Sixth Circuit Case Demonstrates Risks in Monitoring Employee Personal Emails

The Sixth Circuit Court of Appeals recently considered a case in which an employer refused to renew an employee’s contract after learning through email surveillance that she planned to sue for age and gender discrimination. In Fields v. Fairfield County Board of Developmental Disabilities, No. 12-3005, (6th Cir. Dec. 6, 2012), the plaintiff worked as an administrative assistant to the superintendent of the county board. After the board passed her over for a promotion, she sent several emails to a former employee complaining about the board’s discriminatory practices. The plaintiff stated she did not “have the right anatomy” for the new position. She also stated that a coworker received a raise because he was less than 40 years old.

During this time and unbeknownst to the plaintiff, the board superintendent began having all of the plaintiff’s emails forwarded to him. The superintendent claimed he was concerned about the plaintiff’s opinion of him and suspected that she was discussing their work relationship with others. Additionally, the human resources director asked the plaintiff’s supervisor to begin documenting his conversations with the plaintiff because she “heard through the grapevine” that the plaintiff was threatening to sue the board for discrimination. One year later, the board placed the plaintiff on administrative leave because of problems with her job performance. The superintendent stated in the plaintiff’s performance review that he hesitated to give her confidential materials because of her negative attitude and mistrust in him. He specifically mentioned the fact that the plaintiff had indicated to others that she might sue the board. When the board elected not to renew her employment contract, the plaintiff sued the board alleging that it retaliated against her for complaining about discrimination.

The district court granted summary judgment in favor of the board, and the Sixth Circuit affirmed. The court held that the plaintiff had successfully demonstrated a prima facie case of retaliation. The superintendent specifically mentioned the plaintiff’s statements about suing the board, which he learned about through the intercepted emails, as one of the reasons for the mistrust between them. Because lack of trust was a basis for refusing to renew the plaintiff’s contract, a causal connection between the two existed. So what saved the board from litigating a costly trial? The board had documented the plaintiff’s job performance problems over the course of several years. She repeatedly failed to follow the superintendent’s instructions and perform tasks in a timely manner. The plaintiff did not dispute these job performance issues. As a result, she failed to show that the board’s nondiscriminatory reasons for not renewing the contract were pretextual.

The employer in this case dodged a bullet. Terminating an employee who has complained about workplace discrimination is risky business, especially when the employer’s knowledge of the complaints comes from covertly screened personal emails. The employer in Fields v. Fairfield County was saved by the fact that it had maintained a thorough written record of the employee’s job performance problems. What lesson does this case teach employers? Before terminating an employee based on job performance problems, make sure the problems are well documented. Develop written policies and apply those policies in a consistent, neutral manner. These steps are crucial to successfully defending a lawsuit by a discharged employee.

Contact: Nathan Pangrace


Hot Topics in Ohio Workers’ Compensation for 2013

As another year rapidly ends, it is time again for a prospective look at the year ahead. As an Ohio workers’ compensation practitioner, I see three issues that may have significant effects on the workers’ compensation system in the near future:

(1) Healthcare reform (aka Obamacare). With the passage of the Patient Protection and Affordable Care Act (PPACA) in 2009 and its upholding by the Supreme Court earlier this year, most businesses are readying themselves for significant changes regarding employee healthcare in 2013. One potential upside for employers is that more pre-existing conditions may be covered under individual healthcare and thus less of an issue in the workers’ compensation realm. One downside, however, is that increased national regulation will most likely entail additional costs for employers to ensure compliance with healthcare and workers’ compensation laws.

(2) Immigration legislation. The passage of immigration reform would be significant, as it would most likely go to the heart of what defines an employer-employee relationship. Laws that would lessen restrictions on undocumented immigrants may have the unintended consequence of encouraging undocumented workers to file claims against alleged employers.

(3) The expanding oil and gas industry. Here in Ohio, as in other areas of the country, the hydraulic fracturing industry is booming. With this rapid expansion, there comes a greater risk for damage to persons and property, especially those individuals who work in the industry. Medical conditions related to hydraulic fracking are as minor as an abrasion or as significant as developing an occupational disease, such as silicosis. Though Ohio will see a welcomed boom in business with the expansion of oil and gas, there will be related costs, and workers’ compensation may be chief among them.



Ohio Supreme Court Clarifies the Employer Intentional Tort Statute

In the recent decision of Houdek v. ThyssenKrupp Materials, N.A., Inc., Slip Opinion No. 2012-Ohio-5685, the Ohio Supreme Court clarified that in order to recover under Ohio’s employer intentional tort statute, R.C. § 2745.01, a plaintiff must show that the employer acted with deliberate and specific intent to injure him. The Court’s holding is a significant result for employers, after a temporary period of confusion on the state of the law.

Ohio has a no-fault workers' compensation system, which gives employees the security of compensation for workplace injuries, while assuring employers that they will not be forced to defend a lawsuit every time an employee claims to have suffered work-related injuries. The employer intentional tort statute provides an exception to this system in cases where the employer commits a tortious act with intent to injure or with the belief that the injury was substantially certain to occur. (R.C.§2745.01(A)) The statute defines the term “substantially certain” as “acting with deliberate intent to cause an employee to suffer an injury, a disease, a condition or death.” (R.C. §2745.01 (B))

This statute and subsequent Supreme Court cases recognizing its constitutionality (Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010–Ohio–1027, 927 N.E.2d 1066 (2010), and Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010–Ohio–1029, 927 N.E.2d 1092 (2010)) marked a significant departure from the more relaxed common law standard. The common law allowed recovery in circumstances where the employee proved that the employer had knowledge of the existence of a dangerous process or condition, that harm to the employee was a substantial certainty, and the employer required the employee to perform the dangerous task.

While the majority of the courts faithfully interpreted the current version of the statute, requiring evidence of deliberate and specific intent to injure on the part of an employer, the language of the statute was prominently challenged by the Eighth District Court of Appeals in Houdek v.ThyssenKrupp Materials N.A., Inc., 8th Dist. No. 95399, 2011-Ohio-1694.

Plaintiff, Bruce Houdek was assigned to work in a narrow aisle in ThyssenKrupp’s warehouse. His coworker forgot about his presence there and drove a sideloader forklift at speed in the same aisle. He pinned Houdek against a scissor lift he had been using, causing significant injuries. Houdek sued ThyssenKrupp claiming the company had intended to injure him by sending him to work in the warehouse aisle, knowing that injury would be certain or substantially certain to occur. The trial court granted summary judgment to ThyssenKrupp, finding that Houdek had failed to prove that ThyssenKrupp had acted with intent to harm him.

Houdek appealed the decision. The court of appeals reversed the trial court and refused to apply the strict language of the statute. It found that the terms “substantially certain” and “deliberate intent to injure” could not mean the same thing, and attributed this statutory language to “a scrivener’s error.” The court of appeals then returned to the common law standard and held that “intent to injure” can be proven by what a reasonable, prudent employer would believe. Thus, ThyssenKrupp could be held liable for Houdek’s injuries if it “objectively believed the injury to Houdek was substantially certain to occur,” notwithstanding the lack of proof of a deliberate intent to injure.

ThyssenKrupp appealed the decision to the Supreme Court, which initially rejected the appeal, causing a temporary confusion about the state of the employer intentional tort. After a motion for reconsideration, the Supreme Court accepted jurisdiction and the case was fully argued in June 2012. On December 6, 2012, the Supreme Court reversed the Eighth District Court of Appeals, holding that the statutory language is clear: a claimant who brings an employer intentional tort claim is required to prove that the employer acted with deliberate intent to cause injury to him. After analyzing the facts, the Court found that the injury was the result of a tragic accident. While the evidence did show that ThyssenKrupp could have taken steps that might have prevented the accident, the evidence did not rise to the level of deliberate intent to injure.

The court’s opinion settles the temporary confusion caused by the Houdek decision in the Eighth District and clarifies, yet again, that “the General Assembly’s intent in enacting [the employer intentional tort statute], is to permit recovery for employer intentional torts only when an employer acts with specific intent to cause an injury.” While we may continue to see other challenges to the statute’s current construction, this is a significant outcome for Ohio employers.

Contact: Klodiana Tedesco


Employer Required to Give UAW Documentation to Support its Competitive Disadvantage Claim

On December 4, 2012, the United States Court of Appeals for the District of Columbia enforced a National Labor Relations Board (NLRB) order requiring an Ohio manufacturer to give the United Auto Workers (UAW) information about customers, market studies, and pricing to support the company’s claim that competitive pressures required that it seek substantial wage concessions from its employees. (KLB Indus. Inc. v. NLRB, D.C. Cir. Nos. 11-1280, 11-1322). Finding that the union had appropriately tailored its request to documents relevant to the claim of competitive disadvantage asserted by the employer during contract negotiations with the union, the Court determined that the NLRB properly found that the employer’s refusal to comply with this request and its subsequent lockout of employees were unfair labor practices.

The employer, KLB Industries, manufactures aluminum extrusions at its facility in Bellefontaine, Ohio. When it came time to negotiate its collective bargaining agreement with the UAW, the company initially demanded a 20 percent reduction in wages based upon its claim that it was facing increased competition from Asian manufacturers, rising production costs, and decreased productivity. Following negotiations, the company eventually advanced a last and final offer, which included an 8 percent wage reduction in the first year of the contract, followed by 2 percent reductions for the second and third year. In response, the union sent the employer a written request for information, including a list of the company’s current customers and customers it had lost, data on price quotes, outsourcing, market studies, and projected savings from the company’s wage proposals.

The company refused to provide the requested information because its “desire to remain competitive in both global and domestic markets is no different from the desire of any business conducting [similar] operations.” Although the company did provide the union with an estimated annual wage savings (one of the requested items of information), it failed to include its underlying calculations or predictions. The company then locked out its union-represented employees and hired replacements.

The union filed unfair labor practice charges, and an NLRB administrative law judge found that the employer’s failure to provide the requested information violated Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§158(a)(1) & (5). The NLRB upheld the administrative law judge’s rulings, and the company petitioned for Court review.

Enforcing the NLRB’s order requiring that the requested information be produced to the union, the Court stated that where the employer raises a competitiveness claim as its central justification for wage concessions, the union is entitled to information verifying that claim. The Court further concluded that the union’s information request was sufficiently narrow because it was targeted to the competitiveness claim relied upon by the company and did not ask the company to open its books and provide generalized financial data concerning profits and management expenses. Thus, the D.C. Circuit denied the employer’s petition for review and enforced the NLRB’s unfair labor practice order.

Contact: Emily Wilcheck


It’s the Most Wonderful Time of the Year…for a Lawsuit: The Perils of Holiday Parties

Holiday parties offer employees an opportunity to celebrate with co-workers and provide employers an opportunity to show appreciation for a year of hard work. They can also offer many opportunities for employers to be named as defendants in lawsuits.

Consider the scenario where an employee falls and injures himself at the holiday party. Whether or not the injury is compensable under workers’ compensation statutes depends on a number of factors, such as where the party was held and whether attendance was mandatory.

Holiday parties are notorious for spawning sexual harassment lawsuits, so think twice before hanging the mistletoe. A supervisor is still a supervisor and in a position of power, even at a holiday party. Further, unwelcome conduct at a holiday party is not analyzed under a different standard simply because the conduct occurred outside work hours or off the employer’s premises.

Liability does not necessarily end when the party ends. Alcohol is a significant contributing factor in conduct resulting in employee injuries and sexual harassment claims , but it is also a cause for concern when employees leave the party. An employee who causes an automobile accident on the way home from the holiday party may also result in liability for the employer.

Fortunately, there are a few things an employer can do to limit its potential liability:
  • Hold holiday parties away from the employer’s place of business;
  • Use third-party vendors to serve alcohol;
  • Stress that attendance at the party is voluntary, and make sure no subtle suggestions are made that attendance would be beneficial to an employee’s career or continued employment. Additionally, make sure employees are aware that time spent attending a holiday party will not be considered hours worked;
  • Don’t hand out bonuses or service awards at the holiday party because doing so increases the perception the party is a work function rather than social event;
  • Invite employees’ spouses or guests. Not surprisingly, the presence of these guests is likely to limit cases of sexual harassment and will help monitor employees’ consumption of alcohol;
  • If serving alcohol, serve food;
  • Stop serving alcohol a couple of hours before the party ends;
  • Make alternative transportation available or provide hotel rooms to employees who have consumed too much alcohol. Even a simple offer to pay for taxis can limit an employer’s liability;
  • Ensure the venue for the party is accessible for individuals with disabilities;
  • If the party is being held at a private club, make sure it is not one with restricted memberships that may give rise to a discrimination claim; and
  • If an incident does occur at a holiday party, such as an employee injury or a report of sexual harassment, follow your policies and procedures related to investigations.
Holiday parties are supposed to be fun, and they still can be while also limiting the potential for liability.

Contact: Jon Secrest

(This is a reposting of Secrest's original blog post dated November 7, 2011)


Ohio Supreme Court Limits Definition of “Deliberate Removal of Equipment Safety Guard” for Employer Intentional Tort Claims

On November 20, 2012, the Ohio Supreme Court issued an opinion in Hewitt v. L.E. Myers Company (2012-Ohio-5317) that substantially limits the definition of “deliberate removal of an equipment safety guard” necessary to create a rebuttable presumption of intent under Ohio’s Employer Intentional Tort Statute, R.C. 2745.01(C). Under Ohio law, employers complying with the state’s workers’ compensation laws are afforded immunity against suits brought by employees for injuries sustained in the course of employment. An exception to this immunity arises when an employee is injured as a result of deliberate, intentional conduct on the part of employer to cause such injury. The Ohio Supreme Court previously recognized in Stetter v. R.J. Corman Derailment Servs., L.L.C. (2010-Ohio-1029), and Kaminski v. Metal & Wire Prods. Co., (2010-Ohio-1027) that the General Assembly, in enacting the current version of R.C. 2745.01, intended to restrict an employer’s liability for intentional tort claims by permitting recovery only when an employer acts with specific, deliberate intent.

Employees unable to meet this high standard of proving deliberate intent often attempt to proceed under R.C. 2745.01(C), which creates a rebuttable presumption of deliberate intent, where the employee can show that he or she sustained injuries as a result of the deliberate removal of an equipment safety guard. In Hewitt, the injured employee argued that the employer deliberately removed an equipment safety guard by failing to instruct him to wear protective rubber gloves and sleeves while working near energized electric lines. The Eighth District Court of Appeals accepted this broadened definition of “equipment safety guard,” construing this phrase to include freestanding items of personal protective equipment.

In the Hewitt decision, the Ohio Supreme Court rejected this attempt to broaden the scope of R.C. 2745.01(C), conclusively stating that “‘equipment safety guard‘ means a device designed to shield the operator from exposure to injury by a dangerous aspect of the equipment.” Moreover, the Court limited the definition of “deliberate removal” as used in the statute to mean “a deliberate decision to lift, push aside, take off, or otherwise eliminate that guard.”

In finding that the phrase “deliberate removal of an equipment safety guard” does not encompass the deliberate removal of any safety-related device, the Court explained as follows:

“To construe ‘equipment safety guard’ to include any generic safety-related item ignores not only the meaning of the words used but also the General Assembly’s intent to restrict liability for intentional torts. * * *Free-standing items that serve as physical barriers between the employee and potential exposure to injury, such as rubber gloves and sleeves, are not “an equipment safety guard” for purposes of R.C. 2745.01(C). Instead, rubber gloves and sleeves are personal protective items that the employee controls.”
The Supreme Court further limited the definition of “deliberate removal” to an employer’s “deliberate decision to lift, push aside, take off, or otherwise eliminate that guard from the machine.” Thus, an employer’s failure to instruct an employer to wear protective items does not amount to a deliberate removal of an equipment safety guard within the meaning of R.C. 2745.01(C) so as to create a rebuttable presumption of intent.

The Court’s decision brings the definition of “deliberate removal of equipment safety guard” back in line with the intent of the General Assembly in enacting R.C. 2745.01 limiting recovery for employer intentional tort only to those instances where an employer acts with specific intent to cause an injury.

Roetzel & Andress participated in the Hewitt case by submitting an amicus brief. A full copy of the Court’s opinion can be found here:


Contact: Emily Wilcheck


Employee Noncompete Agreements Transfer to the Surviving Company After a Merger

In a recent decision, the Ohio Supreme Court reconsidered and reversed its earlier ruling addressing whether or not a post-merger successor company “stands in the shoes” of the original company with respect to enforcing employee noncompete agreements.

In Acordia I (Acordia of Ohio, L.L.C. v. Fishel, Slip Opinion No. 2012-Ohio-2297), the Court held that when two companies merge and one ceases to exist, the surviving company does not “stand in the shoes” of the disappearing company with regard to enforcing noncompete agreements between the acquired company and its employees unless the agreements included specific language extending the employees’ obligations not to compete not only to the original employer, but also its corporate “successors and assigns.”

On reconsideration, the Court explained that its holding in Acordia I was based on a misreading of a 1971 Ohio Supreme Court opinion and, was therefore, erroneous. Therefore, in Acordia II (Acordia of Ohio, L.L.C. v. Fishel, Slip Opinion No. 2012-Ohio-4648), the Court held that a post-merger successor company does “stand in the shoes” of the original contracting company and may enforce employee noncompete agreements even when “successors and assigns” language is omitted. The Court did, however, reinforce the well-established and traditional principles of law that regulate and govern noncompete agreements by emphasizing that employees may still challenge the continued validity of noncompete agreements based on whether the agreements are reasonable and whether the merger created additional obligations or duties so that the agreements should not be enforced on their original terms.

The Court reached the correct result on reconsideration and, in accordance with R.C. 1701.82(A)(3), it is the law in Ohio that all assets and property, including employment contracts and agreements, and every interest in the assets and property of each constituent entity transfer through operation of law to the resulting company post-merger.

Contact: Alexander Kipp


Mandamus Relief - Orders of the Industrial Commission of Ohio

In State ex rel. KPGW Holding Co., L.L.C. v Indus. Comm., 2012-Ohio-5035 the Tenth Appellate District of the Court of Appeals held that mandamus relief was not available when a party had failed to appeal an order of the Industrial Commission. This was an unusual case as the claimant had filed two claims requesting that each be allowed for bilateral carpal syndrome. The first claim was denied by a District Hearing Officer. Seven months later the claimant filed a claim for the same medical condition and that claim was allowed by a District Hearing Officer. The employer did not appeal this order.

The employer sought mandamus relief to request that the Industrial Commission be ordered to exercise continuing jurisdiction as the employer contended that the second claim was barred by res judicata. In order to be entitled to mandamus relief a party must establish that there is not an adequate remedy in law. Here, the employer had the opportunity to appeal the allowance of the second claim and did not do so. The court held that mandamus relief cannot be provided when the employer had “…an adequate administrative remedy” which was this appeal.

This case shows that all orders of the Industrial Commission and Bureau of Workers’ Compensation must always be closely scrutinized. When in doubt, I suggest that one seek legal counsel and avoid any unexpected results.

Contact: Brian Tarian


National Labor Relations Board Issues First Decisions Regarding Employer Social Media Policies

The National Labor Relations Board (NLRB) recently issued its first decisions involving employer social media policies, rulings that will set precedent for future cases.

In the first case, the NLRB invalidated employer handbook provisions prohibiting employees from electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation” and from disclosing "confidential information" like employees' names, addresses, phone numbers and email addresses. Costco Wholesale Corp., 358 N.L.R.B. No. 106 (Sept. 7, 2012). In a separate decision, the NLRB invalidated a rule encouraging “courteous, polite and friendly” communications with customers and other employees. Knauz BMW, 358 N.L.R.B. No. 164 (Sept. 28, 2012). In both cases, the NLRB applied traditional National Labor Relations Act (NLRA) principles, holding that employees would “reasonably construe” these provisions as restricting their NLRA Section 7 rights to discuss wages, hours and other terms and conditions of employment.

However, in the Knauz case, which involved a car salesman and a number of his Facebook postings, the NLRB ruled that the firing of a salesman was not unlawful because federal law did not protect the employee’s Facebook updates. The NLRB ruled the dealership did not act unlawfully by firing the salesman after he posted a picture of a Land Rover accident, including the caption “Oops.”

A post by an employee on a social media website may be protected by the NLRA if it relates to working conditions, wages, and includes concerted activity. In the case of the car salesman, his Facebook postings ridiculing the dealership for serving hot dogs and bottled water may have been protected by the NLRA. However, the picture of the accident and accompanying caption was not protected speech and was ultimately responsible for his termination.

Prior to the decisions referenced above, social media policies had previously been guided by administrative decisions and memoranda from the board’s General Counsel (See http://mynlrb.nlrb.gov/link/document.aspx/09031d458056e743), but these did not set precedent.

These new decisions by the NLRB underscore the fact that all employers must remain vigilant about their obligations in the evolving world of social media. This remains a fluid area of the law and changes will continue to occur. However, this should prompt employers to thoroughly review their social media policies to ensure that they comport with the provisions of the NLRA.


Using “Subjective Criteria” During Employee Layoffs

The Sixth Circuit recently held that using subjective criteria — such as whether an employee is a “team player” — during layoffs does not by itself show discrimination.

In Beck v. Buckeye Pipeline Services Co., No. 11-3655 (6th Cir. Sept. 28, 2012), the employer assembled a group of company leaders as part of a “design team” to reform the company’s organizational structure. The team developed a new structure promoting decentralized, team-based leadership rather than top-down control. It then evaluated company employees based upon their ability to succeed in the new environment. The team considered criteria such as whether the employees were good listeners and communicators, willing to work in a team, and accepted accountability. It decided that the plaintiff, a fifty year-old female who had worked at the company for over sixteen years, was not a “team player” because she complained about the workplace, refused to fill-in for her coworkers, and was generally uncooperative. The employer fired the plaintiff, along with over a hundred other employees, as part of a company-wide reduction in force. The plaintiff was replaced with a younger, male employee with less experience.

The plaintiff sued her employer, alleging age and gender discrimination. She argued that the employer’s use of “subjective criteria” in selecting her for termination permitted the inference that she was singled out because of her age and gender. The court rejected this argument, noting that the use of subject criteria during layoffs deserves “careful scrutiny” but does not by itself show discrimination. Further, none of the criteria the employer used to evaluate employees, such as whether the employee was a “team-player,” discriminated on the basis of gender or age.

The court also rejected the plaintiff’s argument that her employer discriminated against her because the design team’s evaluation conflicted with the assessment of her immediate supervisor, who stated that the plaintiff was a good employee. The court noted that the supervisor said the same thing about all of his subordinates. Moreover, the company entrusted only the design team with deciding what qualities to require of employees under the new team-based system. The team was therefore entitled to disregard the supervisor’s opinion, which did not have an influence on the plaintiff’s evaluation.

This case offers several lessons for employers planning their own layoffs or reductions in force. Using subjective criteria in deciding which employees to terminate is lawful. Layoffs need not be based on objective criteria or “hard numbers,” such as the employees’ number of write-ups within the past year. However, employers using subjective criteria during layoffs must tread carefully. They should expect that a court will give the criteria “careful scrutiny” and be prepared to defend the criteria. Further, employers must consistently apply the criteria across their workforce. Finally, employers must ensure that the criteria do not affect protected groups at a disproportionately high rate.

Contact: Nathan Pangrace


In Workers’ Compensation, Symptoms Alone Do Not Equate Injury

The single most important question at the outset of a workers' compensation claim is, “Did the claimant suffer a compensable injury?” Under Ohio Revised Code Section 4123.01(C), an “injury” is defined as “any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee's employment.” Webster’s Dictionary defines “injury” as “hurt, damage, or loss sustained.” This sounds easy enough to prove, right? The reality is different.

Most Industrial Commission claim allowance hearings focus on witness testimony and the medical evidence. Initial treatment records are key as they normally delineate diagnosed conditions. Every so often, though, a treating doctor will give a generic diagnosis of “pain.” With a back injury, the initial diagnosis may even be “radiculopathy.” Technically, though, these are symptoms and not conditions, and thus litigation ensues.

Recently, the Tenth District Court of Appeals for the State of Ohio decided the compensability of a claim based on an application for “chest pain.” In the case of Edney v. Life Ambulance Serv., Inc., 2012-Ohio-4305 decided on September 20, the claimant alleged an “injury” of “chest pain” as the result of second hand smoke in the workplace. In its decision, the court discussed at length the definition of a “symptom” versus an “injury.” The court cited the medical records from claimant's hospital visit as indicating that he was diagnosed with chest pain of an unclear etiology or cause. In the end, the court ruled that the Industrial Commission properly denied this claim since pain is a symptom and claimant did not establish that he suffered an injury within the statutory definition.

Contact: Christopher R. Debski


Ohio Supreme Court Recognizes Limited Exception to Time Limit to Notify an Employer in a Workers’ Compensation Retaliation Discharge Claim

In a 6-1 decision announced on September 20, 2012, the Supreme Court of Ohio recognized a limited exception to the general rule that a terminated employee must notify his or her employer of the employee’s intent to file a retaliatory discharge lawsuit under Ohio Revised Code Section 4123.90 within 90 days after the date of the employee’s termination, and held that trial courts may delay the start of the 90-day notification period in a workers’ compensation retaliation case if they find that a fired employee did not become aware that he or she had been fired “within a reasonable time” after the employer’s action terminating his or her employment. (Lawrence v. City of Youngstown, 2012-Ohio-4247).

The Court’s opinion arose out of a case filed by Keith Lawrence, an employee of the City of Youngstown, who was suspended from his job duties without pay on January 7, 2007. Two days later, on January 9, the city placed a notice in Lawrence’s personnel file indicating that his employment had been terminated. However, the city did not send a copy of the letter to Lawrence by certified mail or present it to him in person. Lawrence subsequently denied that he had received a copy of the January 9 letter, and asserted that he did not learn that he had been discharged until Feb. 19, 2007, almost six weeks after the termination of his employment.

On April 17, 2007, Lawrence’s attorney sent a letter notifying the city that he intended to file suit under R.C. 4123.90, alleging that Lawrence’s firing was retaliation for his earlier filing of workers’ compensation claims. Lawrence filed suit against the city in the Mahoning County Court of Common Pleas on July 6, 2007.

The city moved for summary judgment on Lawrence’s claim, arguing that the trial court lacked jurisdiction to hear the claim because Lawrence had not complied with the 90-day notification requirement of R.C. 4123.90. The Court granted the summary judgment motion in favor of the city. Lawrence appealed. The Seventh District Court of Appeals affirmed the trial court ruling regarding when the 90-day notification began to run, but certified that its decision on that issue was in conflict with earlier decisions of the Sixth and Eleventh District Courts of Appeals. The Supreme Court accepted the case to resolve the conflict among appellate districts.

Writing for the majority, Justice Robert Cupp pointed to R.C. 4123.95, which mandates that Ohio’s workers’ compensation statutes “shall be liberally construed in favor of employees.” The Court concluded, “R.C. 4123.90…places an implicit affirmative responsibility on an employer to provide its employee notice of the employee’s discharge within a reasonable time after the discharge occurs in order to avoid impeding the discharged employee’s 90-day notification obligation under R.C. 4123.90.”

Further, the Court held that:

“Reading R.C. 4123.90 and 4123.95 in pari materia, we find it evident that R.C. 4123.90 anticipates the employee’s awareness of the employee’s discharge. Consequently, a limited exception to the general rule that the 90-day period for employer notice of an alleged R.C. 4123.90 violation runs from the employee’s actual discharge is in keeping with the statute’s purpose. The prerequisites for this exception are that an employee does not become aware of the fact of his discharge within a reasonable time after the discharge occurs and could not have learned of the discharge within a reasonable time in the exercise of due diligence. When those prerequisites are met, the 90-day time period for the employer to receive written notice of the employee’s claim that the discharge violated R.C. 4123.90 commences on the earlier of the date that the employee became aware of the discharge or the date the employee should have become aware of the discharge.”

Justice Judith Ann Lanzinger entered a separate opinion concurring in the majority’s judgment. She was joined by Justice Paul E. Pfeifer. Justice Terrence O’Donnell dissented.

While the burden that this holding places on an employer is relatively minor, and arises only when an employee has previously filed a workers’ compensation claim, it nevertheless means that employers must be proactive when notifying an employee of his or her termination in order to ensure that the 90-day notification provision begins on the date of termination.


Sixth Circuit Rules That Medical Marijuana Law Does Not Govern Private Employment Actions

On September 19, 2012, the United States Court of Appeals for the Sixth Circuit in Casias v. Wal-Mart Stores, Inc., 6th Cr. No. 11-1227, held that Michigan’s Medical Marihuana Act does not regulate private employment and, therefore, did not protect a Wal-Mart worker authorized to use marijuana for medical reasons from being fired after he failed a drug test.

The Casias case involved a claim for wrongful discharge and violation of the Michigan Medical Marihuana Act (MMMA). The plaintiff, Joseph Casias, had worked as an inventory-control manager at a Wal-Mart store in Battle Creek, Michigan since 2004. He received a medical marijuana registry card from the state in June, 2009 that allowed him to use the drug to manage pain he suffered as a result of sinus cancer and an inoperable brain tumor. In November of 2009, Casias suffered an injury at work and went to the hospital. While at the hospital, Casias received a standard drug test as required by Wal-Mart policy for injuries that occur on the job. Prior to the test, he showed his registry card to the testing staff.

As predicted, Casias’s test came back positive for marijuana. Casias immediately met with his shift manager to explain the positive test result. He showed his manager the registry card and explained that he never smoked marijuana at work or came to work under the drug’s influence. Regardless, Wal-Mart’s corporate office ordered the store manager to terminate Casias’s employment because of the failed drug test which violated Wal-Mart’s drug-use policy.

The MMMA was enacted in 2008 to provide protection for the medical use of marijuana. It prohibits, in part, “disciplinary action by a business or occupational or professional licensing board or bureau” against a person to whom the state has issued a registry card for the use or administration of medical marijuana. Although the MMMA does not refer to employment, Casias argued that the term “business,” as used in the Act, was independent and, therefore, caused Wal-Mart to fall within the Act. The Sixth Circuit rejected this argument, holding instead that the word “business” merely describes or qualifies the type of “licensing board or bureau.”

In so holding, the Sixth Circuit explicitly declined to adopt Casias’s interpretation of the Act, finding that such interpretation could possibly prevent any company in the state from imposing any discipline on a qualifying patient who uses marijuana under the Act. The Sixth Circuit noted that its holding was in line with that of courts in California, Montana, and Washington that have likewise determined that similar state medical marijuana laws do not govern private employment action.

Additionally, the Sixth Circuit held that the store manager who communicated the termination decision to Casias could not be held personally liable for wrongful discharge under Michigan law where there was no evidence that the manager was a causal factor in the termination decision and his role was simply to communicate the decision. The Court explained that, to hold otherwise, could make any individual who participates in the communication of a corporate decision a proper defendant in a wrongful discharge cause of action.

The take away of the Casias decision is that courts are not likely to find that state medical marijuana laws regulate the disciplinary decisions of private business unless the statutes expressly provide for such regulation.

Contact: Emily Wilcheck


Two-Week Notice – Summary of Benefits Coverage

Beginning September 23, 2012, group health plans must provide a Summary of Benefits Coverage (SBC). Generally, the SBC is a mini Summary Plan Description that must be furnished to every participant and beneficiary. Plan sponsors that do not comply can be assessed a fine of $1,000 per occurrence and an excise tax of $100 per day. With distribution dates looming, a quick review of who must receive the SBC, how and when may be in order.

A group health plan must provide an SBC for each benefit package offered by the group health plan to eligible participants and beneficiaries. For purposes of the disclosure rule, a “participant” includes current and former employees and members of an employee organization who are or who may become eligible to receive benefits from the group health plan. A “beneficiary” is a person designated by a participant or by the terms of the plan, who is or who may become entitled to a benefit under the plan.

If a participant and any beneficiaries are known to reside at the same address, the plan can provide a single SBC to that address. The SBC can also be furnished electronically, but it must comply with the Department of Labor “safe harbor” for electronic disclosure under ERISA (Employee Retirement Income Security Act of 1974), and the individual must have the option to request a hard copy.

The SBC must be provided at initial enrollment, special enrollment (pursuant to the Health Insurance Portability & Accountability Act), open enrollment, and upon request. The SBC can be provided as a stand-alone document, or may be included with other summary plan materials (such as the summary plan description) provided the SBC information is intact and is prominently displayed at the beginning of the materials.



Keeping the Drive Alive – The Far Reaching Implications of Fantasy Football In the Workplace

Hank Williams, Jr. sang it best…”are you ready for some football?!” With the NFL’s regular season kicking off on September 5th, that can mean only one thing – fantasy football is also back. Fantasy football is the hugely popular sports game in which participants own, manage, coach and compete with imaginary football teams that are comprised of real NFL players, with points being based on statistics generated by the actual players during their regular season games. While I personally am not an active participant in fantasy football, it is estimated that some 36.8 million people are. So what does this mean for an employer?

Chicago-based outplacement firm Challenger, Gray & Christmas, Inc. estimates that fantasy football costs American employers almost $6.5 billion (yes, billion with a ‘b’) in lost productivity. The firm arrived at this number by multiplying the number of employed fantasy football participants, roughly 22.3 million, by the U.S. Bureau of Labor Statistics’ estimate of average hourly wages, $19.33 an hour, which equals $430.9 million. The firm assumed that each participant spends an hour a week on their league for each of the 15 weeks of the season, which equals a staggering $6.46 billion in lost productivity. A loss in productivity is not the only risk that employers face during fantasy football season, however.

In this day and age, most employers have some form of an “internet usage policy” in their employee handbooks that outlines and defines the purposes for which an employee may use company internet resources. Some employers take the hard line that the internet is to be used for work related purposes only, while other employers take the position that employees are free to use the internet for non-work related purposes during breaks. Regardless of the position your company takes with internet usage matters, it is important to enforce that position consistently – especially if you plan to use a violation of that internet usage policy as grounds for terminating an employee. Before you decide to terminate an employee for violating your internet usage policy by setting his/her fantasy football lineup on the clock, ask yourself a few questions: (i) is this the employee’s first offense?; (ii) are you aware of other employees who are violating this policy and have you disciplined them as well?; (iii) does the “punishment fit the crime”?; and (iv) is this punishment similar to or the same as other punishments for similar offenses? Asking yourself these questions prior to terminating an employee for a fantasy football related offense may help keep the EEOC or a process server from knocking on your door with allegations of workplace discrimination.



EEOC Broadens the Scope of Title VII

An area of employment law that has been gaining increased attention from the Equal Employment Opportunity Commission (“EEOC”) in recent times are lesbian, gay, bisexual and transgender (“LGBT”) issues. In particular, the EEOC has recently adopted certain shifts in policies to find sexual orientation and gender identity coverage under Title VII. The rationale for finding such coverage is twofold: (i) the conduct at issue is discriminatory because of sex and (ii) the conduct is discriminatory because the employer uses gender stereotypes. Interestingly, the EEOC is not only reviewing LGBT Charges of Discrimination, but is actively soliciting the filing of such Charges.

Most recently, in Mia Macy v. Eric Holder (Appeal No. 0120120821, April 20, 2012), Macy, a male veteran police detective with an extensive law enforcement background, applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Macy was informed that he would be hired pending a background check. During the background check process, Macy informed ATF that he was in the process of transitioning from male to female. A few days later, Macy was notified that the position was no longer available due to budget reductions, when, in fact, another person had been hired for that position.

Macy filed a complaint with the EEOC against ATF alleging discrimination on the basis of “gender identity” and “sex stereotyping.” The EEOC found that employment discrimination against transgender individuals is a form of sex discrimination under Title VII and, in doing so, the EEOC clarified that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition . . . .”

Although not binding on courts, this decision and larger approach by the EEOC will be given great deference when courts assess the scope and breadth of discrimination claims based upon sex under Title VII. As such, employers should be mindful of this new development, stay abreast of local laws, maintain an open dialogue with employees on these issues, and provide information and training when appropriate to ensure that staff understand the implications of their actions with regard to members of the LGBT community.

Contact: Jaime A. Maurer


Corporation Required to Advance Legal Fees to Director to Defend Lawsuit Brought by the Corporation Against the Director

The Supreme Court of Ohio recently ruled that a corporation cannot avoid its duty under R.C. 1701.13(E)(5)(a) to advance the legal defense expenses of a corporate director who is sued by the corporation even when the alleged misconduct, if proven, would amount to a violation of the corporate director’s fiduciary duties to the corporation.

The case, captioned Miller et al. v. Miller, 2012-Ohio-2928, concerned Sam M. Miller, a director and co-owner of Trumbull Industries Inc., who was sued by two other directors of the corporation, Murray Miller and Sam H. Miller, for allegedly violating his fiduciary duties to shareholders and the corporation by participating in a new business venture to which Murray and Sam H. objected. The complaint sought injunctive relief and damages.

Sam M. subsequently sent a memorandum/undertaking to Murray and Sam H. notifying them that he had reimbursed himself from Trumbull Industries’ corporate funds for the costs he had incurred in preparing a defense against their lawsuit. Both sides then filed motions with the trial court seeking a determination as to whether Sam M. was entitled to the funds. The trial court ultimately ruled in favor of Sam M.

On appeal, the Eleventh District Court of Appeals reversed the trial court and held that Sam M. was not entitled to indemnification for his legal defense costs from Trumbull Industries. Sam M. sought and was granted Supreme Court review of the Eleventh District’s ruling.

In reversing the Eleventh District, the Supreme Court stated as follows: “Based upon the unambiguous language of R.C. 1701.13(E)(5)(a), we hold that Trumbull is required by law to advance expenses to Sam M. Trumbull’s articles of incorporation do not state by specific reference that R.C. 1701.13(E)(5)(a) does not apply to Trumbull. Thus we hold that appellees failed to show that Trumbull opted out of the mandatory advancement requirement. Finally, we hold that Trumbull’s statutory duty to advance Sam M.’s fees arose upon receipt of Sam M.’s undertaking.”

Corporate employers should be aware of this recent ruling and should review their articles of incorporation to ensure that company policies regarding payment of directors’ and officers’ legal fees are specifically addressed. If a corporation intends to opt out of the mandatory advancement requirement, the articles of incorporation must specifically reference that intention.

Contact: Alexander Kipp


Supreme Court to Consider Definition of Supervisor Under Title VII

On June 25, 2012, the United States Supreme Court agreed to consider Vance v. Ball State Univ., No. 11-556, a case in which the issue is whether the definition of “supervisor” under Title VII includes an employee who has no authority to hire and fire an employee but who oversees and directs the worker’s daily tasks.

In Vance, the plaintiff is an African-American catering assistant who claimed she was harassed by white co-workers and supervisors based on her race. The U.S. Court of Appeals, Seventh Circuit, determined that plaintiff failed to establish liability based on supervisor or co-worker harassment. Plaintiff contended that one of the alleged harassers actually was a supervisor and not a co-worker because this harasser directed her work. The Seventh Circuit determined, however, that this harasser did not have the power to hire, fire, demote, promote, transfer or discipline Plaintiff and was therefore not a supervisor. On this basis, the Seventh Circuit affirmed summary judgment to Ball State University on the plaintiff’s Title VII claim.

The outcome of Vance is significant because typically under Title VII, an employer is vicariously liable for harassment by a supervisor of the victim regardless of whether the employer knew or had reason to know the harassment was occurring. If the harasser is a co-worker, however, the employer is not liable unless it was negligent and knew or had reason to know the harassment was occurring.

Contact: Jon Secrest


Working Wage Loss – Job Search and Supplementation of Supporting Medical Evidence Requirements Upheld

In State of Ohio ex rel. Humphrey v. Indust. Comm. 2012-Ohio-2650, the Tenth Appellate District Court of Appeals ruled that a request for working wage loss in a worker’s compensation claim can be denied when the claimant does not engage in an adequate job search for the purpose of seeking work. Pay must be comparable to his or her former position and supplemental medical evidence must be filed every 180 days during the period being requested. In this case, the claimant obtained work, but did not present sufficient evidence of an ongoing job search as required by OAC 4125-1-01(C)(5). Simply obtaining a job within one’s medical restrictions under the allowed conditions is not enough. Also, if the job obtained is only part-time, the claimant has a duty to seek out full-time work in most instances. In this case, the claimant took a part-time job paying $8.50 per hour while his former position paid $19.58 per hour. The court acknowledges there are exceptions to this rule, but they are limited.

The court also held that when a claimant’s medical restrictions are permanent, OAC 4125-1-01 (C)(3) requires these restrictions to be supported by medical reports every 180 days. In this case, the claimant only submitted one supplemental medical report, which did not meet the requirement, and he was also barred the payment of working wage loss compensation. There has been a tendency by the Ohio Bureau of Workers’ Compensation (BWC) to not follow this portion of the rule when restrictions are permanent, and it should be challenged should this occur.

Should you have any questions, please contact any of our offices to discuss with one of our workers’ compensation attorneys.

Contact: Brian A. Tarian


Supreme Court Allows Affordable Care Act to Remain in Place

On June 28, 2012, the United States Supreme Court held that the Affordable Care Act (“ACA”) was not unconstitutional. The 5-4 decision found that the individual mandate (which requires all persons to have health care coverage or pay a penalty) was a tax and therefore was allowable under Congress’ constitutional power to levy taxes. The taxation argument was not the primary argument advanced by the government, as it previously had taken great pains to argue that the ACA was not a tax. The Supreme Court also upheld all of the other significant portions of this sweeping federal law.

Given this holding, the ACA will, within the next two years, extend health insurance coverage to millions of Americans who currently do not have coverage. Moreover, the current and future rules barring limitations as to preexisting conditions remain applicable. Beginning September 24, 2012, employees will have to be provided with a summary of benefits and coverage and, for some employers, the cost of health care coverage will be required to be reported on an employee’s W-2. Beginning in 2013, there will be additional taxes paid by highly compensated employees and those with significant investment earnings to support this law. Also, a number of other changes required by the ACA go into effect as of 2014, including imposing annual tax penalties on certain employers that do not offer health insurance to their full-time workers and on individuals who do not secure health insurance.

It is certainly likely that there will be many more challenges to the ACA, including interpretive rules that have been promulgated by various government agencies relative to doctor-owned hospitals, health insurance exchanges, Medicare panels and employers providing free birth control. It would appear that ongoing litigation and other challenges involving the ACA will not cease even with the Supreme Court’s decision.

While legislation to repeal the ACA will again be introduced in Congress, whether the ACA remains in effect will depend upon the next Congress and the presidential election in November. In the meantime, the ACA will continue to be a significant concern for employers, medical providers and insurance carriers.

Contact: Paul Jackson

Supreme Court of Ohio Rules that Evidence Must Show a Claimant to Have Actual Knowledge that Unpaid Activities Constituted Work In Order for a Finding of Fraud to Apply

On June 19, 2012, the Supreme Court of Ohio affirmed an appeals court decision that a claimant's unpaid activities precluded temporary total disability (TTD) since they constituted work by directly generating income that was consistent and ongoing. The Court affirmed the finding since the claimant did not realize his unpaid activities were work, and there was no fraud pursuant to R.C. 4123.56(A).

The case, State ex rel. McBee v. Indus. Comm., 2012-Ohio-2678, arose when claimant Garry K. McBee received TTD from October 30, 2004 through March 9, 2006. During that time, he also helped his wife with her business, but was not paid for his services. The Industrial Commission of Ohio (IC) determined those activities constituted “work” and concluded that TTD should not have been paid. Consistent with those findings, the TTD award was vacated and an overpayment was declared. In addition, the IC found McBee committed fraud by submitting disability paperwork to the IC and Bureau of Workers’ Compensation between October 30, 2004 and March 9, 2006, in which he certified that he was not working.

McBee then filed a complaint in mandamus in the Tenth District Court of Appeals. The appeals court upheld the finding that his activities for his wife’s company directly generated income, were consistent and ongoing, and that he worked while receiving TTD. However, the appeals court overturned the finding of fraud after concluding the evidence cited in the IC order did not prove that McBee knew his unpaid activities for his wife’s company constituted “work” for purposes of TTD eligibility. The IC appealed the fraud determination to the Supreme Court.

The Supreme Court held that to qualify as a knowing misrepresentation, pursuant to Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 55 (1987), “it must be shown that McBee was aware that his unpaid activities could be considered “work.” We must determine whether the evidence cited in the commission’s order demonstrates such an awareness.” The Court’s examination revealed there was no evidence that McBee knew his unpaid activities for his wife’s business constituted work that would preclude payment of TTD, and no evidence that he knowingly misled the IC or the Bureau of Workers’ Compensation. Absent such knowledge, the Court held that a fraud declaration cannot stand.

Roetzel will continue to provide further information and guidance to assist you as developments arise in this matter. Should you have any questions, please contact any of our offices to discuss with one of our workers’ compensation attorneys.


Federal Employees Must Challenge Adverse Employment Actions Pursuant to the Procedural Route Prescribed by the Civil Service Reform Act

On June 11, 2012, in a 6-3 opinion authored by Justice Thomas, the U.S. Supreme Court held that the Civil Service Reform Act of 1978 (CSRA) provides the exclusive avenue to judicial review even when a qualifying federal employee challenges an adverse employment action by arguing that a federal statute is unconstitutional.

In Elgin, et al. v. Department of Treasury, et al., all of the petitioners were male federal employees who were fired for failing to register for the Selective Service. The Military Selective Service Act requires, with few exceptions, that all male U.S. citizens between the ages of 18 and 25 register for the draft. A different federal law bars from civil service anyone who knowingly refused to do so.

Mr. Elgin and the other petitioners challenged their firings in a suit in Federal District Court. They argued that they should not have been fired because the Military Selective Service Act and the federal law barring them from civil service for knowingly refusing to register are unconstitutional. The Federal District Court denied petitioners' constitutional claims on the merits. The First Circuit vacated and remanded with instructions to dismiss for lack of jurisdiction. The First Circuit held that challenges to a removal are not exempt from the CSRA review scheme simply because an employee challenges the constitutionality of the statute authorizing the removal.

The U.S. Supreme Court agreed to hear the case to decide whether the CSRA precludes District Court jurisdiction over the petitioners’ claims even though they are constitutional claims for equitable relief. In other words, the issue was not whether petitioners’ constitutional challenge was correct, but rather how petitioners get to raise their challenge. To that end, the Supreme Court concluded that it is “fairly discernable” from the CSRA’s text, structure and purpose that Congress intended that petitioners must first bring their claims to the Merit Systems Protection Board (MSPB), rather than District Court, even if the MSPB cannot declare a law unconstitutional. The Supreme Court reasoned that even if the MSPB cannot decide a constitutional question, the Federal Circuit that reviews MSPB decisions could. Therefore, there is no reason to believe that Congress meant to allow litigants like petitioners to bypass the procedure it created for most other employment-related claims.

This case is obviously of great interest to federal employers, employees, and their respective representatives. However, it will also be interesting to see what impact, if any, this decision has on future employment-related matters that come before the U.S. Supreme Court.

Contact: Alexander Kipp


Proving Disability Discrimination Just Got Easier for Employees in the Sixth Circuit

The Sixth Circuit Court of Appeals recently made it easier for Ohio employees to prove a claim of discrimination under the Americans with Disabilities Act (ADA). The court reversed 17-year-old precedent and found the “but for” causation standard appropriate for ADA claims.

In Lewis v. Humboldt Acquisition Corp., No. 09-6381 (6th Cir. May 25, 2012), the employer terminated the plaintiff from her position as a registered nurse at one of the employer’s retirement homes. The plaintiff sued the employer under the ADA, claiming that the employer fired her because she had a medical condition that made it difficult for her to walk and that occasionally required her to use a wheelchair. The employer responded that it terminated the plaintiff based on an outburst at work in which she allegedly yelled, used profanity and criticized her supervisors.

When it came time to present her ADA claim to a jury, the plaintiff asked the court to instruct the jury that she could prevail if her disability was a “motivating factor” in the employer’s decision to terminate her. The employer asked the court to instruct the jury that the plaintiff could prevail only if the employer’s decision was “solely” because of the plaintiff’s disability. In requesting this instruction, the employer relied on 17 years of Sixth Circuit precedent requiring courts to instruct juries that ADA claimants may win only if they show that their disability was the “sole” reason for any adverse employment action against them.

The court rejected both approaches. It held that the plaintiff was required to show her disability was a “but for” cause of the employer’s decision to terminate her. In other words, the plaintiff was required to prove that “but for” her disability, her employer would not have terminated her. The court noted that its previous interpretation of the ADA was out of sync with the other circuits, none of which use the “sole” reason test.

With this decision, the Sixth Circuit reversed 17 years of precedent and eased the burden for employees bringing discrimination claims under the ADA. The court’s decision puts it in line with other federal circuits, but it is undoubtedly a loss for employers in the Sixth Circuit who will likely see an uptick in ADA claims.

Contact: Nathan Pangrace


Extra Precautions for Ohio Industrial Commission Hearings When All Three of the Members are Not Present

A recent Tenth District Court of Appeals for the State of Ohio case addressed a rarely seen issue involving third-level Ohio Industrial Commission hearings, specifically those set in front of the three commissioners. The case of State ex rel. Evert v. Indus. Comm., 2012-Ohio-2404 was decided on May 31, 2012, and involved a death claim and the widow’s request on behalf of her late husband for the functional loss of use of all four of his extremities. In its own right, the issue appears to have been quite compelling, but the focus for the Court of Appeals was in fact a procedural issue. At stake procedurally was the validity of a Commission decision when all of the members were not present and a reviewable record was not kept.

As part of the appeal, the magistrate issued a decision highlighting the relevant facts. Of note, the Commission held a hearing with only two of its three members in attendance. In the subsequent commission order, there was a split decision between the two attending members, with the non-attending member casting the deciding vote. The non-attending commissioner claimed she reviewed a summary of “the testimony and arguments” presented by the parties. No actual transcript or audio recording of the hearing existed.

In its decision, the court focused on the fact that it could not know from the record before it what happened at the hearing attended only by two commissioners. In highlighting the importance of due process and impartiality by the commissioners, the court agreed with the magistrate’s recommendation that the Commission be ordered to conduct a new hearing with all members in attendance or at which a reviewable record is kept.