Ohio Court of Appeals: Affirms OCRC Ruling that Employer Illegally Terminated Pregnant Employee Who Did Not Qualify for Leave Under Employer’s Policy

Last month, the Licking County Court of Appeals reversed the trial court and affirmed a ruling by the Ohio Civil Rights Commission that a nursing home employer violated the Ohio Civil Rights Act when it terminated a licensed practical nurse who sought medical leave on account of her pregnancy because she had yet not been employed for one year and did not qualify for any leave of absence under the employer’s leave of absence policy. Nursing Care Mgt. of Am., Inc. v. Ohio Civ. Rights Comm., 2009-Ohio-1107. The Court agreed that the Ohio Civil Rights Act requires Ohio employers to provide pregnancy/maternity leave even if does not otherwise provide any leaves of absence to male or female employees under similar circumstances. In other words, the Ohio Civil Rights Act does not merely require that pregnant employees be treated the same as male employees, it requires the employer to provide maternity leave even if similarly disabled male employees are not entitled to a leave of absence.

According to the court’s opinion, the plaintiff nurse was hired by the nursing home, which provided medical and other leaves of absence to employees only after they had completed one year of service. Before the plaintiff had completed eight months, her physician indicated that she required a medical leave of absence because of her pregnancy and could return six weeks after delivery; she gave birth days later. The employer terminated her three days after she gave birth because she had not completed one year of employment, but called and offered her re-employment just a few weeks later (before she was physically able to return to work according to her own physician). The plaintiff never returned the employer’s calls or returned to work. Instead, she filed a Charge of Discrimination with the OCRC and remained unemployed for another nine months.

The Court agreed with the OCRC that the OCRA requires employers to provide a reasonable amount of maternity leave to all employees and cannot impose a length of service requirement, even if the requirement applies equally to all employees. In particular, Ohio Administrative Code § 4112-5-05(2) provides ““(2) Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.”

Indeed, Ohio Administrative Code § 4112-5-05 (6) provides that even “if the employer has no leave policy, childbearing must be considered by the employer to be a justification for leave of absence for a female employee for a reasonable period of time. Following childbirth, and upon signifying her intent to return within a reasonable time, such female employee shall be reinstated to her original position or to a position of like status and pay, without loss of service credits.”

The Court did not address whether the plaintiff had sufficiently mitigated her damages by refusing to accept the employer’s unqualified offer of reinstatement.

Insomniacs may read the full decision at

New I-9 Form FINALLY Goes Into Use on Friday, April 3, 2009

After fits and starts, the Obama Administration has apparently finally blessed the new I-9 form which the Bush Administration announced in December 2008. All employers must begin using the new I-9 form on Friday, April 3, 2009 for all new employees who begin work as of that date.

As faithful readers may recall, USCIS announced in December 2008 that a new I-9 form would become mandatory for all employers on February 2, 2009. However, this new I-9 form was not placed on the USCIS website until the end of January 2009 – days after the Obama inauguration and only days before the mandatory deadline. Then, on Friday, January 30, 2009 -- only a week later and only one business day before the new form became mandatory -- the Obama administration announced that employers could not use the new form until April 3, 2009. Indeed, the new administration re-opened the review and public comment period on the I-9 form revisions until March 3, 2009.

Even though it is entirely possible that the Obama Administration will again pull the rug out from under us with only one day to go before the April 3 deadline, I am willing to risk a prediction that the form can now be used by employers on Friday.

Insomniacs can access the new I-9 form at http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf. There are also Spanish versions available on the USCIS.gov website.

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.

Despite Union Conflict of Interest Supreme Court Enforces Arbitration of Employees’ ADEA Claims Based on CBA’s Reference to ADEA in Arbitration Clause

Today, the United States Supreme Court (in a 5-4 decision) reversed the Second Circuit Court of Appeals’ refusal to enforce the arbitration clause and held that a “a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 (ADEA) . . . is enforceable.” 14 Penn Plaza LLC v. Pyett, No. 07-581. The plaintiffs were members of the SEIU and their collective bargaining agreement provided, among other things that age, race, sex discrimination was prohibited and that “[a]ll such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination." The Court held that this “clear and unmistakable” waiver of their statutory ADEA right to a jury trial was enforceable because the union was the authorized bargaining representative for the plaintiff employees and “the collective-bargaining agreement's arbitration provision expressly covers both statutory and contractual discrimination claims.” The Court brushed off the inherent conflict of interest between the union and its members’ discriminate claims, finding that those issues could be better resolved through the political process, and through breach of fair representation and discrimination claims brought against the union by the employees.

According to the Court’s opinion, one of the joint-employers owed an office building which engaged the other joint employer (a maintenance and cleaning service). The plaintiffs were employed as night watchmen. With the union’s consent, the building management replaced the other joint employer with a unionized security firm (affiliated with the joint employer) which could supply licensed security guards. Thus replaced, the plaintiffs were then reassigned to positions as night porters and light duty cleaners. They objected and filed a grievance under the CBA that the reassignments constituted, among other things, age discrimination and that they were denied seniority benefits and overtime.

The grievances proceeded to arbitration. However,

“[a]fter the initial arbitration hearing, the Union withdrew the first set of . . . grievances--the age-discrimination claims--from arbitration. Because it had consented to the contract for new security personnel [at the office building], the Union believed that it could not legitimately object to respondents' reassignments as discriminatory.”

The plaintiffs then filed Charges with the EEOC alleging that their transfers had violated ADEA, but the EEOC dismissed the Charges as lacking substantiating evidence. With their right-to-sue letters in hand, the plaintiffs then filed suit in federal court and the employers moved to compel arbitration of their claims under the Federal Arbitration Act. The District Court refused to compel arbitration on the grounds that a union cannot waive the individual statutory rights of employees to pursue ADEA claims in a collective bargaining agreement. The Second Circuit Court of Appeals affirmed, stating that “it could not compel arbitration of the dispute because Gardner-Denver, which ‘remains good law,’ held ‘that a collective bargaining agreement could not waive covered workers' rights to a judicial forum for causes of action created by Congress.’”

The Court’s majority found that the union and employers

“collectively bargained in good faith and agreed that employment-related discrimination claims, including claims brought under the ADEA, would be resolved in arbitration. This freely negotiated term between the Union and the RAB easily qualifies as a ‘conditio[n] of employment’ that is subject to mandatory bargaining. . . . The decision to fashion a CBA to require arbitration of employment-discrimination claims is no different from the many other decisions made by parties in designing grievance machinery.”

Rejecting the argument that the union is not authorized to bargain away the employees’ statutory rights,

“[a]s in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer. Courts generally may not interfere in this bargained-for exchange. ‘Judicial nullification of contractual concessions ... is contrary to what the Court has recognized as one of the fundamental policies of the National Labor Relations Act--freedom of contract.’"

In that the ADEA does not preclude the arbitration of ADEA claims, there is nothing in the NLRA which precludes unions from negotiating that the employees’ future ADEA claims are subject to the grievance and arbitration provisions of the CBA.

“Examination of the two federal statutes at issue in this case, therefore, yields a straightforward answer to the question presented: The NLRA provided the Union and the [employers] with statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not terminate that authority with respect to federal age-discrimination claims in the ADEA. Accordingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely negotiated by the Union and the [employers], and which clearly and unmistakably requires [plaintiffs] to arbitrate the age-discrimination claims at issue in this appeal. Congress has chosen to allow arbitration of ADEA claims. The Judiciary must respect that choice.”

In reaching this decision, the Court brushed off contrary language from Gardner-Denver, which indicated that union arbitrations – while suitable for contractual claims -- were not an appropriate forum for resolving discrimination claims and questioned the competence of arbitrators to decide federal statutory claims.

The Court also dismissed its earlier concerns in Gardner-Denver about the inherent conflict of interest between a union and its individual members.

“[I]n arbitration, as in the collective-bargaining process, a union may subordinate the interests of an individual employee to the collective interests of all employees in the bargaining unit. . . . ‘The union's interests and those of the individual employee are not always identical or even compatible. As a result, the union may present the employee's grievance less vigorously, or make different strategic choices, than would the employee.’”

Nonetheless, the Court found that “there is ‘no reason to color the lens through which the arbitration clause is read’ simply because of an alleged conflict of interest between a union and its members.. . . . . This is a ‘battl[e] that should be fought among the political branches and the industry. Those parties should not seek to amend the statute by appeal to the Judicial Branch.’”

Moreover,

"‘[t]he conflict-of-interest argument also proves too much. Labor unions certainly balance the economic interests of some employees against the needs of the larger work force as they negotiate collective-bargain agreements and implement them on a daily basis. But this attribute of organized labor does not justify singling out an arbitration provision for disfavored treatment. This ‘principle of majority rule’ to which [the plaintiffs now] object is in fact the central premise of the NLRA. . . . In establishing a regime of majority rule, Congress sought to secure to all members of the unit the benefits of their collective strength and bargaining power, in full awareness that the superior strength of some individuals or groups might be subordinated to the interest of the majority." . . . It was Congress' verdict that the benefits of organized labor outweigh the sacrifice of individual liberty that this system necessarily demands. [The plaintiffs’] argument that they were deprived of the right to pursue their ADEA claims in federal court by a labor union with a conflict of interest is therefore unsustainable; it amounts to a collateral attack on the NLRA.”

In any event, the union members may sue the union directly for failing in their duty of fair representation or for its own age discrimination.

The ”NLRA has been interpreted to impose a "duty of fair representation" on labor unions, which a union breaches "when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith. . . . This duty extends to "challenges leveled not only at a union's contract administration and enforcement efforts but at its negotiation activities as well. . . . Thus, a union is subject to liability under the NLRA if it illegally discriminates against older workers in either the formation or governance of the collective-bargaining agreement, such as by deciding not to pursue a grievance on behalf of one of its members for discriminatory reasons. In this case, the plaintiffs also had “brought a fair representation suit against the Union based on its withdrawal of support for their age-discrimination claims. . . . Given this avenue that Congress has made available to redress a union's violation of its duty to its members, it is particularly inappropriate to ask this Court to impose an artificial limitation on the collective-bargaining process.”

Insomniacs can read the full court opinion at http://

Franklin County Court of Appeals Affirms Dismissal of Age and Disability Claims Brought by Fire Fighter

Last week, the Franklin County Court of Appeals affirmed the dismissal of disability and age discrimination claims brought by a fire lieutenant who was passed over for a promotion to captain. Sheridan v. Jackson Twp. Div. Fire, 2009-Ohio-1267. In short, the court agreed that plaintiff’s foot/ankle impairment was not “substantially limiting” when it did not preclude him from performing his firefighting duties. The age discrimination claim was dismissed because the successful candidate was only seven years younger than the plaintiff and the law does not require the employer to promote the oldest candidate.

According to the court’s opinion, the plaintiff claimed to have a disability “based on the fact that he has undergone several foot/ankle surgeries. Although he stated that these medical problems prevent him from running, mowing the lawn, or walking long distances without pain, the fact remains that he can still perform the duties of his job with the fire department. . .. Mere difficulty in standing or walking is not sufficient to establish a substantial limitation on the major life activity of walking . . . Even moderate difficulty in walking may not establish a substantial impairment . . . . Because [the plaintiff] is able to perform his occupational duties—fighting fires—it is difficult to conclude that he has a disability of the substantially limiting variety. This precludes relief under the ADA.”

Insomniacs can read the full court opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-1267.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.

DOL Publishes Model Notices for COBRA Subsidy Under Stimulus Act to Be Sent by Employers Before April 18

As summarized here on February 23, 2009, the recently enacted American Recovery and Reinvestment Act of 2009 (the “Act”) contains a provision where the federal government will partially subsidize the continuation of medical insurance coverage for involuntarily terminated employees for up to nine months if they are eligible for continued medical coverage under COBRA or similar state law. The continued medical coverage is available to any employee who participates in an employer-sponsored health plan and who is involuntarily terminated after September 1, 2008 but before December 31, 2009 – even if the employee did not initially elect to continue medical coverage after his or her termination. Under the Act, the Department of Labor is required to publicize acceptable model notices by mid-March 2009 and employers are required to send by April 18, 2009 the revised notice to all employees involuntarily terminated since September 1, 2008 (and to other eligible individuals who lost medical coverage between September 30 and February 16). The DOL has recently published on its website the model notices required by the Act and they can be accessed at http://www.dol.gov/ebsa/COBRAmodelnotice.html.

As explained by the DOL, the Act mandates that health “plans notify certain current and former participants and beneficiaries about the premium reduction. The Department created model notices to help plans and individuals comply with these requirements. Each model notice is designed for a particular group of qualified beneficiaries and contains information to help satisfy [the Act’s] notice provisions.”

The DOL has created three potential model notices:

1) The “General Notice (Full version) Plans subject to the Federal COBRA provisions must send the General Notice to all qualified beneficiaries, not just covered employees, who experienced a qualifying event at any time from September 1, 2008 through December 31, 2009, regardless of the type of qualifying event. This full version includes information on the premium reduction as well as information required in a COBRA election notice.”

2) “The Abbreviated General Notice: The abbreviated version of the General Notice includes the same information as the full version regarding the availability of the premium reduction and other rights under [the Act], but does not include the COBRA coverage election information. It may be sent in lieu of the full version to individuals who experienced a qualifying event during on or after September 1, 2008, have already elected COBRA coverage, and still have it.”

3) “Alternative Notice Insurance issuers that provide group health insurance coverage must send the Alternative Notice to persons who became eligible for continuation coverage under a State law. Continuation coverage requirements vary among States, and issuers should modify this model notice as necessary to conform it to the applicable State law. Issuers may also find the model Alternative Notice or the abbreviated model General Notice appropriate for use in certain situations.”

4) “Notice in Connection with Extended Election Periods Plans subject to the Federal COBRA provisions must send the Notice in Connection with Extended Election Periods to any assistance eligible individual (or any individual who would be an assistance eligible individual if a COBRA continuation election were in effect) who:

A. Had a qualifying event at any time from September 1, 2008 through February 16, 2009 [i.e., lost their job and/or medical coverage]; and
B. Either did not elect COBRA continuation coverage, or who elected it but subsequently discontinued COBRA.

Insomniacs can read these provisions of the Act in full at http://www.dol.gov/ebsa/pdf/COBRAPremiumReductionProvision.pdf. The Department of Labor published the new model COBRA notice on its website at http://www.dol.gov/ebsa/cobra.html.