In December, President Obama signed the Department of Defense Appropriations Act for 2010 (the “DDAA”). In addition to prohibiting mandatory arbitration agreements which cover Title VII claims brought by employees of defense contractors, it also extended and expanded the COBRA premium subsidy established last year as part of the American Recovery and Reinvestment Act of 2009 (and reported last year here). The DDAA extends the duration of the COBRA subsidy had been scheduled to expire on December 31, 2009. Now, individual will be eligible for the COBRA subsidy if they are experienced a qualifying event (like termination) between September 1, 2008 and February 28, 2010 and the duration of the subsidy has been extended from 9 months to 15 months. Last month, the Department of Labor issued new model COBRA notices which employers are required to send out to newly eligible individuals, individuals who were receiving the subsidy and individuals whose eligibility period expired prior to December 19, 2009. Likewise, the Ohio Department of Insurance issued updated notices for small employers who are not covered by COBRA so that they are consistent with the new federal law. Employers should send out the notices within 60 days of when the individual became eligible for COBRA and no later than February 17, 2010.
There are three new notices (two federal and one state notice). The
Tuesday, February 9, 2010
Friday, February 5, 2010
Sixth Circuit: A Tale of Two RIFS With Different Endings
This week, the Sixth Circuit released two opinions in two days addressing claims that the plaintiff was selected for a reduction in force in violation of federal employment laws. In one, the Sixth Circuit affirmed summary judgment for the employer and in the other it reversed it and sent the case back for trial. In one case the plaintiff claimed she was selected for the RIF because of her age; in the other the plaintiff claimed that she was selected because of medical leave. In one case, the managers may have violated the employer’s RIF policy which they claimed they were following; in the other the managers likely violated the employer’s RIF policy, which they blamed on ignorance. This comparison highlights how even the slightest difference in facts can lead to much different results.
In the first case, Cutcher v. KMart Corporation, No. 09-1145 (6th Cir. 2010), six employees were selected to be laid off from a particular store as part of a nationwide layoff. According to the Court’s opinion, the plaintiff was selected for the RIF a few weeks after beginning FMLA leave and her duties distributed among the remaining sales associates. In the selection process, the employer considered her most recent performance evaluation and then conducted an updated evaluation (measuring the same competencies as the annual evaluations and containing a space for additional comments). The plaintiff had received an “exceeds expectations” or “exceptional” overall evaluation rating in the prior three years and then began a six-week medical leave involving surgery a few days after her last performance evaluation. A few weeks into her medical leave, the employer announced the RIF and selected plaintiff and five other employees to be laid off.
The employer’s updated evaluation form prohibited managers from considering a medical leave of absence as a factor, and required the manager to specifically explain if the employee had been downgraded since the last annual evaluation. It also required managers to base the updated evaluations on objective, observable performance. Notwithstanding these instructions, the plaintiff’s managers downgraded her updated performance evaluation rating even though they admittedly could not identify any performance issues in the 20 days between her annual evaluation and the updated evaluation conducted for the RIF. Rather, they explained that they felt her prior evaluation had been inflated and she possessed undocumented poor customer service and teamwork skills. In addition, they mentioned her poor customer service and teamwork skills and wrote “LOA” in the comments section when asked to explain on the form the difference in the ratings. Nonetheless, the managers denied that the plaintiff’s medical leave of absence affected their decision and claimed that the notation was simply to remind them to delay the date of her layoff. The depressed evaluation rating the plaintiff received after beginning her medical leave put her in the bottom six of the employees’ ranking and caused her to be selected for layoff.
In reversing the summary judgment which had been entered for the employer, the Court noted that the unique facts of this case created factual dispute on the plaintiff’s FMLA claims (for interference with her medical leave and retaliation for taking medical leave) which could only be resolved by a jury in that a jury could disbelieve the employer’s explanation and find it pretextual based on the circumstantial evidence that had been provided:
. . ..
In the second case, Schoonmaker v. Spartan Graphics Leasing, No. 09-1732 (6th Cir. 2010), the employer laid off the two oldest employees on the third shift (both over 55) and kept the third employee, age 29. One of the employees was admittedly laid off because she was less than a year from retirement. Even though the plaintiff had more seniority than the younger employee who was retained, and even though the younger employee had been disciplined in the prior year for poor attendance, management felt that he got along better with the two supervisors than the plaintiff did. Management also felt the younger employee was more productive, but never documented that belief.
The Company’s RIF policy favored retaining the plaintiff over the younger employee and provided:
Summary judgment was granted to the employer because the plaintiff could not show that she had been replaced, as the remaining, younger employee assumed her former duties in addition to continuing to perform his own regular duties. Nonetheless, the Court of Appeals recognized that the plaintiff might be able to show that she had been replaced if she could show that her qualifications were superior to the younger employee who had been retained. However, her subjective belief of superior performance and her admittedly better disciplinary history were insufficient to meet this prima facie burden. Moreover, although she would arguably be entitled to rely on statistical evidence to satisfy her burden (in that the two oldest employees of the three person department were laid off), the Court found the sample size to be too small to be statistically significant. While the district court believed that it would have been relevant if management had deliberately ignored the RIF policy; their ignorance of the policy was insufficient to meet the plaintiff’s burden of proof.
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.
In the first case, Cutcher v. KMart Corporation, No. 09-1145 (6th Cir. 2010), six employees were selected to be laid off from a particular store as part of a nationwide layoff. According to the Court’s opinion, the plaintiff was selected for the RIF a few weeks after beginning FMLA leave and her duties distributed among the remaining sales associates. In the selection process, the employer considered her most recent performance evaluation and then conducted an updated evaluation (measuring the same competencies as the annual evaluations and containing a space for additional comments). The plaintiff had received an “exceeds expectations” or “exceptional” overall evaluation rating in the prior three years and then began a six-week medical leave involving surgery a few days after her last performance evaluation. A few weeks into her medical leave, the employer announced the RIF and selected plaintiff and five other employees to be laid off.
The employer’s updated evaluation form prohibited managers from considering a medical leave of absence as a factor, and required the manager to specifically explain if the employee had been downgraded since the last annual evaluation. It also required managers to base the updated evaluations on objective, observable performance. Notwithstanding these instructions, the plaintiff’s managers downgraded her updated performance evaluation rating even though they admittedly could not identify any performance issues in the 20 days between her annual evaluation and the updated evaluation conducted for the RIF. Rather, they explained that they felt her prior evaluation had been inflated and she possessed undocumented poor customer service and teamwork skills. In addition, they mentioned her poor customer service and teamwork skills and wrote “LOA” in the comments section when asked to explain on the form the difference in the ratings. Nonetheless, the managers denied that the plaintiff’s medical leave of absence affected their decision and claimed that the notation was simply to remind them to delay the date of her layoff. The depressed evaluation rating the plaintiff received after beginning her medical leave put her in the bottom six of the employees’ ranking and caused her to be selected for layoff.
In reversing the summary judgment which had been entered for the employer, the Court noted that the unique facts of this case created factual dispute on the plaintiff’s FMLA claims (for interference with her medical leave and retaliation for taking medical leave) which could only be resolved by a jury in that a jury could disbelieve the employer’s explanation and find it pretextual based on the circumstantial evidence that had been provided:
The jury could also conclude that [Plaintiff’s] termination was based on her FMLA leave, because none of Kmart’s asserted reasons for her lower RIF appraisal scores were documented, and Kmart admitted that nothing in her performance changed during the twenty-day period between her last annual appraisal and the RIF appraisal. Although Kmart contends that variations between annual appraisal scores and the RIF appraisal scores were common, that [Plaintiff’s direct supervisor] inflated the annual appraisal scores, and that [Plaintiff’s] performance had been declining, a reasonable jury could reject Kmart’s contentions. Given [Plaintiff’s] prior annual appraisal scores, the minimal amount of time that passed between her most recent annual appraisal and the RIF appraisal, Kmart’s admission that [Plaintiff’s] performance did not change during that short period of time, the inclusion of the “LOA” notation on the Associate Performance Recap Form, and the lack of any documented evidence demonstrating a prior concern with her job performance, a jury could infer that her leave status impacted her RIF appraisal ratings, thus leading to her termination.
. . ..
[Plaintiff] also argues—and the jury could conclude—that the same circumstantial evidence supporting the causal connection between her FMLA leave and her termination demonstrates that Kmart’s proffered non-discriminatory reason was pretextual. Specifically, the following facts could show pretext: the temporal proximity between her leave and termination; the lack of documentation to corroborate her lower RIF appraisal scores; the lack of temporal proximity between the events that Kmart alleges justified her lower RIF appraisal scores and her termination; her documented favorable work history; the discrepancy between her prior annual appraisals and her RIF appraisal, and the “LOA” notation next to [Plaintiff’s] name on the Impacted Associates Form.
In the second case, Schoonmaker v. Spartan Graphics Leasing, No. 09-1732 (6th Cir. 2010), the employer laid off the two oldest employees on the third shift (both over 55) and kept the third employee, age 29. One of the employees was admittedly laid off because she was less than a year from retirement. Even though the plaintiff had more seniority than the younger employee who was retained, and even though the younger employee had been disciplined in the prior year for poor attendance, management felt that he got along better with the two supervisors than the plaintiff did. Management also felt the younger employee was more productive, but never documented that belief.
The Company’s RIF policy favored retaining the plaintiff over the younger employee and provided:
Business circumstances may result in a temporary or permanent reduction in the size of the work force. Making such decisions is not easy. However, the Company will attempt to identify employees who are the most qualified to perform the work available based on qualifications, productivity, attendance, general performance record and other factors the Company considers relevant in each case. When the Company considers these factors to be relatively equal, decisions will be guided by relative length of service.
Summary judgment was granted to the employer because the plaintiff could not show that she had been replaced, as the remaining, younger employee assumed her former duties in addition to continuing to perform his own regular duties. Nonetheless, the Court of Appeals recognized that the plaintiff might be able to show that she had been replaced if she could show that her qualifications were superior to the younger employee who had been retained. However, her subjective belief of superior performance and her admittedly better disciplinary history were insufficient to meet this prima facie burden. Moreover, although she would arguably be entitled to rely on statistical evidence to satisfy her burden (in that the two oldest employees of the three person department were laid off), the Court found the sample size to be too small to be statistically significant. While the district court believed that it would have been relevant if management had deliberately ignored the RIF policy; their ignorance of the policy was insufficient to meet the plaintiff’s burden of proof.
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.
Wednesday, January 27, 2010
EEOC Releases Statistics Showing Busy FY 2009 Which Favored Employers
Earlier this month, the EEOC released its Fiscal Year 2009 statistics which showed a slight decrease in the number of discrimination charges filed with the agency compared to the prior fiscal year. In terms of the type of allegations, 36% alleged race discrimination, 36% retaliation, 30% sex discrimination, 24% age discrimination and 23% disability discrimination.(Obviously, some Charges alleged more than one factor). Interesting, the EEOC disclosed that it dismissed over 60% of all charges filed after an investigation as lacking reasonable cause of discrimination. Almost 20% of Charges are closed administratively because the Charging Party ceases cooperating or could not be located, etc. Ten percent of cases were closed with settlement and almost 6% of cases resulted in a withdrawal of the Charge with benefits to the Charging Party. Only 4.5% of all charges filed were found to show probable cause of discrimination following an investigation. Nonetheless, the EEOC obtained almost $300M in benefits through settlement, mediation, and litigation for successful Charging Parties, an increase over FY 2008.
Insomniacs can read more about the statistics at http://www.eeoc.gov/eeoc/newsroom/release/1-6-10.cfm.
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.
Insomniacs can read more about the statistics at http://www.eeoc.gov/eeoc/newsroom/release/1-6-10.cfm.
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.
Monday, January 25, 2010
Franklin County Court: Summary Judgment Reversed When Peer Review Privilege Might Not Apply to Protect Hospital
Last month, the Franklin County Court of Appeals reversed summary judgment in favor of Mount Carmel Hospital on a wrongful discharge claim brought by an Emergency Room physician on the grounds that the trial court improperly assumed that relevant evidence which the hospital refused to produce during discovery was protected by Ohio’s peer review privilege.
Thus, documents created by a peer review committee or exclusively for a peer review committee would be protected by the privilege. However, the Court concluded that a hospital could not shield documents it created itself by simply circulating them among the peer review committee.
Ultimately, the Court concluded that the trial court had failed to analyze whether the withheld documents were created by the hospital or the peer review committee and whether they would be covered by the privilege. “Absent evidence that the requested documents were created by and/or exclusively for a peer review committee, or generated by an original source and produced or presented to a peer review committee, the party asserting the R.C. 2305.252 privilege has not met its burden.” Therefore, the case was remanded to the trial court to evaluate the hospital’s privilege claim and to permit the plaintiff physician to complete discovery and revise his response to the hospital’s summary judgment motion if the hospital ultimately produced additional relevant evidence.
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.
Thus, documents created by a peer review committee or exclusively for a peer review committee would be protected by the privilege. However, the Court concluded that a hospital could not shield documents it created itself by simply circulating them among the peer review committee.
If a health care entity itself is the original source, it cannot shield documents from disclosure just by circulating them during peer review proceedings. In other words, a health care entity must produce documents responsive to a document request if it created the document, the document was not generated by and/or exclusively for a peer review committee, and the document is available outside of any peer review committees' records (i.e., employees, affiliates, officers, or directors of the health care entity can access the document for non-peer review purposes).
Ultimately, the Court concluded that the trial court had failed to analyze whether the withheld documents were created by the hospital or the peer review committee and whether they would be covered by the privilege. “Absent evidence that the requested documents were created by and/or exclusively for a peer review committee, or generated by an original source and produced or presented to a peer review committee, the party asserting the R.C. 2305.252 privilege has not met its burden.” Therefore, the case was remanded to the trial court to evaluate the hospital’s privilege claim and to permit the plaintiff physician to complete discovery and revise his response to the hospital’s summary judgment motion if the hospital ultimately produced additional relevant evidence.
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.
Wednesday, January 13, 2010
Ohio Supreme Court Hears Arguments On Mandatory Maternity Leave
This morning, the Ohio Supreme Court heard oral argument on whether the Ohio Civil Rights Commission exceeded its authority by requiring Ohio employers to provide a reasonable amount of maternity leave to new employees even when similar leaves are not provided to new male employees. In particular, an employee was fired by an Ohio nursing home when she required maternity leave before she had been employed at least one year as required by the employer's uniformly applied leave policy. No employees are given a leave of absence under the policy until they have been employed at least one year.
Certain provisions of the Ohio Civil Rights Act mirrors the federal Pregnancy Discrimination Act, which prohibits discriminating against women on account of pregnancy. There is no provision under the federal or state statute explicitly requiring a leave of absence for female employees that is not also provided to male employees; it merely prohibits discrimination. Some courts have ruled that the PDA does not require maternity leave unless males are given similar leaves of absence; thus the FMLA was created. The OCRC determined, however, that women would never be able to keep jobs if they got pregnant under such policies and has required Ohio employers to provide a reasonable amount of maternity leave even if they did not otherwise provide any leaves to other employees. In doing so, the OCRC relies on a single federal court decision.
An argument was made that the OCRC exceeded the Ohio constitution by creating a rule which lacks explicit statutory support. To the extent that the OCRC is attempting to create public policy, the argument goes, that should be left to the Ohio General Assembly. Citation was made to three other states which have enacted such laws.
The Attorney General's office also tried to draw an analogy to the reasonable accommodation provisions of the ADA and Title VII's religious discrimination clause. However, unlike the PDA, those statutes explicitly require employers to provide a reasonable accommodation. Thus, merely because an employer is required by statute to provide a leave as a reasonable religious or disability accommodation does not mean that the PDA (or corresponding Ohio statute) requires the same in the absence of similar statutory language.
The Ohio Supreme Court was provided with an earlier opportunity this year to address whether the Ohio statute requires reasonable accommodation of lactating mothers in Allen v. Totes/Isotoner Corp, but it declined to address this issue at that time.
Insomniacs can watch the oral argument in Nursing Care Management of America, Inc., d.b.a. Pataskala Oaks Care Center v. Ohio Civil Rights Commission, No. 2009-0756 here or on the PBS Ohio Channel.
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.
Certain provisions of the Ohio Civil Rights Act mirrors the federal Pregnancy Discrimination Act, which prohibits discriminating against women on account of pregnancy. There is no provision under the federal or state statute explicitly requiring a leave of absence for female employees that is not also provided to male employees; it merely prohibits discrimination. Some courts have ruled that the PDA does not require maternity leave unless males are given similar leaves of absence; thus the FMLA was created. The OCRC determined, however, that women would never be able to keep jobs if they got pregnant under such policies and has required Ohio employers to provide a reasonable amount of maternity leave even if they did not otherwise provide any leaves to other employees. In doing so, the OCRC relies on a single federal court decision.
An argument was made that the OCRC exceeded the Ohio constitution by creating a rule which lacks explicit statutory support. To the extent that the OCRC is attempting to create public policy, the argument goes, that should be left to the Ohio General Assembly. Citation was made to three other states which have enacted such laws.
The Attorney General's office also tried to draw an analogy to the reasonable accommodation provisions of the ADA and Title VII's religious discrimination clause. However, unlike the PDA, those statutes explicitly require employers to provide a reasonable accommodation. Thus, merely because an employer is required by statute to provide a leave as a reasonable religious or disability accommodation does not mean that the PDA (or corresponding Ohio statute) requires the same in the absence of similar statutory language.
The Ohio Supreme Court was provided with an earlier opportunity this year to address whether the Ohio statute requires reasonable accommodation of lactating mothers in Allen v. Totes/Isotoner Corp, but it declined to address this issue at that time.
Insomniacs can watch the oral argument in Nursing Care Management of America, Inc., d.b.a. Pataskala Oaks Care Center v. Ohio Civil Rights Commission, No. 2009-0756 here or on the PBS Ohio Channel.
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.
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