel unlawfully discriminated against Mr. Butler in assigning work in an effort to get him fired.



Roetzel & Andress Expands to New York to Enhance Client Service

We are pleased to announce the addition of Roetzel & Andress' New York office, located at 245 Park Avenue in New York City, to better serve our existing and growing client base. This office complements the firm's existing operations in Florida, Ohio and Washington, D.C.

According to Timothy J. Ochsenhirt, chairman and chief executive officer of Roetzel & Andress, "New York City serves as the nation's financial capital, and the needs of the companies resident and transacting business there are well-matched with our firm's strengths."

A number of the firm's New York-licensed attorneys provide complex legal services in areas including sophisticated business transactions in the capital markets arena, securities litigation, securitization, banking and finance, health care litigation, white collar and criminal defense, and commercial litigation.

With this new market entry, Roetzel & Andress continues to expand its geographic footprint across the eastern U.S.


Fair Labor Standards Act Requirement Buried in Health Care Reform

An unheralded and little discussed portion of the Patient Protection and Affordable Care Act, signed into law by President Obama on March 23, 2010, amends the Fair Labor Standards Act (FLSA). 29 U.S.C. section 207(r)(1) now requires employers to provide “a reasonable break time for an employee to express breast milk…” This requirement continues for one (1) year after the birth of the employee’s child. The amendment also requires employers to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public…” in which to express breast milk. Fortunately, employers are not required to compensate employees for this break; however, several concerns are immediately raised by the amendment. For example, what is a reasonable break? 10 minutes? 30 minutes? An hour? This is an issue that will be determined by the courts or through regulations issued by the Department of Labor as the law is not clear. Additionally, some employers may find it difficult to provide a place that is shielded from view and free from intrusion.

This requirement applies to every employer. If an employer has fewer than 50 employees, it may be excluded from the requirements of the amendment, but only if permitting the breaks would cause an “undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” This means the burden is on the employer to demonstrate an undue hardship.

The amendment specifically provides that it will not preempt state laws that afford greater protections to employees. Ohio and Florida currently have no such laws. Interestingly, the Supreme Court of Ohio ruled in August 2009 that an employee terminated for taking unauthorized breaks to pump breast milk was not discriminated against by her employer. Allen v. totes/Isotoner Corp., 129 Ohio St.3d 216. The outcome of this case would be drastically different today given the amendment and the requirement to provide a reasonable break.

Author: Jon Secrest


Municipality May Adopt Overtime Exemption Without Giving Notice to Employees

On March 17, 2010, the First Circuit Court of Appeals issued its decision in Calvao v. Framingham, First Cir. Case No. 09-1648, affirming summary judgment for the town of Framingham, Massachusetts.

Framingham police officers filed a class suit against their employer, claiming that the town had failed to pay sufficient overtime wages in violation of the Fair Labor Standards Act (FLSA). The plaintiffs asked that the district court issue declaratory judgment that Framingham was not eligible for the FLSA’s public safety exemption because the town failed to give notice to affected employees. Under the FLSA, nonexempt employees other than public safety personnel are generally entitled to payment “at a rate not less than one and one-half times” their regular wages for any time worked in excess of 40 hours in a seven day period. However, the public safety exemption sets a higher threshold number of hours that must be worked in a 28 day work period, or a proportional number of hours in a shorter work period of at least seven days, before public safety personnel are entitled to overtime compensation. The Secretary of Labor set the limit for law enforcement personnel to 171 hours over a 28 day period, or about 43 hours every seven days.

In affirming the district court’s decision to grant summary judgment to the town of Framingham, the court of appeals first discussed the history of the exemption at issue. The court emphasized that nothing in the relevant statute specifies that a public employer is required to provide notice to employees. Furthermore, the court’s review of the legislative history of the exemption revealed that Congress explicitly rejected a proposal that would have mandated employee agreement before the exemption was adopted. Based on its analysis, the court specifically rejected the plaintiffs’ argument that Framingham was not eligible for the public safety exemption because it had not given notice to the police officers’ union or individual police officers prior to adopting the exemption.

Author: Ryan Bonina


HIRE Act Provides Incentives for Employers

On March 18, 2010, President Obama signed the Hiring Incentives to Restore Employment (HIRE) Act into law. The HIRE Act affords private sector employers (including not-for-profit agencies and private colleges and universities) a Social Security payroll tax exemption if the employer hires individuals after February 3, 2010 who have been unemployed for at least 60 days. This savings will apply to the eligible employer’s portion of the tax paid between March 18, 2010 and January 1, 2011 and an eligible employer can receive up to $6,622 per qualified worker it hires during the relevant time period. Importantly, there is no limit to the number of qualified workers an employer may hire to take advantage of the HIRE Act. However, eligible workers must attest in writing that they have not been employed for more than 40 hours in the past 60 days.

Employers will also receive a tax credit in the lesser amount of $1,000 or 6.2% of the wages paid if they retain the qualified new employee for at least 52 consecutive weeks. To be eligible for that credit, an employer must pay the qualified new employee, during the second half of that 52-week period, at least 80% of what it paid the employee during the first half of that 52-week period.

The HIRE Act also includes a provision extending the small business “expensing” tax break for another year. This allows small businesses to write off up to $250,000 of certain capital expenditures in lieu of depreciating those costs over time. Without this one-year extension, the deduction would have only been $125,000 with the rest of the costs recovered over time through depreciation.


Ohio Supreme Court Upholds Law Limiting Workplace Intentional Torts

In two separate decisions issued on March 23, 2010, the Supreme Court of Ohio upheld the constitutionality of an Ohio law that limits the ability of workers injured on the job to sue their employers for “workplace intentional torts.” The statute at issue, Ohio Revised Code 2745.01, states that a worker bringing an intentional tort claim against his or her employer must prove that the employer acted “with a deliberate intent to cause injury” to the worker.

In Kaminski v Metal & Wire Products Co., the Court held in a 6-1 decision that R.C. 2745.01 did not violate the Ohio Constitution. The plaintiff asked the Court to consider her claim under the Court’s previous standard stated in Fyffe v. Jeno’s Inc., which held that an injured worker may sue for an intentional tort when she can prove that her employer knew about a workplace condition that was “substantially certain to cause injury” to the worker. The court rejected her argument, noting that the Ohio Constitution grants the legislature wide authority to enact laws regulating wages, hours and workplace conditions. As a result, the legislature did not exceed its authority by enacting R.C. 2745.01 and limiting workplace intentional torts.

In a separate decision, Stetter v. R.J. Corman Derailment Services, the Court answered a series of state law questions submitted by the U.S. District Court for the Northern District of Ohio. It found that R.C. 2745.01 does not violate the provisions of the Ohio Constitution that guarantee trial by jury, a remedy for damages, open courts, due process, equal protection of the laws, or the separation of powers between the legislative and judicial branches of government. The Court also held that while R.C. 2745.01 restricts the right of a worker to bring an intentional tort claim against the employer, it does not eliminate that right entirely.

Kaminski and Stetter are a resounding victory for R.C. 2745.01 and its limitation on workplace intentional torts. The decisions also bring Ohio in line with a large majority of states that apply standards the same as or similar to those contained in R.C. 2745.01. Additionally, the decisions preserve and strengthen Ohio’s “no-fault” workers’ compensation system by assuring that the system maintains a balance of sacrifices between employers and employees.

Author: Nathan Pangrace


Severance Payments Not Considered Taxable Under FICA

On February 23, 2010, the United States District Court for the Western District of Michigan, Southern Division, decided the case of In re: Quality Stores, Inc., et al., Debtors; United States of America v. Quality Stores, Inc., 2010 WL 679136, holding that severance payments made by Quality Stores to employees in connection with store closings are not taxable for purposes of Federal Insurance Contributions Act (FICA) taxation. Specifically, the court found that when severance payments are made because an employee involuntary left the company due to a direct reduction in workforce or the discontinuance of a plant or operation, those payments were not FICA-qualifying “wages.” The basis for the ruling is that severance payments fall within the exception found in 26 U.S.C. § 3402(o)(2) for “supplemental unemployment compensation benefits.”

In reaching this ruling, the District Court reasoned that as a general matter in enacting the FICA provisions of the Tax Code, Congress intended to impose FICA taxes on a broad range of employer-furnished remuneration; however, that purpose is not unlimited. Specifically, the Court pointed out that the statutory sections clearly designate that a line is to be drawn on the taxation of employee financial benefits; otherwise, such benefits become the basis of the very taxes collected to return to the employee as benefits. Ultimately, the Court was persuaded that the severance payments at issue were properly viewed as wage-replacement social benefits, not taxable remuneration for the employee’s services or wages and, therefore, they were not subject to taxation for FICA purposes.

Stay tuned. This issue can be appealed to the Sixth Circuit Court of Appeals by the United States.

Author: Aretta Bernard


Religious School Teacher Does Not Qualify for “Ministerial Exception” Under the ADA

On March 9, 2010, the Sixth Circuit Court of Appeals issued its decision in EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, Sixth Cir. Case No. 09-1134/1135, vacating an award of summary judgment in favor of the employer.

This case arose out of the termination of Plaintiff Cheryl Perich’s employment as a teacher at Hossana-Tabor School. Hossana-Tabor School, which is affiliated with a Luthern Church, was advertised as providing a “Christ-centered education.” Ms. Perich taught both a religion class and secular subjects using secular textbooks. She also led each class in prayer three times a day. The court concluded that Ms. Perich’s activities devoted to religion consumed approximately 45 minutes of the seven-hour school day.

After Ms. Perich filed a complaint against Hossana-Tabor alleging retaliation in violation of the Americans with Disabilities Act (ADA), the United States District Court granted the employer’s motion for summary judgment, concluding that it could not inquire into the plaintiff’s claims because they fell within the “ministerial exception” to the ADA. The “ministerial exception” allows religious entities to give employment preference to individuals of a particular religion and to require that applicants and employees conform to the religious tenants of the organization. For the ministerial exception to bar an employment discrimination claim, (1) the employer must be a religious institution, and (2) the employee must be a ministerial employee.

The Sixth Circuit Court of Appeals, in a decision of first impression in the circuit, held that Ms. Perich was improperly classified as a ministerial employee. In making its decision, the court emphasized that Ms. Perich’s “primary duties” were secular. The court also concluded that in analyzing Ms. Perich’s ADA claim, the District Court would not improperly be required to analyze church doctrine. This decision serves as a reminder to employers to thoughtfully and carefully analyze any decision to rely upon exceptions to statutes such as the ADA. As demonstrated by this court’s decision, these exceptions are often narrowly construed to protect employees.

Author: Ryan Bonina


Supreme Court of Ohio Rules that Statutory Penalties for Employer’s Violation of Prevailing Wage Laws are Mandatory

On March 2, 2010, the Supreme Court of Ohio ruled that statutory penalties for an employer’s violation of Ohio’s prevailing wage statute are mandatory. In Bergman v. Monarch Constr. Co., Slip Op. 2010 Ohio 622, the Court considered an employee-initiated lawsuit against a contractor for failure to pay prevailing wages on a public improvement project for Miami University. The Court held that when judgment is rendered in favor of employees, courts must assess damages for the amount of unpaid or underpaid wages and also the financial penalties set forth in Ohio Revised Code § 4115.10(A). The Supreme Court’s decision reversed the ruling of the 12th District Court of Appeals.

Ohio’s prevailing wage laws generally require that workers employed on public improvement construction projects must be paid according to a wage scale approximating the hourly rates received by union workers performing similar work in that particular area of the state. In the case before the Supreme Court, the workers filed a private lawsuit. Ohio’s statute also permits workers to file claims with the Ohio Department of Commerce, which has investigatory powers.

The lawsuit considered by the Supreme Court was brought by masonry workers and named Miami University, Monarch (the general contractor), and the subcontractor that employed the masons as defendants. The trial court found in favor of the masons and awarded an amount of underpaid wages. The trial court did not assess penalties against Monarch in an amount equal to 25 percent of the underpaid wages pursuant to Ohio Revised Code 4115.10(A) or a penalty equal to 75 percent of the underpaid wages payable to the Ohio Department of Commerce. The workers appealed, and the 12th District Court of Appeals upheld the trial court’s decision and determined that court’s are granted discretion whether to assess the penalties set forth in Ohio Revised Code 4115.10(A).

The Supreme Court determined that courts do not have discretion to assess penalties; rather, the penalty provision of the statute is mandatory. The Supreme Court stated:
“To deny an underpaid employee the additional 25 percent penalty is contrary to the language of R.C. 4115.10(A). ... The statute is also clear in its direction with regard to the 75 percent penalty: it shall be paid to the director of commerce, and it is used for enforcement of the prevailing-wage laws. ... In this case, the 'clear and unequivocal legislative intent' as expressed in the statute is that the 75 percent penalty is to be paid whenever the director of commerce determines that there has been a prevailing-wage underpayment and the determination becomes final.”

Based on this decision, employers and contractors generally cannot avoid the penalty provisions of Ohio Revised Code 4115.10(A), which drastically increases monetary liability for violations of prevailing wage laws. There is, however, one exception to the mandatory nature of the assessment of penalties. Pursuant to Ohio Revised Code § 4115.13(C), if the Director of the Department of Commerce finds that an underpayment of wages was the result of a misinterpretation of the prevailing-wage statutes or an erroneous preparation of the payroll documents, no further proceedings will occur and no penalties are assessed if the employer also makes restitution in the amount of the underpaid wages.

Author: Jon Secrest


Hiring over 40 doesn't mean they cannot sue for age discrimination

Many employers believe that one of the best defenses in an age discrimination case is the fact that the plaintiff was hired when he or she was over the age of 40. That is, the thought is that employers clearly could not be prejudiced against older employees if they are willing to hire employees already within the protected age class. The recent case of Hidy Motors from the second appellate district in Ohio warns otherwise, however. Subsequent conduct by the employer that shows a discriminatory intent against an individual based upon his or her age will still trump any prior decision to hire that individual when he or she was already within the protected age class, especially when there is evidence of discrimination directed specifically at the older employee. In Hidy Motors, the defendant, a 67-year-old salesman was initially sued for violation of a non-compete agreement. He then counterclaimed for age discrimination and hostile work environment. The court reversed a prior summary judgment rendered in favor of Hidy Motors on the plaintiff’s age discrimination counterclaim.

The Hidy Motors case also helps emphasize the fact that even though a supervisor or manager may be a jerk to everybody at the facility and may use vulgar language when addressing other employees, if that particular manager or supervisor still directs specific comments towards a person and references the person’s age, there may be sufficient evidence to go forward on an age discrimination/hostile work environment claim. Such contradicts the "equal opportunity offender" defense often employed by employers to avoid the harmful effects of an abusive manager.

Hidy Motors provides several good lessons to employers. You should always counsel and/or discipline any managers or supervisors that show aggressive and abusive behavior towards their employees. It does not matter that the behavior is pointed toward all employees if some of the employees fall within a protected class. It just takes one inappropriate comment as part of that abusive behavior to lead to litigation like that in the Hidy Motors case.

Author: Charlie Smith


Increase in Wage and Hour Lawsuits Likely to Continue

The Obama administration allotted $117 billion for the U.S. Department of Labor (DOL) in the proposed budget for the 2011 fiscal year, setting aside $25 million for the DOL to combat employee misclassification. In total, the DOL Wage and Hour Division expects to hire 90 new investigators to focus on employers who misclassify employees as independent contractors and deprive them of benefits such as overtime.

The result is that employers are likely to face more enforcement actions from the DOL related to wage and hour issues. This follows the current trend of increasing actions brought under the Fair Labor Standards Act (FLSA). Since 2004, there has been an 11% increase in wage and hour enforcement actions and a 77% rise in private lawsuits related to wage and hour disputes by the DOL.

An employer’s classification of an individual as an independent contractor bears no weight as the DOL and courts look to a number of factors to determine whether an individual is an independent contractor or employee. Such factors include:
  • an employer’s right to control the manner and means by which work is accomplished;
  • the skill required to perform specific job duties;
  • the duration of the relationship between the parties;
  • the employer’s discretion over when and how work is performed; and
  • the method of payment.
Unfortunately for employers, there is no bright line test to determine whether an individual is an employee or an independent contractor and the DOL and courts examine such relationships on a case-by-case basis.

Even more troubling for employers is the rise in private class-action lawsuits related to wage and hour issues. In 2009, Wal-Mart settled a FLSA suit for $11 million; Lowe’s paid $29 million; and Wachovia paid $39 million. These suits are often fact-intensive and employers stand little chance of succeeding on a motion to dismiss claims brought under the FLSA. Further, the FLSA’s attorney fee provision for prevailing plaintiffs results in increased monetary liability for employers. It is important to ensure that you are complying within FLSA regulations as to these issues.

Author: Jon Secrest


Appellate Court Declares Six-Year Statute of Limitations on Workers’ Compensation Subrogation Claims

In an unusual twist, the Second District Court of Appeals of Ohio ruled that a claim for subrogation under Ohio’s workers’ compensation subrogation statute is governed by the six-year statute of limitations and not the two-year statute applicable to personal injury and negligence claims. In the case of Corn v. Whitmere, an employee sued a third party tortfeasor for injuries allegedly sustained in a motor vehicle accident arising during the course and scope of his employment. He also joined his self-insured employer as a defendant. The employer then filed a cross claim against the tortfeasor seeking reimbursement for workers’ compensation benefits paid pursuant to Ohio’s workers’ compensation subrogation statute. The trial court dismissed the employer’s cross claim as untimely since it had been filed more than two years after the date of the employee’s injury.

The Court of Appeals disagreed. The Court ruled that in the usual insurance setting, the subrogated insurer stands in the shoes of the insured-subrogor and has no greater rights than those of the insured-subrogor. Therefore, if the insured’s claim against the tortfeasor is based on negligence, the subrogated claim must also be based on negligence and is governed by the same two-year statute of limitations. The self-insured employer’s cross claim for workers' compensation subrogation, however, is not applied in the same way. Instead, the self-insured employer’s claim arises out of a statute. As a result, the cross claim is subject to the six-year statute of limitations found under Ohio Revised Code §2305.07.

Self-insured employers in Ohio should take note. Even though an injury may be more than two years old and the injured worker has never asserted a claim against the third party tortfeasor, the self-insured employer could still bring a claim under Ohio’s workers’ compensation subrogation statute for up to six years after the date of the employee’s injury.

Author: Charlie Smith


Male Nurse Claims Sleep Deprivation for Loss of Job

A recent Sixth Circuit case involving the firing of a male nurse who claimed to have sleep deprivation provided an interesting analysis of discrimination cases involving reverse sex discrimination and the American with Disabilities Act (ADA). The male nurse was terminated because he failed to complete his charting responsibilities during his night shift. He claimed that he was let go because of his sex, and also that his employer failed to accommodate his disability, namely sleep deprivation.

The Court said the man failed to show sufficient evidence of reverse sex bias, even though he claimed that a female nurse didn't properly chart one patient. The facts were that the male nurse failed to chart four patients, so his actions were more serious. The court also provided guidance on how a plaintiff must establish a prima facie reverse discrimination case, saying that a plaintiff must show "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

In his ADA claim, the male nurse only provided uncorroborated testimony as to his sleeping two to four hours per night. He also claimed that he asked to be transferred to the day shift, an allegation denied by the employer. The Court, while recognizing that sleep is a major life activity under the ADA, said the nurse did not prove that his sleep issues rose to the level of substantial impairment, saying that "sleeping between two and four hours per night, while inconvenient, simply lacks the kind of severity we require of an ailment before we will say that the ailment qualifies as a substantial limitation."

Author: Doug Kennedy


COBRA Extends Health Insurance Continuation Premium Subsidy

As part of the Defense Appropriation Act for 2010, the 65% subsidy for COBRA continuation premiums has been extended up to 15 months for eligible employees. The subsidy was previously limited to 9 months. Eligible workers will pay only 35% of their premiums to their former employers. To qualify, a worker must have been involuntarily separated between September 1, 2008 and February 28, 2010. This only applies to employees who are employed with a company that maintains more than 20 employees and has previously provided health insurance coverage. Also keep in mind the 65% subsidy is reimbursed to the coverage provider through a tax credit in most situations.

In Ohio, state continuation coverage is also available under Ohio’s “mini-COBRA” program. If an employee has less than 20 employees, those employees can receive continuation coverage under the state continuation law rather than the federal law. Coverage under the state’s program has been extended up to 12 months and no longer requires proof of entitlement to unemployment compensation in order to be eligible. As long as the employee can show that they were involuntarily terminated and for reasons other than gross misconduct, they are eligible. The small employer will not be obligated to pay any portion of the premium. The former employee will pay 35% of the premium and the insurance company will claim the credit from the IRS for the 65% subsidy of the premium not paid by the former employee.

Therefore, employees of both small and large employers have additional assistance available to them for extending health insurance coverage during these hard times. Please consult your counsel if you have any questions concerning an employee’s eligibility or any further extension of benefits.

Author: Charlie Smith


Termination Persists Despite Doctor's Notes

In dismissing a claim for violation of the FMLA , the United States District for the Eastern District of Kentucky ruled that the plaintiff had failed to provide Comair with adequate notice that she suffered from a serious health condition .

Under Comair’s leave of absence policy, employees were required to call in and provide prior notice of any absence from work. Also, upon returning to work, an employee was expected to provide a written excuse or doctor’s note for the absence. During the last year of the plaintiff’s employment, she arrived late or was absent from work on numerous occasions. However, for each of her absences, she would supply a doctor’s note upon her return to work. On June 25, 2007, the plaintiff was issued a final written warning without suspension as a result of accruing nine attendance events in the previous year. She was also advised that any future attendance events may lead to her termination.

Less than two weeks after receiving this warning, the plaintiff again was absent from work. Upon returning to work, the plaintiff did not provide Comair with a doctor’s note for the previous two days. Sometime within the next two to four days, the plaintiff did submit a FMLA information packet which included a certification completed by her physician. On July 12, 2007, the plaintiff was terminated due to her excess absences. One month after her termination, her doctor sent a letter to Comair describing the severity and character of the plaintiff’s headaches and requested that Comair reconsider her termination.

In granting Comair's motion for summary judgment the court noted that even though the plaintiff did provide a doctor’s slip for a number of her earlier absences, the doctor slips provided absolutely no information as to the reason for her absence. The court further concluded that the slips did not even provide sufficient information for Comair to question the leave or to inquire further as to whether there was a serious health condition involved.

With regards to the FMLA packet, the court focused on the timing of the delivery of the information. The plaintiff testified that she did not provide the FMLA until several days after she returned to work. The court ruled that since plaintiff violated Comair’s notice provisions, Comair was justified in terminating her employment.

Employer's should take note from the Comair decision that every leave of absence that is supported by a doctor’s note does not necessarily equate to a protected FMLA leave. It is still the employee’s responsibility to provide sufficient notice to the employer that they suffer from a serious health condition. Also, regardless of whether the employee has a serious health condition, if they do not provide timely notice of their need for leave pursuant to the employer’s policies, they can be terminated.

Author: Charlie Smith


Does the Fourth Amendment Protect Text Messages?

The United States Supreme Court accepted certiorari in City of Ontario v. Quon, from a Ninth Circuit Court of Appeals case in which the Court held that police Sergeant Quon's Fourth Amendment rights were violated when sexually explicit text messages sent to and from his department-owned pager were accessed by the city. Although the policy of the City of Ontario was that employees had no expectation of privacy in messages transmitted on department-owned pagers, Quon was told that text messages would not be audited if Quon paid for charges he incurred beyond the city's plan. Quon reportedly exceeded the character limit under the city's plan several times and paid for the extra usage without incident.

The Fourth Amendment to the United States Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, and against unreasonable searches and seizures by the government. The United States Supreme Court holds that reasonableness of a search is determined by assessing:
  • the degree to which it intrudes upon an individual's privacy, and
  • the degree to which it is needed for the promotion of legitimate governmental interests.
In this case, the Ninth Circuit found that Quon did have a reasonable expectation of privacy in his text messages based upon the city's informal policy that the text messages would not be audited if overages were paid. It also held that the search was unreasonable in scope because less intrusive methods were available. For example, the court suggested it would have been less intrusive if the Department had issued a warning to Quon that for the month of September, he would be forbidden from using his pager for personal communications and that the contents of all of his messages would be reviewed. Another less intrusive method would have been to ask Quon to redact personal messages and grant permission to the Department to review the redacted transcript.

Although private employers are not bound by the Fourth Amendment, this case presents a sobering reminder for all employers that even well-drafted employment policies that are not properly enforced leave room for liability exposure.
Author: Ann Eberts