Ohio Supreme Court Finally Puts Nail in Dohme Coffin

This morning, the Ohio Supreme Court finally reversed the Dohme case on the merits, finding that that the plaintiff had failed to allege the violation of any state or federal statute, regulation, rule or decision when he was fired for insubordination after complaining to an insurance adjuster (despite explicit instructions to the contrary) about certain fire alarm inspection reports being missing as part of a supposed scheme to set him up to be fired. Dohme v. Eurand America, Inc., 2011-Ohio-4609. As reported here in June and earlier in February 2008, “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 due to an allegedly missing document about fire alarm inspections. The Court resolved the dispute on the very narrow grounds of the “clarity” element of a wrongful discharge claim. Because the plaintiff had failed to identify any law which permitted, encouraged or required him to express his concerns to the adjuster, the employer was perfectly justified to forbid unauthorized conversations with the adjuster and to fire the plaintiff for insubordination when he disregarded those explicit instructions. Vague concerns about workplace safety are insufficient to support a claim for wrongful discharge. Rather, citation to some legal authority is required:

[T]o satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee must articulate a clear public policy by citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law. A general reference to workplace safety is insufficient to meet the clarity requirement.

Interestingly, the Court also noted that it was inappropriate for a court to sua sponte fill in a supposed public policy if the plaintiff fails to identify such a policy or law.

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.

Sixth Circuit: Volunteer Firefighters Can Be Title VII Employees

Earlier this month, the Sixth Circuit reversed a summary judgment which had been entered in favor of a volunteer fire department in Ohio. Bryson v. Middlefield Volunteer Fire Department, No. 10-3055 (6th Cir. 9/2/11). In that case, the plaintiff served as a volunteer firefighter and then was also hired as the department’s administrative assistant. She alleged that the former fire chief sexually harassed her and then constructively discharged her in retaliation for her complaints. She filed a Charge of Discrimination with the EEOC and OCRC, which found probable cause of harassment, but not retaliation. She then filed suit and the department moved for summary judgment on the basis that it did not employ 15 employees as required by Title VII. In particular, it denied that the volunteer firefighters were employees under Title VII. Although the firefighters were provided with insurance coverage and gift certificates, were covered by workers compensation and were provided with other benefits (such as access to department facilities and training, etc.), the trial court agreed that the renumeration received by the firefighters was not substantial enough to convert them from non-covered volunteers to covered employees. The Sixth Circuit reversed.

The Sixth Circuit concluded that whether an individual was covered by Title VII was governed by the common law of agency. The amount and type of compensation received by the individual was merely one factor to be considered and should not be given greater weight by making it an independent condition precedent to conducting the common law agency analysis. Because the trial court failed to consider all of the agency factors and then weigh them, the Court reversed so that the court could apply the proper analysis on remand.

Whether an individual is an “employee” for Title VII purposes arises in a number of contexts, including non-profits, shareholders, trustees, etc.

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.

Sixth Circuit Finds Arbitration Policy is Unenforceable Without Proof Employee Was Given Notice and Knew of It

This morning, the Sixth Circuit reversed an order to compel arbitration based on a lack of evidence that the employee knew about the arbitration policy. Hergenreder v. Bickford Senior Living Group, LLC., No. 10-1474 (6th Cir. 8/31/11). In that case, the plaintiff was hired as a nurse in October 2006 and soon thereafter required a medical leave of absence following a cancer diagnosis. When she attempted to return to work in December 2006, she was told there was no job for her and was notified that she had been fired (with the ability of being rehired) in January 2007 because she had not qualified for a medical leave of absence so soon after being hired. When she filed suit under the ADA, the employer moved to compel arbitration even though she had never signed an arbitration agreement. The employer could not rely on any arbitration provisions in the employee handbook because it contained numerous disclaimers that it was not a binding contract. The employer’s arbitration policy was purportedly distributed to all employees, but there was no evidence that it had been specifically distributed to plaintiff during the application process or after being hired. The plaintiff had never signed it and denied that she had ever seen it before the litigation. The Court, therefore concluded that she could not have agreed to arbitrate her claims and remanded the matter back to the District Court.

The Federal Arbitration Act only requires arbitration agreements to be in writing, but does not require them to be signed. However, both parties must still be aware of the terms of the agreement and agree to them. The employer argued that a reference to the dispute resolution policy in the employee handbook put the employee on notice of the arbitration policy and agreement. However, the Court disagreed because the handbook was not a contract and there were too few details (let alone no mention of the word arbitration) in the employee handbook to have put any employee on notice that s/he was agreeing to arbitrate his or her claims.

This statement says nothing about arbitration, and it says nothing that would indicate to Hergenreder that accepting or continuing her job with Bickford would constitute acceptance. Indeed, it is incorrect to conflate the fact that Hergenreder knew generally of the DRP with the notion that she knew of the arbitration language—and Bickford’s desire to create an arbitration agreement—contained within the DRP. Were Hergenreder required to read, or even notified of the importance of reading, the DRP, the analysis here might be different. But this court’s inquiry is focused on whether there is an objective manifestation of intent by Bickford to enter into an agreement with (and invite acceptance by) Hergenreder, and we are not convinced that there is any such manifestation made by Bickford in the record in this case.

In addition, even if the policy constituted an offer of an arbitration agreement, there was no evidence that the plaintiff’s continued employment constituted acceptance of that offer because she had never been informed that continuing employment constituted acceptance of the arbitration agreement.

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.

NLRB to Require Employers to Post Notice of Employee-Union Rights

[New Editor's Note: On December 23, 2011, the NLRB announced again that it was postponing the implementation of the new posting requirement from November 14 until April 30, 2012. In April 2012, the NLRB announced that it was postponing the requirement pending resolution of an appeal to the D.C. Circuit Court of Appeals.]

[Editor's Note: As expected, the final rule was published in the Federal Register on August 30, 2011. The poster has been available on the NLRB website since September 14, 2011.]

On Tuesday, Federal Register is expected to contain a rule adopted on Thursday by the NLRB requiring all employers subject to the National Labor Relations Act (i.e., which does not include states, federal government, unions, political subdivisions, employers subject to the Railway Labor Act, etc.) to post a notice in a conspicuous place of employee rights under the NLRA. A copy of the form notice eventually will be available on the NLRB website. Government contractors may continue to post the notice required by the DOL instead of the NLRB notice. When the entire workforce is not proficient in reading English, a separate notice must be posted in any language spoken by 20% of the workforce. The rule will take effect 75 days after it has been published in the Federal Register (i.e., November 14) and will be codified at 29 C.F.R. Part 104.

In addition to posting the required notice physically, "an employer must also post the required notice on an intranet or internet site if the employer customarily communicates with its employees about personnel rules or policies by such means. An employer that customarily posts notices to employees about personnel rules or policies on an intranet or internet site will satisfy the electronic posting requirement by displaying prominently – i.e., no less prominently than other notices to employees -- on such a site either an exact copy of the poster, downloaded from the Board's Web site, or a link to the Board's Web site that contains the poster. The link to the Board's Web site must read, "Employee Rights under the National Labor Relations Act."

The rationale for the posting requirement is that most employees are not aware of their rights under the NLRA. This has been attributed to the declining union membership, a failure of high school civics teachers, and greater number of immigrant employees. The NLRB refused to include on its poster all employee rights, such as the right to vote to decertify a union, etc.

Employers who fail to post the notice can face three adverse consequences. The NLRB will treat the posting failure as an unfair labor practice (subject to a cease and desist order) and may treat it as evidence of anti-union animus (on other allegations). In addition, the NLRB may toll the six-month limitations period for an employee to file an ULP Charge for the period during which the employer failed to post the employees' notice of rights.

Not all small and/or non-profit employers are subject to the NLRA and should consult with their attorney to confirm whether they are required to post the NLRB notice.

The new rule is already being challenged as beyond the statutory authority of the NLRB. The text of the notice has been subject to some criticism because the listed rules are not equally applicable to all employees as stated because of differences in how the law is applied in different regions and industries. The text provides as follows:

EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, andabout the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.



• Form, join or assist a union.
  


• Bargain collectively through representatives of employees' own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.



• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
  


• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.



• Strike and picket, depending on the purpose or means of the strike or the picketing.
  


• Choose not to do any of these activities, including joining or remaining a member of a union.
  

Under the NLRA, it is illegal for your employer to:

• Prohibit you from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in nonwork areas, such as parking lots or break rooms.


• Question you about your union support or activities in a manner that discourages you from engaging in that activity.


• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.


• Threaten to close your workplace if workers choose a union to represent them.


• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.


• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.


• Spy on or videotape peaceful union activities and gatherings or pretend to do so.
  

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

• Threaten or coerce you in order to gain your support for the union.


• Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.


• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
  


• Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
  


• Take adverse action against you because you have not joined or do not support the union.
  


• If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.
  

Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency's Web site: http://www.nlrb.gov. You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired. If you do not speak or understand English well, you may obtain a translation of this notice from the NLRB's Web site or by calling the toll-free numbers listed above.

The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).

This is an official Government Notice and must not be defaced by anyone.

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 Court of Appeals: No Rehire Recommendation is Protected Opinion, Not Defamation

Last week, the Cuyahoga County Court of Appeals affirmed summary judgment in favor of University Hospitals arising from, among other things, a no-hire recommendation placed in the plaintiff’s personnel file following her voluntary resignation. Byrne v. Univ. Hosps., 2011-Ohio-4110. The Court found the statement to be too vague to constitute a false statement of fact about the plaintiff’s job performance because it was based purely on her supervisor’s subjective overall opinion. Therefore, the plaintiff could not show that it was defamatory, and it was also protected opinion. The Court also found that it was not sufficiently publicized to place the plaintiff in a false light and that there could not be any tortious interference with contract when other departments and locations of the hospital relied on the no-hire recommendation when considering subsequent applications for employment.

According to the Court’s decision, the plaintiff had been promoted into a position for which she had not applied and which she was ultimately uncomfortable in performing. After two months, she requested and received a demotion back to a staff position. Shortly thereafter, she voluntarily resigned and obtained another job. In filling out the exit interview paperwork, her supervisor marked her personnel file as “not recommended for rehire” because the plaintiff had raised invalid complaints about her compensation, had not tried sufficiently to adopt new skills for her supervisory position before requesting a demotion two months after her promotion, and had taken off a significant amount of paid personal time after her promotion. None of these reasons were indicated anywhere in the personnel file.

After the plaintiff was subsequently rejected for three other positions at the hospital, she discovered the no-rehire recommendation and brought suit for defamation, false light and tortious interference with contract. The trial court granted the employer summary judgment on all three claims. The Court of Appeals affirmed.

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.