Ohio Statute Prohibits Retaliation Against Employees for Taking Reasonable Amount of Time to Vote on Election Day (or Refusing to Vote).

Ohio Revised Code § 3599.06 provides that “[n]o employer, his officer or agent, shall discharge or threaten to discharge an elector for taking a reasonable amount of time to vote on election day; or require or order an elector to accompany him to a voting place upon such day; or refuse to permit such elector to serve as an election official on any registration or election day; or indirectly use any force or restraint or threaten to inflict any injury, harm, or loss; or in any other manner practice intimidation in order to induce or compel such person to vote or refrain from voting for or against any person or question or issue submitted to the voters.” Violations of the statute can result in fines of “not less than fifty nor more than five hundred dollars.”

This statute is more than fifty years old and pre-dates the new early voting procedures and long lines of four hours on election day. There has been some question of whether an employer can require an employee to vote before or after work (since the polling places open at 6:30 a.m. and close at 7:30 p.m.). However, there have been no reported cases interpreting this statute, which would, in any event, prohibit an employer from retaliating against an employee who waited in line for hours in order to vote before work.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Long Island Police Department to Pay $450K to settle Age Discrimination Lawsuit Brought by EEOC.

Last week, the EEOC announced that the Nassau County Police Department would be paying $450,000 (to be divided among four officers) and providing anti-discrimination training for more than 400 supervisors and managers to settle a lawsuit alleging that the officers had been discriminatorily transferred in July 2006 to less desirable assignments on account of their age and replaced with younger, less qualified officers. Two of the officers alleged that the transfers were so humiliating that they constituted a constructive discharge.

Insomniacs can read the full EEOC press release at http://www.eeoc.gov/press/10-23-08.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Hotel Chain to Pay $370K to Settle Same-Sex Harassment Lawsuit Filed by EEOC.

Last week, the EEOC announced that a hotel employer had agreed in a consent decree to settle a same sex-harassment lawsuit filed in federal court in Seattle, Washington, by, among other things, paying $370,000 (to be divided among the four-teenaged victims), providing anti-discrimination training for managers, supervisors and employees at the hotel resort, establishing policies and procedures to address sexual harassment issue, reporting any future discrimination complaints to the EEOC and allowing the EEOC to monitor the work site for the next three years. In its lawsuit, the EEOC alleged that the employer had failed to stop the male hotel manager from sexually harassing teenaged male employees when he “repeatedly subjected young male employees between the ages of 17 and 25 to unwelcome touching of a sexual nature, comments about their physical appearance, and sexually charged situations.”

The defendant was “WorldMark by Wyndham (formerly Trendwest) [which] employs several thousand individuals and is a wholly owned subsidiary of Parsippany, N.J.-based Wyndham Worldwide Corporation (NYSE:WYN), the world’s largest hotel franchisor, vacation ownership company and vacation exchange network, which includes chains like Wyndham Hotels and Resorts, Ramada Inn, Howard Johnson, and others.”

Insomniacs can read the full EEOC press-release at http://www.eeoc.gov/press/10-23-08a.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Disparate Impact Sex Discrimination Claims of Employees Laid Off in RIF by Columbus Moving Company.

Today, the Sixth Circuit affirmed the dismissal of sex discrimination claims brought by four terminated female employees who alleged that their employer’s reduction in force disproportionately affected women by focusing the RIF on predominately female departments. Shollenbarger v. Planes Moving & Storage, No. 06-4454 (10/21/08). In particular, the plaintiffs alleged that the RIF resulted in the termination of twelve women and only one man even though 53% of the employer’s total workforce consisted of women. At one point in the Court’s opinion, it noted that “the odds of selecting 12 women from the [employer’s] entire non-management labor pool is 0.1%.” Nonetheless, because the employer articulated a legitimate business justification for focusing its RIF on the predominately female departments, “statistically, 12 is the most likely number of women from this pool, as anything less would diverge from the basic statistical probability. Therefore, this statistical result does not demonstrate disparity, much less a significant disparity that can be connected causally to the challenged employment action.”

According to the Court, “[p]rior to the RIF, [the employer’s] non-management workforce comprised 120 women and 86 men, split into several departments. Management
comprised 18 women and 35 men. So, there were 259 total employees (53% female).” The employer then focused its RIF on certain departments: “Customer Service; Credit & Collections; Operations; and Billing & Rating. Of the 101 total employees in these departments, 90 were women and 11 were men, meaning that the departments were 89% female. Meanwhile, [the employer] excluded from the RIF its other departments: Warehouse; Movers & Packers; and Drivers. These departments consisted of 30 women and 75 men (105 total), meaning that they were only 29% female. [The employer] delegated to the individual department managers the decision of which employee(s) from their departments to lay off, using criteria of conduct, performance, reliability, and seniority. Ultimately, [the employer] laid off 12 women and one man.”

“The plaintiffs first challenged [the employer’s] ‘particular employment practice’ of selecting only certain (predominantly female) departments for the RIF. . . . The plaintiffs contend that the statistics . . . show a disparity and we agree. At this step in the analysis — the prima facie step —[the employer’s] reasons for selecting certain departments is immaterial; the only questions at this point are whether there was an identifiable disparity and, if so, whether the challenged employment practice (i.e., the selection of certain departments) could have caused the disparity. Based on a rudimentary statistical analysis, we answer both in the affirmative. If [the employer] had randomly selected one employee for layoff from its entire non-management labor pool (i.e., all departments), it would have had a 58% chance (120/206) of selecting a woman. By targeting only certain departments, the likelihood of selecting a woman increased to 89% (90/101). More telling is that the odds of selecting 12 women from the affected departments is 23%, whereas the odds of selecting 12 women from the entire non-management labor pool is 0.1%. We find this to be a sufficient disparity to demonstrate a disparate impact from the decision.”

Because the plaintiffs met their prima facie burden, “ the burden shifts and [the court] must consider whether [the employer] set forth a legitimate business justification. [The employer] explained that its declining business necessitated the RIF and that some departments were affected more that others; specifically, those employees who dealt most directly with customers were the most affected. In addition, the predominantly male, unaffected departments were staffed largely with seasonal workers (typically high school and college students) who had already left at the end of the peak summer season. And, there was no decline in the business being done by the warehouse. We conclude that the challenged employment practice of subjecting only certain departments to the RIF had a legitimate business justification.”

“Because [the employer] clearly met its burden of showing a legitimate business justification, the burden shifts back to the plaintiffs to show that “other tests or selection devices, without a similarly undesirable . . . effect, would also serve the employer’s legitimate [business] interest.” The plaintiffs argued that “there wasn’t any exploration of alternatives to these layoffs at all.” But, this is a misunderstanding of the standard and, hence, completely irrelevant. plaintiffs were obligated to prove equally effective alternatives and — although they offer alternatives to a RIF in general — they offer no alternative to subjecting only the particular, selected departments to the RIF. The purpose of this step is not to second guess the employer’s business decisions, it is to show — by pointing to obviously ignored alternatives — that the “particular employment practice” was actually pretext for discrimination.” Once the decision to focus the RIF on certain departments, the statistical anomalies disappear: “The RIF was 92% female (12/13), which is perfectly consistent with a random selection from an 89% pool. Statistically, 12 is the most likely number of women from this pool, as anything less would diverge from the basic statistical probability. Therefore, this statistical result does not demonstrate disparity, much less a significant disparity that can be connected causally to the challenged employment action.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0631n-06.pdf.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Dismisses ADEA Claims by Employees Who Claimed They Were Terminated For Budget Reasons Rather than For Violating Confidentiality Policy.

Today, the Sixth Circuit affirmed the dismissal of claims by two employees who alleged that they had been terminated on account of their age because the new CEO had sought to increase turnover among (more expensive) employees with more seniority so that he could hire less expensive, newer employees. Allen v. Highlands Hospital Corp., No. 07-6414 (10/21/08). The plaintiffs admitted to the conduct which the hospital explained motivated it to terminate their employment, but the plaintiffs denied their conduct was the actual reason for their termination. Indeed, the court was sympathetic that the plaintiffs had not actually violated patient confidentiality as alleged, but still gave more weight to the hospital’s argument that it held an honest belief that the plaintiffs had violated its HIPAA policy based on a thorough investigation by the human resources department. In any event, the court found that there was no evidence that the hospital’s business strategy to reduce its budget for employee compensation had a disparate impact on older employees and did not constitute direct evidence of age discrimination.

The plaintiffs were terminated for violating the hospital’s HIPAA policy when one of the plaintiffs obtained the x-rays of her own granddaughter (at the parent’s request) from the other plaintiff without having a signed authorization from the parent of the granddaughter. The grandmother plaintiff had been told by another employee that the parent’s signature was mandatory, but there was no written policy governing the situation. Moreover, the plaintiff grandparent then forged the parent’s signature on the authorization form, back-dated the form and placed it in the medical record (which may have shown knowledge of her own guilt in violating an unwritten policy). Both employees were terminated for violation of the HIPAA policy, which the hospital considered to be a major offense.

The Court acknowledged that the hospital’s actions in this case were unduly harsh: “the facts of this case are not a “textbook example” of a privacy violation for which a hospital would usually take such serious action against its long-time employees. The record shows that [plaintiff] was not only the biological grandmother of the patient, but also was involved in her care and guardianship (although [plaintiff] was admittedly not [the granddaughter’s] legal guardian). Moreover, [the hospital] does not dispute that [the mother], as [the granddaughter’s] mother and legal guardian, in fact gave [plaintiff] verbal authorization to retrieve the x-rays. The plaintiffs have thus undoubtedly pointed to a weakness in the Hospital’s policy, if for no other reason than that this case highlights the potential ambiguity caused by the lack of detail in the employee manual’s prohibition against an unauthorized release. But the fact that the Hospital would benefit from developing a more detailed policy on this issue does not mean that [the plaintiffs] have succeeded in creating a genuine issue of material fact about whether HHC’s stated reason for terminating them was a pretext designed to hide age-based discrimination. We thus agree with the Hospital that, in determining if the plaintiffs have raised a genuine issue of material fact as to pretext, we should consider not whether [the plaintiffs] actually breached patient confidentiality, but rather whether the Hospital had an honestly held belief that they had committed a Group I offense.”

To support their age discrimination claims, the plaintiffs produced evidence that the hospital’s new CEO sought to increase employee turnover among more senior (and presumably more expensive) employees. According to the court, the hospital’s budget manager testified “one of [the CEO’s] strategies was to terminate employees based on seniority to facilitate the hiring of new, less costly employees. In fact, [the CEO] increased the annual turnover rate from 2% to 28%. [The budget manager] did not know whether the cost-cutting measures had a disproportionate effect on older employees, but she said that [the CEO’s] focus was at all times on improving HHC’s financial situation.” In any event, the Court of Appeals found that this testimony did not constitute direct evidence of age discrimination.

“Indeed, the Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), has specifically held that the strategies discussed by [the budget manager] are permissible methods for employers to cut costs: When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age . . . . On average, an older employee has had more years in the work force than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee’s age is analytically distinct from his years of service. An employee who is younger than 40, and therefore outside the class of older workers as defined by the ADEA, see 29 U.S.C. § 631(a), may have worked for a particular employer his entire career, while an older worker may have been newly hired. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily ‘age based.’”

Moreover, the court found insufficient evidence that the CEO’s budget practice had a disparate impact on older workers either. The hospital’s expert produced evidence that the hospital’s increased turnover did not result in a disproportionate reduction in the number of employees over the age of 40. “ Nor is the plaintiffs’ disparate-impact claim salvaged by the allegation that the number of terminations of those over 40 years of age increased from 14.3% to 62.5% of all terminations between 2002 and 2003. As the district court noted, this data is not statistically significant because the pools from which those percentages were drawn were very small—i.e., there were only 21 terminations in 2002 and 16 terminations in 2003.”

Finally, “[t]he plaintiffs, however, have failed to satisfy their burden of isolating and identifying a specific employment practice that disproportionately impacts employees who are at least 40 years old. As we have already explained, the plaintiffs have at best alleged that HHC desired to reduce costs associated with its highly paid workforce, including those costs associated with employees with greater seniority. But the plaintiffs have not established that this corporate desire evolved into an identifiable practice that disproportionately harms workers who are at least 40 years old. Because Allen and Slone have simply “point[ed] to a generalized policy,” as opposed to specific practice, they have therefore failed to raise a genuine question of material fact with respect to their disparate impact claim.”

The plaintiffs also produced evidence that a the supervisor of a hospital contractor told one of its employees that the employee should start looking for another job because it looked as though all of the older employees would be let go. The court also rejected this as direct evidence that the plaintiffs were terminated on account of their age because the solitary statement was not made by their supervisors and was, instead, made in connection with another employer.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0381p-06.pdf.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court Awards Employee Damages When Employer Violated Written Contract By Decreasing His Pay Rate.

Last month, the Trumbull County Court of Appeals affirmed an award of $42,116.38 in damages plus interest to a former employee who sued for breach of a written contract when, upon the advice of its accountant and based on poor economic conditions, his former employer decreased the plaintiff’s salary below $75,000/year in breach of his employment agreement. Sloan v. Shafer Commercial & Indus. Servs. Inc., 2008-Ohio-4765. The employer had also decreased the salaries of the other officers and laid off employees at the same time. Although the plaintiff objected to the wage cut, he continued to work for the employer for another 33 months. The court rejected the employer’s various arguments that, among other things, the plaintiff waived his contractual rights by continuing to work at the reduced pay, that he was guilty of laches for waiting three years to file his claim, and that he should be estopped from challenging the wage cut three years later. In particular, the court found the employee did not waive his contractual rights by continuing to work after the pay cut. While the employer might have had a good argument that the contract had been mutually modified by the parties, the court refused to consider this argument on appeal because the employer failed to raise that argument before the trial court.


Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/11/2008/2008-ohio-4765.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Reverses $1M Jury Verdict in ADA Case Because of Fraud on the Court by Plaintiff’s Counsel.

Yesterday, the Sixth Circuit reversed a million dollar jury verdict in favor of an ADA plaintiff who claimed that he had been fired on account of his Tourette’s syndrome. Okros v. Angelo Infrate Construction Co., No. 07-1455 (10/20/08). The key evidence in the case involved a telephone call which the plaintiff and his witnesses claimed involved the employer’s vice-president making derogatory comments about the plaintiff’s stuttering and firing him for that reason. The vice-president denied that any such telephone call happened, that he knew about the plaintiff’s alleged disability or that he had been fired in such a fashion. After the trial and jury verdict, the employer finally subpoenaed the plaintiff’s telephone records which proved that the plaintiff had never called the vice-president as he claimed, but rather, telephoned a union officer who presumably masqueraded as the vice-president for the benefit of the witnesses. Because the employer had failed to seek copies of the telephone records from AT&T during pre-trial discovery, the trial court and Court of Appeals refused to reverse the verdict on the basis of the newly discovered evidence (in that the evidence could have been discovered before the trial). However, because the plaintiff’s attorney had, among other things, claimed – presumably falsely – during the trial and discovery process that he had attempted to subpoena the same telephone records and had been told that they no longer existed, because the court and the employer’s counsel were entitled to rely on the honesty of plaintiff’s counsel – as an officer of the court – and because the false information prejudiced the employer’s defense, the Court of Appeals reversed the verdict on account of the fraud on the court perpetrated by plaintiff’s counsel.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0628n-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court: Use of Illegal Drugs Was Not Sufficiently Gross Misconduct to Disqualify Employee from Payment for Unused Vacation Pay.

Last month, the Ohio Court of Appeals for Summit County affirmed judgment in favor of a manager who was terminated for failing a drug test (for cocaine and marijuana) on his claim for payment of unused vacation pay under the employer’s policy. Lang v. Quality Mold, Inc., 2008-Ohio 4560. Under the employer’s policy, an employee could be paid for unused vacation pay when the employee was guilty of one instance of serious misconduct or incompetence, but was not entitled to be paid for unused vacation pay when terminated for gross misconduct. Neither the employee handbook nor any other written policies specified whether a positive drug test constituted gross misconduct or was merely serious misconduct. Accordingly, the trial court decided to construe the handbook against the employer (who drafted it) and considered court decisions construing the statutory standard under COBRA (which denies continued medical coverage when an employee is terminated for gross misconduct).

The Court ultimately determined that testing positive for illegal drugs was merely serious misconduct and not gross misconduct. In reaching this conclusion, the court disregarded the undisputed testimony of the Human Resources Director that the employer’s past practice was to deny payment for vacation pay to employees who were terminated for illegal drug use. It is also worth noting that COBRA does not define “gross misconduct,” but that some courts required the behavior to be extreme and outrageous, while other courts have found that it merely needed to be intentional. The court was influenced by the fact that there was no evidence that the terminated manager had been dealing drugs or that his job performance or attendance had been affected by use of illegal drugs.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-4560.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Happy Anniversary To Me

It’s been one year since I began posting FYIs on this blogsite. I’ve appreciated feedback from my faithful readers and am somewhat amused by the number of my competitors who keep up with my blog. Feel free to drop me a line if there are topics which you feel that I am neglecting. Of course, not every post will be relevant to every reader, but I try to find those amusing or scary local cases which make for good conversation at work.

Ohio’s Minimum Wage to Increase to $7.30 on January 1, 2009.

Because Ohio’s minimum wage is part of the Ohio Constitution (and cannot be easily amended) and contains a provision for automatic increases in the minimum wage tied to the annual Consumer Price Index as of September 30, the Ohio Department of Commerce has announced that the minimum wage will increase to $7.30 on January 1 based on the CPI as of Tuesday, September 30, 2008. The minimum wage for tipped employees will increase to $3.65/hour.

Insomniacs can read the full announcement (along with how it will affect youth wages) at http://www.com.ohio.gov/laws/docs/laws_2009MinimumWage.pdf.