EEOC Issues New Guidance For Employers Under the ADA on Holding Employees Accountable for Performance and Conduct Standards.

Yesterday, the EEOC issued a question-and-answer guide for employers on how to address performance and conduct issues with employees with disabilities. “The new guide makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards. At the same time, however, employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards. . . . Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.”

For instance, the EEOC guide provides that “[a]n employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job. Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation. However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard.”

By way of example, the EEOC described the following situation: “Last year Nicole received an “above average” review at her annual performance evaluation. During the current year Nicole had to deal with a number of medical issues concerning her disability. As a result, she was unable to devote the same level of time and effort to her job as she did during the prior year. She did not request reasonable accommodation (i.e., inform the employer that she requires an adjustment or change as a result of a medical condition). The quantity and quality of Nicole’s work were not as high and she received an “average” rating. The supervisor does not have to raise Nicole’s rating even though the decline in performance was related to her disability.”

Even if the employee raises the issue of her disability upon receiving notice of the lower performance evaluation rating, the employer is not required to raise the performance evaluation rating because of the employee’s late notice or belated request for an accommodation. Nonetheless, once a request for a reasonable accommodation is made, the employer should explore the accommodation before issuing future corrective action or performance evaluations. For instance, if the employee requests an accommodation after the employer verbally warns the employee that a written warning will be issued if her performance does not improve within a month, the employer is not required to withdraw the one-month evaluation warning period, but should engage in the accommodation process (i.e., request medical documentation and explore the proposed accommodation) before instituting the one-month evaluation period. Importantly, if the employee waited until being informed of his/her termination from employment to inform the employer of a disability and request a reasonable accommodation, the employer is generally not required to postpone the employee’s termination. “The employer may refuse the request for reasonable accommodation and proceed with the termination because an employer is not required to excuse performance problems that occurred prior to the accommodation request. Once an employer makes an employee aware of performance problems, the employee must request any accommodations needed to rectify them.”

“When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer (1) tolerate or excuse the poor performance; (2) withhold disciplinary action (including termination) warranted by the poor performance; (3) raise a performance rating; or (4) give an evaluation that does not reflect the employee’s actual performance.”

The EEOC also explained that “[i]f an employee’s disability does not cause the misconduct, an employer may hold the individual to the same conduct standards that it applies to all other employees. In most instances, an employee’s disability will not be relevant to any conduct violations.” By way of example, the EEOC described “[a] blind employee has frequent disputes with her supervisor. She makes personal phone calls on company time, despite being told to stop. She routinely walks away from the job to smoke a cigarette despite warnings that she can do so only on breaks. She taunts the supervisor and disobeys his instructions regarding safe use of equipment. The employee’s actions are unrelated to her disability and the employer may discipline her for insubordination.”

“The ADA generally gives employers wide latitude to develop and enforce conduct rules. The only requirement imposed by the ADA is that a conduct rule be job-related and consistent with business necessity when it is applied to an employee whose disability caused her to violate the rule. Certain conduct standards that exist in all workplaces and cover all types of jobs will always meet this standard, such as prohibitions on violence, threats of violence, stealing, or destruction of property. Similarly, employers may prohibit insubordination towards supervisors and managers and also require that employees show respect for, and deal appropriately with, clients and customers. Employers also may (1) prohibit inappropriate behavior between coworkers (e.g., employees may not yell, curse, shove, or make obscene gestures at each other at work); (2) prohibit employees from sending inappropriate or offensive e-mails (e.g., those containing profanity or messages that harass or threaten coworkers); using the Internet to access inappropriate websites (e.g., pornographic sites, sites exhibiting crude messages, etc.); and making excessive use of the employer’s computers and other equipment for purposes unrelated to work; (3) require that employees observe safety and operational rules enacted to protect workers from dangers inherent in certain workplaces (e.g., factories with machinery with accessible moving parts); and (4) prohibit drinking or illegal use of drugs in the workplace. . . . Whether an employer’s application of a conduct rule to an employee with a disability is job-related and consistent with business necessity may rest on several factors, including the manifestation or symptom of a disability affecting an employee’s conduct, the frequency of occurrences, the nature of the job, the specific conduct at issue, and the working environment. These factors may be especially critical when the violation concerns “disruptive” behavior which, unlike prohibitions on stealing or violence, is more ambiguous concerning exactly what type of conduct is viewed as unacceptable.”

By way of example, the EEOC provided the following hypotheticals to illustrate these principles:
Example 17: A telephone company employee’s job requires her to spend 90% of her time on the telephone with coworkers in remote locations, discussing installation of equipment. The company’s code of conduct requires workers to be respectful towards coworkers. Due to her psychiatric disability, the employee walks out of meetings, hangs up on coworkers on several occasions, and uses derogatory nicknames for coworkers when talking with other employees. The employer first warns the employee to stop her unacceptable conduct, and when she persists, issues a reprimand. After receiving the reprimand, the employee requests a reasonable accommodation. The employee’s antagonistic behavior violated a conduct rule that is job-related and consistent with business necessity and therefore the employer’s actions are consistent with the ADA. However, having received a request for reasonable accommodation, the employer should discuss with the employee whether an accommodation would assist her in complying with the code of conduct in the future.

Example 20: An employee informs her supervisor that she has been diagnosed with bipolar disorder. A few months later, the supervisor asks to meet with the employee concerning her work on a recent assignment. At the meeting, the supervisor explains that the employee’s work has been generally good, but he provides some constructive criticism. The employee becomes angry, yells at the supervisor, and curses him when the supervisor tells her she cannot leave the meeting until he has finished discussing her work. The company terminates the employee, the same punishment given to any employee who is insubordinate. The employee protests her termination, telling the supervisor that her outburst was a result of her bipolar disorder which makes it hard for her to control her temper when she is feeling extreme stress. She says she was trying to get away from the supervisor when she felt she was losing control, but he ordered her not to leave the room. The employee apologizes and requests that the termination be rescinded and that in the future she be allowed to leave the premises if she feels that the stress may cause her to engage in inappropriate behavior. The employer may leave the termination in place without violating the ADA because the employee’s request for reasonable accommodation came after her insubordinate conduct.

The EEOC also recognized that “[a]n employer may enforce conduct rules that are not found in workplace policies, employee handbooks, or similar documents so long as they are: (1) job-related and consistent with business necessity, and (2) applied consistently to all employees and not just to a person with a disability. Many times, the proscribed conduct is well understood by both the employer and employees as being unacceptable without being formally written, such as a prohibition on insubordination.” By way of example, “Mary’s disability has caused her to yell at and insult her supervisor and coworkers. There is no formal policy addressing such conduct, nor need there be. Prohibiting an employee from acting belligerently towards a supervisor or coworkers is job-related and consistent with business necessity, and thus Mary’s supervisor may discipline her as long as the same discipline would be imposed on a non-disabled employee for the same conduct.”

With respect to attendance expectations, ”[e]mployees with disabilities are entitled to whatever forms of leave the employer generally provides to its employees. This means that when an employee with a disability seeks leave under an employer’s regular leave policies, she must meet any eligibility requirements for the leave that are imposed on all employees (e.g., only employees who have completed a probation program can be granted advance leave). Similarly, employers must provide employees with disabilities with equal access to programs granting flexible work schedules and modified schedules. . . . Although the ADA may require an employer to modify its time and attendance requirements as a reasonable accommodation (absent undue hardship), employers need not completely exempt an employee from time and attendance requirements, grant open-ended schedules (e.g., the ability to arrive or leave whenever the employee’s disability necessitates), or accept irregular, unreliable attendance. Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without advance notice. 73 The chronic, frequent, and unpredictable nature of such absences may put a strain on the employer’s operations for a variety of reasons, such as . . . (1) an inability to ensure a sufficient number of employees to accomplish the work required; (2) a failure to meet work goals or to serve customers/clients adequately; (3)a need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them; (4) incurring significant additional costs when other employees work overtime or when temporary workers must be hired. Under these or similar circumstances, an employee who is chronically, frequently, and unpredictably absent may not be able to perform one or more essential functions of the job, or the employer may be able to demonstrate that any accommodation would impose an undue hardship, thus rendering the employee unqualified.”

By way of example, “[a]n employee with asthma who is ineligible for FMLA leave works on an assembly line shift that begins at 7 a.m. Recently, his illness has worsened and his doctor has been unable to control the employee’s increasing breathing difficulties. As a result of these difficulties, the employee has taken 12 days of leave during the past two months, usually in one- or two-day increments. The severe symptoms generally occur at night, thus requiring the employee to call in sick early the next morning. The lack of notice puts a strain on the employer because the assembly line cannot function well without all line employees present and there is no time to plan for a replacement. The employer seeks medical documentation from the employee’s doctor about his absences and the doctor’s assessment of whether the employee will continue to have a frequent need for intermittent leave. The doctor responds that various treatments have not controlled the asthmatic symptoms, there is no way to predict when the more serious symptoms will suddenly flare up, and he does not expect any change in this situation for the foreseeable future. Given the employee’s job and the consequences of being unable to plan for his absences, the employer determines that he cannot keep the employee on this shift. Assuming no position is available for reassignment, the employer does not have to retain the employee.”

As an another example, “an employee works as an event coordinator. She has exhausted her FMLA leave due to a disability and now requests additional intermittent leave as a reasonable accommodation. The employee can never predict when the leave will be needed or exactly how much leave she will need on each occasion, but she always needs from one to three days of leave at a time. The employer initially agrees to her request and the employee takes 14 days of leave over the next two months. Documentation from the employee’s doctor shows that the employee will continue to need similar amounts of intermittent leave for at least the next six months. Event planning requires staff to meet strict deadlines and the employee’s sudden absences create significant problems. Given the employee’s prognosis of requiring unpredictable intermittent leave, the employer cannot plan work around these absences. The employer has already had to move coworkers around to cover the employee’s absences and delay certain work. The on-going, frequent, and unpredictable nature of the absences makes additional leave an undue hardship, and thus the employer is not required to provide it as a reasonable accommodation. If the employer cannot reassign the employee to a vacant position that can accommodate her need for intermittent leave, it is not required to retain her.”

“Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration. Granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations. Indefinite leave is different from leave requests that give an approximate date of return (e.g., a doctor’s note says that the employee is expected to return around the beginning of March) or give a time period for return (e.g., a doctor’s note says that the employee will return some time between March 1 and April 1). If the approximate date of return or the estimated time period turns out to be incorrect, the employer may seek medical documentation to determine whether it can continue providing leave without undue hardship or whether the request for leave has become one for leave of indefinite duration.”

Insomniacs can read the full guidance at http://www.eeoc.gov/facts/performance-conduct.html#conduct.

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: Arbitrator Exceeded Authority in Ignoring Parties’ Stipulation Removing Legal Issue from Consideration.

Today, the Summit County Court of Appeals vacated an arbitrator’s order reinstating a city health department employee who had been discharged for taking college classes when she was supposed to be on FMLA leave. City of Akron v. Civ. Serv. Personnel Assn., Inc., 2008-Ohio-4331. The court disagreed with the arbitrator’s rationale that the city’s pre-termination notice was constitutionally deficient because its focus seemed to announce a decision already made instead of giving her notice of her opportunity to present exculpatory evidence to preserve her employment. Instead, the court found that the arbitrator exceeded her authority by ignoring the parties' stipulation that the city had honored the employee's Loudermill rights by holding the pretermination hearing when the arbitrator ruled that the city had violated the employee's due process rights through a defective notice of termination.

According to the court’s decision, the employee “sought to attend college courses during regular working hours through the City’s “Academic Flexible Work Schedules” program, [but] withdrew her request to participate in the program . . . when management indicated that staffing shortages necessitated her working all of her regular hours. Instead, [the employee] submitted a request for Family Medical Leave Act (“FMLA”) leave time in order to care for her sick son. Health Department investigators later discovered [the employee] attending a college course during the hours that she had been approved to take her FMLA leave time.” Not surprisingly, “the City subsequently notified [the employee] that she was being recommended for discharge.” According to the City, a pretermination hearing was then held “consistent with Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532. The City further claims that [the employee’s union] sent the City a “Loudermill Response” after the hearing” on October 20, 2006. The union also filed a grievance challenging the employee’s termination. The City says that it considered all of this information and then City “finally notified [the employee] on October 23, 2006 that she was in fact being discharged, effective October 24, 2006.” The union sought arbitration on October 31, 2006.

During the March 2007 arbitration hearing, the parties “entered two stipulations before the arbitrator: (1) that the matter was properly before the arbitrator for resolution, and (2) that [the employee] had been given a Loudermill hearing.” Notwithstanding these stipulations, the arbitrator reinstated the employee in May 2007 because she determined that the City “failed to comply with Loudermill and the due process protections afforded to [the employee] as a civil servant. The arbitrator reasoned that the City’s notice of discharge, issued on October 11, 2006, clearly informed [the employee] that she was “hereby discharged” even though it preceded any response from [the union]. Therefore, the arbitrator determined that the City never gave [the employee] a pretermination opportunity to respond to the charges against her and terminated her without just cause.” When the city filed an appeal to vacate the arbitration decision, the trial court confirmed the arbitration award on the grounds that the parties’ stipulation raised factual matters which could not be reversed on appeal.

On appeal, the city argued that the arbitrator ignored the parties’ stipulation that the city had honored the employee’s Loudermill rights and the Court agreed. “An arbitrator also exceeds her authority, however, when she misinterprets or exceeds the conditions of a stipulation. Moreover, “Loudermill [only] requires a ‘classified civil service employee’ to be given a pretermination disciplinary hearing. . . . [S]uch hearing need not be elaborate, but must afford the employee the opportunity to have an explanation of the employer’s charges and evidence against [her], and an opportunity to present [her] side of the story.” The Court determined that the parties’ Loudermill stipulation removed a legal issue from the arbitrator’s consideration and was not merely a factual stipulation which was beyond the court’s jurisdiction to review on appeal. “By wholly ignoring the stipulation, the arbitrator went beyond the scope of the issue presented to her and exceeded her authority,” which is a matter determined by the contract -- and stipulations – entered into by the parties (i.e., the employer and the union).

Insomniacs can read the decision in full at http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-4331.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: Workers Compensation Does Not Bar Negligent Hiring Claim When Co-Worker Rapes Employee, Which Was Not Foreseeable.

Yesterday, the Butler County Court of Appeals affirmed the dismissal of a negligent hiring claim against a residential facility for the mentally disabled. Prewitt v. Alexson Servs., Inc., 2008-Ohio-4306 (8/25/08). In that case, an employee raped a co-worker, who then argued that the employer was negligent in its hiring and supervision of the rapist. Although the trial court dismissed the lawsuit on the grounds that her claim was covered and barred by the workers compensation statutes and his crime was not foreseeable based on the rapist’s prior criminal history, the Court of Appeals affirmed only on the grounds that the rape was not reasonably foreseeable under the circumstances.

The plaintiff employee argued that the employer was negligent in hiring and supervising the rapist and that her rape was reasonably foreseeable because the rapist had been convicted of disorderly conduct (for exposing himself in a public park) before he had been hired. He had also been investigated (and cleared) by the county MR/DD department and the local police after he was hired for assaulting a client by striking her with pillows. He had also been investigated twice by the local police for sexually assaulting patients. During these investigations, the rapist informed the police (who, in turn, informed the employer) that he suffered from bi-polar, was borderline schizophrenic and was not taking his medication. Moreover, he took a two-month FMLA leave of absence for his mental health issues and was cleared to return to work without any restrictions by his physician. Finally, another co-worker had privately claimed to the plaintiff that she had been raped twice by the rapist at work, but had never reported it because she did not want her family to know.

While the employer conducted pre-employment background and criminal checks of applicants, it relied on the employee’s honor to self- report any criminal convictions after the employee was hired. Nonetheless, the court found that this fact to be irrelevant in this case because the rapist had not been convicted of any similar crimes after being hired. Further, the pre-employment criminal check did not reveal the circumstances of the rapist’s disorderly conduct (which, in any event, was not – in the court’s opinion -- necessarily indicative of his predisposition to rape a co-worker in that it did not involve a physical assault). Because the employee had been returned to work by his physician after his FMLA leave without any restrictions, the court did not find that the rapist’s mental health issues were indicative of his future proclivity to rape a co-worker. In totality, the court found that there was no evidence that the employer possessed any knowledge which would indicate that it was reasonably foreseeable that the rapist would sexually assault a co-worker during working hours.

Nonetheless, the court reversed the trial court’s finding that the negligent supervision/hiring claims were barred by the workers compensation laws because the rape did not occur within the scope of the rapist’s duties, and therefore, was not an “accident.” Ohio Revised Code § 4123.74 provides, in pertinent part, "Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, * * * received * * * by any employee in the course of or arising out of his employment * * *." The employer argued that a prior Supreme Court decision (which held that the workers compensation laws did not bar sexual harassment claims) applied to bar this negligent hiring claim because the employee’s injury in this case was physical – not emotional as in sexual harassment cases.

However, the Court of Appeals disagreed: “Regardless of the nature of appellant's injuries suffered as a result of the rape, the controlling inquiry is whether the injury was "accidental" or occurred "in the course of or arising out of the employment." Under Ohio Revised Code § 4123.74, “an employer is not immune from liability for injuries not taking place in the course of or arising out of employment. "For an accident to 'arise out of' the employment as required under Workers' Compensation Act, it is necessary that the conditions or obligations of the employment put the employee in the position or at the place where the accident occurs; the accident need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence . . . The controlling test of whether an injury arises out of the employment is whether the injury is a natural and probable consequence of the nature of the employment. . . . . A similar analysis in this case demonstrates that the rape did not occur "in the course of" or "arise out of" appellant's employment as a rape is not a "natural and probable consequence" of the nature of the employment. Moreover, the rape does not constitute an ‘accident’ included in the definition of ‘injury.’"

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/12/2008/2008-ohio-4306.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.

Franklin County Court of Appeals Upholds OCRC Order That Employer Retaliated Against Office Manager For Informing Employee of Discrimination.

Last week, the Franklin County Court of Appeals upheld an order by the Ohio Civil Rights Commission reinstating an office manager who had been fired in retaliation for telling an African-American employee that he had been denied health insurance which was provided to white employees and for helping that employee bring a discrimination claim against the employer. HLS Bonding v. Ohio Civ. Rights Comm., 2008-Ohio-4107 (8/14/08). The court of appeals found sufficient evidence in the record to prove both a prima facie case of retaliation and that the employer’s explanation for his termination was pretextual -- i.e., a disguise to hide the true retaliatory motive.

In that case, the office manager had received nothing but positive performance evaluations and raises. Indeed, only a month before he was terminated, the managing partners asked him to join their business partnership. The office manager asked the employer to extend health insurance benefits to the company’s only full-time African-American employee, but they refused. He then told the employee how other (white) employees were provided with insurance benefits and that he thought the employee should receive similar benefits. That employee – who had requested insurance benefits in the past -- then confronted the employers (while taping the conversation with knowledge of the office manager) and filed a Charge of Discrimination with the OCRC which listed the office manager as a witness. After receiving a copy of the Charge, the employer then demoted the office manager, terminated all employee health insurance benefits, demoted the office manager again and ultimately fired him – purportedly for poor performance and insubordination.

The office manager filed a Charge with the OCRC alleging that he had been fired in retaliation for the African-American employee filing his Charge. Following a public hearing, the Commission ruled in favor of the office manager and ordered the employer to reinstate him and to pay him within ten days by certified check all back pay, benefits and interest (less his interim earnings).

Interestingly, the Court affirmed the OCRC’s ruling that the employer retaliated against the office manager under the Ohio Civil Right Act’s participation clause, rather than the opposition clause. Ohio Revised Code § 4112.02(I) provides that "[i]t shall be an unlawful discriminatory practice * * * [f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section ["opposition clause"] or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code ["participation clause"]." (emphasis added). This is probably because, as noted in my June 28, 2008 blog, “’[t]he distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.’ Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989).”

The Franklin County Court then noted that “reliable, probative, and substantial evidence supports the finding that [the office manager] engaged or participated in a protected activity. Anyone who participates in bringing a claim of unlawful discriminatory practice is engaging in a protected activity. [The office manager] alerted [the African-American employee] to the health care issue. [The office manager] told [the African-American employee] that he would testify on [the employee’s] behalf before the Commission. [The employee] named [the office manager] as a witness when he brought his claim. [The office manager] told his employer that it should offer [the employee] health care benefits [and] was present and knew [the employee] was "wired," when [he] then asked their employer for health care benefits.”

The court failed to explain why the office manager’s conduct was not protected opposition. As recently noted by the Sixth Circuit in Niswander v. The Cincinnati Ins. Co., No. 07-3738 (6th Cir. 6/24/08), “’The opposition clause . . . covers conduct such as “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the employer—e.g., former employers, union, and co-workers. . . . We have explained that ‘the only qualification that is placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition clause is that the manner of [the employee’s] opposition must be reasonable.” In contrast, the Sixth Circuit has noted that the participation clause “extends to persons who have participated in any manner in Title VII proceedings.” In this case, the Franklin County Court rejected the employer’s arguments that the office manager’s conduct could not constitute protected participation because it pre-dated the filing of the OCRC/EEOC Charge and any government investigation because the court considered "the instigation of proceedings leading to the filing of a complaint or a charge * * * is a prerequisite to protection under the participation clause” under Sixth Circuit precedent. It seems more likely that the OCRC and the court did not want to address the reasonableness of the office manager’s conduct under the opposition clause precedent.


The court found the evidence also showed that there was a causal connection between the filing of the OCRC Charge and the demotions and eventual termination of the office manager because the office manager’s first demotion – removing his authority over the benefit plans – took place only two weeks after the employer’s receipt of the OCRC Charge.

The court also agreed with the conclusion of pretext from the employer’s articulated explanation for why it demoted and terminated the office manager. First, the employer never counseled the office manager about his supposed poor performance before his demotion. On the contrary, they had recently asked him to become one of their business partners. In addition, the OCRC hearing officer office did not find the witness to be credible that the office manager was fired because he scared the managing partner during a conversation. Finally, the weight of the circumstantial evidence presented in the prima facie case was much more convincing as to why the office manager was fired.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-4107.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.

Butler County Court of Appeals Holds that Continuous Violation Doctrine Does Not Extend CBA Deadline for Filing Grievances.

Earlier this month, the Butler County Court of Appeals overruled an arbitration decision in favor of the union which had ordered the city employer to fill two vacant positions with bargaining unit members. City of Fairfield v. AFSCME, Ohio Council 8, 2008-Ohio-3891 (8/4/08). In that case, the collective bargaining agreement provided that grievances must be filed within 3 days of the event giving rise to the grievance. However, a grievance was not filed until almost a month after the issue came to the attention of the union. Nonetheless, the arbitrator ruled that the grievance was timely because it was a continuing violation for the City to continue to staff the duties of the two jobs at issue with non-union employees. The Court held that it was beyond the arbitrator’s authority to ignore the clear and unambiguous language in the CBA. In fact, the arbitrator lacked jurisdiction to even consider the grievance under the circumstances.

As stated by the court, “[t]he arbitrator was not authorized to ignore or modify plain and unambiguous provisions of the CBA. . . . Rather, the arbitrator was restricted to the interpretation and application of the CBA. . . . The CBA's three-day time limitation upon the filing of grievances was plain and unambiguous. The arbitrator's "continuing violation" determination did not comport with, and in fact defeated, the plain and unambiguous three-day time limitation upon grievances. This amounted to an impermissible extension of the arbitrator's powers. . . . The arbitrator cannot vest jurisdiction in himself. Holding that the arbitrator's assumption of jurisdiction is not subject to judicial review would permit the arbitrator unfettered discretion in assuming jurisdiction over a matter, even where none exists. Where an arbitrator's assumption of jurisdiction is unlawful, it is not an unassailable finding of fact or legal interpretation immune from the purview of a reviewing court. . . . Were it so, the arbitrator's determination of jurisdiction would be infallible even where contrary to the bargain contemplated by the terms of the CBA.” (citations omitted).

The Court “conclude[d] that the arbitrator's assumption of jurisdiction over the grievance was unlawful. Id. The award departed from the essence of the CBA in that it conflicted with an express, unambiguous term of the agreement. . . . The arbitrator thus exceeded his powers as contemplated by R.C. 2711.10(D) when he exercised jurisdiction over the grievance.” (citation omitted).

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/12/2008/2008-ohio-3891.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.