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