New Ohio Law Makes “Military Status” a Protected Category Under the Ohio Civil Rights Act.

Late last year, Governor Strickland signed the “Ohio’s Veteran Package” (otherwise lovingly known as Substitute House Bill 372), which -- beginning next month on March 24, 2008 -- amends Ohio’s Civil Rights Act at Ohio Revised Code § 4112.02 et seq. to include “military status” as a protected category along with race, sex, age, disability, etc.

Interestingly, “military status” seems to indicate the person’s current status (rather than veteran status) and is defined in the statute as “a person's status in ‘service in the uniformed services’ as defined in section 5903.01 of the Revised Code. Such status is defined at Ohio Revised Code § 5903 as “the performance of duty, on a voluntary or involuntary basis, in a uniformed service, . . . and includes active duty, active duty for training, initial active duty for training, inactive duty for training, full-time national guard duty, and performance of duty or training by a member of the Ohio organized militia pursuant to Chapter 5923 of the Revised Code” and also includes “the period of time for which a person is absent from a position of public or private employment for the purpose of an examination to determine the fitness of the person to perform any duty described in this division.” “The ‘uniformed services’ means the armed forces, the Ohio organized militia when engaged in active duty for training, inactive duty training, or full-time national guard duty, the commissioned corps of the public health service, and any other category of persons designated by the president of the United States in time of war or emergency.”

Ohio’s Veteran Package seems to have created some unintended consequences. Among them, employers may no longer be able to prefer members of the military for employment since Ohio Revised Code § 4112.02(E) prohibits an employer from asking any job applicant -- on an application or in an interview – about his or her military status “[e]xcept where based on a bona fide occupational qualification certified in advance by the [Ohio Civil Rights] [C]omission.” The same is true of making any records of the military status of applicants. Employers are similarly prohibited from expressing a preference for members of the military in help-wanted ads.

New Ohio Revised Code § 4112.023 specifically incorporates the decision of Fisher v. Peters, 249 F.3d 433 (6th Cir. 2001) by the Sixth Circuit Court of Appeals “which held that if a person's civilian job is inherently military, the person must pursue military, rather than civilian, channels when pursuing employment discrimination claims, shall be applied when construing the prohibitions contained in this chapter against discrimination on the basis of a person's military status.”

As of today’s posting, the Ohio Civil Rights Commission had not made a new poster available for employers which includes the new statutory language. (Free posters are generally available online from the Commission at http://crc.ohio.gov/pdf/OCRCFEPPoster04-07.pdf). However, the Commission’s delay should not stop employers from amending their own internal employment policies to reflect the new change in the law.

Insomniacs may read the new legislation in full at : http://www.legislature.state.oh.us/bills.cfm?ID=127_HB_372

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.

Servicemember Leave Amendments to the FMLA: Overdue or Raising More Questions Than Answered?

On January 28, 2008, President Bush signed the National Defense Authorization Act of 2008 (the “NDAA”). Section 585 of the NDAA amended the Family and Medical Leave Act (FMLA) in two important respects:

1) Exingency Leave. Once the Department of Labor has finalized definitions and implementing regulations, the FMLA’s 12-week leave entitlement will be extended to cover “any qualifying exigency” arising from that fact that an employee’s spouse, son, daughter or parent is on active military duty or has been notified of an impending call or order to active military duty in support of a contingency operation. Because the Department of Labor is taking comments until April 11, 2008, it is unlikely this leave will become effective before summer.

2) Servicemember Leave. Eligible employees who are the spouse, son, daughter, parent or “next of kin” (i.e., nearest blood relative) of a “covered servicemember” shall be entitled to a total of 26 workweeks of leave during a single 12-month period to care for the servicemember. This provision was effective as of January 28, 2008, although many important questions remain unanswered about its implementation.

Most of the terms for Servicemember Leave are contained in the NDAA and merely incorporate many Department of Defense terms already familiar to employers applying USERRA, Servicemembers Civil Relief Act and similar legislation. “Service members” include any “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” The term `serious injury or illness' “ means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating.” Importantly, this serious injury or illness may not necessarily prevent the servicemember from performing the essential duties of his or her civilian job. In addition, the DOL has indicated that the medical treatment may be rendered by either the Defense Department, Veterans Affairs or civilian medical providers.

Although employers are already required to provide the 26 weeks of Servicemember Leave, the Department of Labor issued proposed regulations on February 11, 2008 which raised many important questions that will undoubtedly face many employers and employees while administering Servicemember Leave, including:

* What kind of temporal proximity is required between the injury/illness and the treatment, recuperation or therapy for which care is required? What if the illness/injury does not manifest itself until long after the cessation of military duties?

* Who is covered by “next of kin?” The Defense Department regulations consider a number of relatives, including grandparents who are not now covered by the FMLA. Should it be limited to only one relative who is the nearest blood relative as provided in the NDAA? How shall it be determined who is next of kin (particularly when there are a number of equally related kin)?

* What kind of certification should be required to show that the servicemember is “medically unfit” to perform his or her military duties?

* The FMLA regulations currently only covers children when they are under the age of 18 unless they are incapable of self-care because of a disability. The military does not permit individuals to serve unless they are over the age of 17. Thus, very few “children” are currently covered. Should the FMLA regulations be amended to permit parents to care for their servicemember adult children? The proposed regulations also imply that adult children would not now be permitted to care for servicemember parents unless the regulations were amended. One must assume that children could still qualify for 12 weeks of FMLA leave when their parents have a “serious medical condition.”

* Unlike the FMLA's typical medical/family leave, the servicemember leave is limited to a “single 12-month period.” Does this mean that it is a one-time entitlement and cannot be repeated in another year (unlike the FMLA where the entitlement is reborn every year)? Is this twelve months a calendar or leave year? Is it per injury? Per employee? Per servicemember? Per relative?

As for what may eventually be covered by Exigency Leave, the Department of Labor has indicated that it may be limited to non-medical exigencies related to deployments and military service, such as arranging for childcare, making financial and legal arrangements to address the servicemenber’s absence, attending counseling relating to the service member’s active duty, attending official ceremonies or programs where the participation of family is requested by the military, attending farewell or arrival arrangements and attending to affairs caused by the missing status or death of a service member. As discussed above, the question is again raised whether parents should qualify for such leave in connection with an adult child and whether the FMLA regulations need to be amended before adult children could qualify for exigency leave in connection with a servicemember parent. As with Servicemember Leave, the Department of Labor has identified a number of issues which must be resolved and which will not be publicly flushed out before the DOL issues final regulations later this year.

The proposed regulations and supporting comments are 127 pages long, also address a variety of issues identified last year by the mammoth DOL Report on the FMLA, and amend a number of FMLA regulations and forms. There will be more on that later.

Insomniacs can read the NDAA at http://www.govtrack.us/congress/billtext.xpd?bill=h110-4986

The DOL’s proposed regulations and supporting commentary which address both the NDAA amendments to the FMLA and other issues related to medical certification forms, intermittent leave, etc. can be found by insomniacs at http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf. The DOL will take comments on the proposed regulations until April 11, 2008.

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.

Supreme Court Hears Debate of Whether Wrongful Discharge Claim Is Valid Based on Safety Concerns Shared with Insurance Auditor

Today, the Ohio Supreme Court heard oral argument about whether public policy wrongful discharge claims should be recognized when the employee did not “blow the whistle” to either a government agency or management about safety concerns, but rather, complained to a private sector insurance auditor about his paranoia of being set up to be fired in a document of fire alarm inspections.

As reported in the July 9, 2007 FYI, the Montgomery County Court of Appeals reversed summary judgment in favor of the defendant employer on the wrongful discharge claim after the plaintiff was fired for insubordination for expressing concern about the employer’s fire alarm system with an insurance agent who had been present to inspect the employer’s premises and provide an insurance quote. Dohme v. Eurand Am., Inc., 2007-Ohio-865 (3/2/07). Notably, the plaintiff had not been fired several years earlier when he reported to the fire department that one of the fire alarms had malfunctioned during a fire. Instead, he was transferred to another position which made him responsible for the fire alarm system. A few days prior to his termination for insubordination, the employer had specifically prohibited all employees from speaking with the insurance agent who was scheduled to inspect the premises. Although the plaintiff had not been specifically authorized in writing to meet with the insurance agent, he says that he had been asked to fill in for an absent employee. He then provided a report to the agent about overdue fire alarm inspections and noted that “suspiciously” one of the overdue inspections had not been included on the report. Plaintiff testified that he did not want to be blamed for the omission.

The employer argued that no public policy was jeopardized or implicated by the plaintiff’s termination as required by Ohio law. “Moreover, Plaintiff's statements did not indicate a concern for work place safety. The plain language of his comments only indicates his own suspicion that the missing inspection report is an attempt by Defendant to set him up for a deficient job performance.” However, the Court of Appeals rejected this argument: “[T]he employee's intent is largely irrelevant in an analysis of the clarity element of a wrongful discharge claim. What is relevant is whether [plaintiff] did in fact report information to the inspector that encompassed a public policy favoring workplace safety. If [plaintiff] did so, then the trial court erred in granting summary judgment.” Under state and federal law, “[t]here is a clear public policy favoring workplace fire safety. Therefore, retaliation against employees who raise concerns relating to workplace fire safety contravenes a clear public policy. . . . An employee who reports fire safety concerns to the employer's insurance inspector, regardless of the employee's intent in doing so, is protected from being fired solely for the sharing of the safety information.”

The Court of Appeals also rejected the employer’s argument that the plaintiff had failed to report his concerns to a government agency and chose, instead, an insurance agent. The Court determined that this argument “ignores the fact that an insurer's requirements may function to avoid fire safety defects. When such requirements are imposed, or higher premiums are the alternative, an employer . . . is motivated to cure safety defects. The market thus plays a role different from that of government, which may issue citations, but perhaps more immediate and compelling. And, making the insurer aware of defects through its representative furthers the public interest in effective fire safety measures.”

The Court of Appeals also rejected the argument that an “employee must make some formal announcement that his statements are being made for the purpose of protecting the public policy favoring workplace safety. Employers are presumed to be sophisticated enough to comply with the workplace safety laws. When an employer directs employees to not speak to an insurance representative inspecting a premises, an implication arises that the employer wishes to cover up defects, including those that create a danger to employees. Supporting the employer's conduct endorses its efforts to conceal potential dangers. As the Jermer court recognized, the Supreme Court views employee complaints as critical to the enforcement of the State's public policy. We would be minimizing the importance of these complaints and the State's public policy were we to concentrate on the employee's intent in raising the safety concern rather than on whether the employee's complaints related to the public policy and whether the employer fired the employee for raising the concern.”

During oral argument, the Supreme Court was told that there was no authority supporting the appellate court’s holding that whistleblowing claims can exist even when the whistleblower did not share his or her concerns with a government agency or with management. Some of the justices’
questions indicated that they were skeptical of drawing a bright line for whistleblowing claims which would limit them to government agents or management. Rather, a suggestion was made that public policy might be better served if whistleblower claims were recognized when the concerns were shared with anyone with power to remedy an unsafe situation. The employer’s attorney suggested that such a rule could lead to whistleblower claims being brought when employees merely reported their concerns to co-workers or to their spouses. Questions then focused on whether the insurance auditor could have improved an allegedly unsafe condition such that public policy would be served by recognizing a whistleblower claim when the concerns are shared with an insurance company. Apparently, the trial court record had not been sufficiently developed on that point.

Insomniacs can watch the oral argument at http://www.sconet.state.oh.us/videostream/archives/2008/

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 Supreme Court Agrees That Former Employee's Use of Secret Client Information from Memory Violates Trade Secrets Act

Today, a unanimous Ohio Supreme Court ruled that the Uniform Trade Secrets Act was violated by a former employee who had formed his own actuarial business and – based strictly on his own memory of customers he had met during his employment -- solicited a few customers from his former employer’s trade secret customer list. Al Minor & Assoc., Inc. v. Martin, Slip Opinion No. 2008-Ohio-292. In doing so, the Court affirmed the Franklin County Court of Appeals and Court of Common Pleas which had imposed a verdict of $25, 973 against the former employee.

According to the Court's opinion, the defendant employee had never been required to sign a non-competition agreement during his employment with the plaintiff employer. When he ultimately resigned his employment and started his own competing business, the employee took no confidential or trade secret documents with him. Nonetheless, he solicited 15 of his former employer’s 500 customers based on his own memory of the individuals and companies with whom he had previously done business. The former employer sued for lost business in the amount of $25,973 and sought, but was denied, an injunction against the former employee.

Importantly, the defendant employee failed to preserve the issue as to whether the client list at issue in fact satisfied the statutory definition of trade secret. Therefore, the Court was not faced with deciding whether the employer had taken appropriate steps to keep information on the list secret, etc. and was, instead, limited to assuming that the list was a trade secret. “Every employee will of course have memories casually retained from the ordinary course of employment. The Uniform Trade Secrets Act does not apply to the use of memorized information that is not a trade secret pursuant to R.C. 1333.61(D).”

Where the underlying customer list was a trade secret, “[n]either R.C. 1333.61(D) nor any other provision of the UTSA suggests that, for purposes of trade secret protection, the General Assembly intended to distinguish between information that has been reduced to some tangible form and information that has been memorized.” While some older trade secret cases in some states recognized a distinction between memorized information and information derived from a written list, “[i]n principle, however, the distinction between written and memorized information should not be encouraged. The form of the information and the manner in which it is obtained are unimportant; the nature of the relationship and the defendant’s conduct should be the determinative factors. The distinction places a premium upon good memory and a penalty upon forgetfulness, and it cannot be justified either from a logical or pragmatic point of view.”

“Based on the foregoing, we conclude that the determination of whether a client list constitutes a trade secret pursuant to R.C. 1333.61(D) does not depend on whether it has been memorized by a former employee. Information that constitutes a trade secret pursuant to R.C. 1333.61(D) does not lose its character as a trade secret if it has been memorized. It is the information that is protected by the UTSA, regardless of the manner, mode, or form in which it is stored – whether on paper, in a computer, in one’s memory, or in any other medium.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/0/2008/2008-Ohio-292.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.

Federal Sixth Circuit Revives Retaliation Claim Where Employer Fired Employee Upon Learning of EEOC Charge.

On January 31, 2008, the Sixth Circuit affirmed the dismissal of an age discrimination claim where the plaintiff could not identify a similarly-situated younger employee with better treatment, but revived a retaliation claim where the employer had fired the employee the same morning he returned to the office after the EEOC served the employer with the EEOC Charge. Mickey v. Zeidler Tool & Die Co., No. 06-1960 (6th Cir. 1/31/08). In particular, the EEOC Charge was received on October 14, 2004 while the employer was out of town. He returned to work on October 19, 2004 and fired the plaintiff at 7:30 a.m. in the morning. The Court held that the proximity of the employer’s termination decision and learning of the EEOC Charge was sufficient by itself to establish a prima facie case of retaliation.

The Court's opinion also suggested that events which predated the filing of the EEOC Charge and the employer's knowledge of it could support a prima facie case, but there was a dissenting opinion on that issue.

In addition, the plaintiff presented sufficient evidence of pretext. While the employer claimed that his decision had been motivated by poor business conditions and the lack of work for the plaintiff to perform, the plaintiff was able to show that the records that the employer had been reviewing the prior weekend showed it was profitable in 2004 and that it had been recruiting to hire employees with the plaintiff’s qualifications both before and after the plaintiff’s termination. While the jury could believe that the employer was attempting to keep the company afloat after three years of losses, the court refused to make that determination at the summary judgment stage. Moreover, although the employer claimed the plaintiff’s performance had been deficient and had substantially reduced his compensation earlier in the year, there were no negative performance evaluations in his personnel file. Further, the employer’s answers to deposition questions were evasive when asked whether the EEOC Charge played a role in the termination decision. Indeed, at one point the employer denied knowing about the EEOC Charge before he terminated the plaintiff and then corrected himself when challenged.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0056p-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. 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.