Ohio Supreme Court Permits Employers to Sue Employees for Maliciously Prosecuting Discrimination Claims.

Today, a divided Supreme Court held that that it does not constitute retaliation per se for an employer to file a lawsuit for malicious prosecution and abuse of process (seeking reimbursement for attorney fees as well as damages) and to seek punitive damages against an employee who had previously engaged in statutorily protected conduct by suing the employer for illegal discrimination. Greer-Burger v. Temesi, Slip Opinion No. 2007-Ohio-6442. However, the employer’s lawsuit must have an objective and good faith basis and cannot be filed simply to harass the employee. Similar to earlier federal cases involving an employer’s right to sue a union (See FYI entry for October 17, 2007), the Court was faced with balancing the employer’s right to seek redress in court under the First Amendment with the employee’s statutory right to seek redress for employment discrimination. The United States Supreme Court has generally held that an employer’s constitutional right to petition the courts cannot be limited by the statutory right of an employer or union. See BE & K Constr. Co. v. Natl. Labor Relations Bd., 536 U.S. 516, 538 (2002). The Ohio Supreme Court ruled that an employer’s lawsuit and claim for punitive damages are objectively based if the employer can show that it would survive a summary judgment motion on its claims.

In this case, the employee had filed suit and lost at trial. After the employer filed suit seeking reimbursement for his attorney fees, etc., and the employee filed for bankruptcy, the employee filed a Charge of Discrimination with the Ohio Civil Rights Commission. The OCRC found probable cause of retaliation and ordered the employer to dismiss the lawsuit and to reimburse the employee for the legal fees which she incurred in defending against the lawsuit (which had already been discharged in bankruptcy). The OCRC’s order was affirmed on appeal, where the appellate court found that employees have an absolute privilege to file suit against their employers for discrimination.

The Ohio Supreme Court reversed. However, its ruling reflects that the OCRC will still have the authority to review an employer’s lawsuit and determine for itself whether the case is likely to survive summary judgment.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-Ohio-6442.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

CVS agrees to pay $226K in penalties and $38K in back wages for FLSA Violations.

The Department of Labor announced today that CVS Pharmacies agreed to pay “civil money penalties totaling $226,598 and to pay 51 employees back wages totaling $38,151 following an investigation by the department of 63 retail locations in the Northeast that revealed violations of the wage and youth employment provisions of the federal Fair Labor Standards Act (FLSA). The youth violations involved exposing the teen employees to hazardous conditions and working too many hours. The back wages were due as a result of store managers improperly editing the time cards of various employees.

Insomniacs may read the full press release at http://www.dol.gov/opa/media/press/esa/ESA20071543.htm.

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

EEOC's $510K Consent Decree with Target Over Alleged Race Discrimination and Record Retention

The EEOC announced the entry of a consent decree in Wisconsin federal court where Target agreed to pay $510K to four African-American applicants for entry-level managerial positions, to revise its record-keeping policies, to provide training to supervisors on employment discrimination and record-keeping; to report to the EEOC on hiring decisions; and to post a notice about the consent decree to employees in order to end six-year litigation which last year resulted in the denial of summary judgment to Target by the Seventh Circuit Court of Appeals (at EEOC v. Target Corporation, 7th Cir. No. 04-3559). The EEOC had also alleged that Target had destroyed employment applications in bad faith, and its changed policies with respect to retaining records were insufficient.

Insomniacs can read the full press release at http://www.eeoc.gov/press/12-10-07a.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Ohio's Minimum Wage to Increase to $7/hour on January 1

The Ohio Department of Commerce Division of Labor & Worker Safety has announced that effective January 1, 2008 Ohio’s minimum wage will increase to $7.00/hour for covered employees and $3.50/hour for tipped employees (plus tips). Currently, the federal minimum wage is $5.85/hour. On July 24, 2008 the federal minimum wage will increase to $6.55/hour.

Ohio employers are required to post a notice of the new minimum wage, which can be printed for free from: http://www.com.state.oh.us/laws/pub/MinimumWagePoster2008.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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

OCRC's Proposed Pregnancy Leave Rules Rejected by Legislators

Columbus media are reporting that the General Assembly's Joint Commission on Agency Rule Review struck down in a 9-1 vote yesterday the OCRC's proposed new rules mandating twelve weeks of maternity leave for female employees in the state (as summarized here on October 29, 2007). One of the JCARR is quoted as basing his vote on the lack of data about the cost of the rule change on government employers. The OCRC has regularly argued that the proposed rule only clarified existing regulations which already require that employers (of four or more employees) provide a reasonable period of maternity leave. However, the proposed rule actually went further than that in also requiring, for instance, mandatory light duty assignments for pregnant employees even if light duty was not provided for similarly situated male employees disabled by a non-work-related accident (i.e., non-workers compensation). Rather, if the employer had a workers compensation light duty program, it was required by the proposed OCRC rules to similarly provide light duty for pregnant employees. Although the OCRC is likely to try again in a few months, for now Ohio employers need not revise their maternity leave policies to reflect the OCRC's proposed rule.

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.