Monday, December 29, 2014

Ohio Supreme Court Decides Whistleblower Statute Does Not Protect Governmental Employees Who Report Third-Party Violations.

Ohio's general "whistleblower" statute, R.C. 4113.52, protects employees from discipline, including termination, if they discover and report suspected felonies, among other things, by their employer during the course of their employment. What if, however, a local governmental  employee discovers and reports felonies by a company over which the local government has jurisdiction? Is the reporting employee a whistleblower under R.C. 4113.52?  No is the answer according to the Ohio Supreme Court. The issue is whether the employee reported crimes by his own employer, not by a third-party.  The plaintiff’s wrongful termination in violation of public policy claim was not addressed by the Court. The appellate court had reversed summary judgment for the employer on the whistleblower claim but (incorrectly, in my opinion) affirmed summary judgment on the wrongful termination claim based on a failure to satisfy the jeopardy element, on the grounds that the plaintiff had an adequate remedy under the whistleblower statute. The Ohio Supreme Court chose not to accept an appeal from the court of appeals' wrongful termination decision.

NLRB Issues Complaints Against McDonald's.

Remember the nationwide protests by McDonald’s fast food employee in the last few years? Apparently, McDonald’s took adverse employment actions against many employees who participated in these protests and other actions aimed at improving their wages and working conditions. On December 19, 2014, the National Labor Relations Board issued complaints against McDonald’s franchisees and their franchisor, McDonald’s USA, LLC. Significantly, the NLRB found that franchisees and McDonald’s USA, LLC are joint employers due to the degree of control exerted by the latter control over local franchisee operations. The NLRB had for years decided that franchises could only be labeled joint employers if they set wages and employed workers.  NLRB Page.

Saturday, December 27, 2014

Failure To Report Racially Hostile Work Environment Dooms Claim.

Despite a clear case of a racially hostile work environment, plaintiff’s claim was dismissed on summary judgment where he failed to utilize the remedies contained in an employee handbook to address the situation.

Work Breaks Of Short Duration Count Towards Overtime.

         Plaintiffs were logged out of the employer’s time-keeping system when taking short breaks. The Fair Labor Standards Act requires employers to compensate employees for all “hours worked.” 29 C.F.R. § 785.18 (1961) provides that rest periods of 5 to about 20 minutes constitute “hours worked.”  See also Chapter 31a01(a) of the Department of Labor’s (“DOL”) Field Operations Handbook; DOL Wage and Hour Division Opinion Letter (Dec. 2, 1996), 1996 WL 1005233. But see Chapter 31a01(c) of the DOL Field Operations Handbook (Dec. 15, 2000)(three prong test for determining when unauthorized extensions of approved breaks are not counted as hours worked). Interpreting these various provisions, the Court held that all rest periods of short duration must be compensated except for breast milk expression breaks (29 U.S.C. § 207(r)) and in the narrow circumstances specified in Chapter 31a01(c) of the Field Operations Handbook.

Friday, December 26, 2014

Plaintiff Survives Summary Judgment In USERRA Case.

A plaintiff has survived summary judgment in a lawsuit brought under the Uniformed Service Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4311.  Plaintiff was a reservist with the United States Marine Corps. In September 2012, the defendant employer promoted plaintiff to a supervisory position. Following his promotion plaintiff’s superiors made comments critical of his time off due to his military obligations, according to the deposition testimony of a co-plaintiff.  At a meeting in December 2012 an upcoming layoff was discussed among managers. Plaintiff was chosen for layoff and his last day of employment was later in December. Plaintiff was on active reserve duty between the time of his promotion in September and his termination in December.
The court noted that in a USERRA case a plaintiff must demonstrate that military service was a motivating factor in the termination. In a reduction in force case a plaintiff must also come forward with additional direct, circumstantial or statistical evidence indicating that the employer singled him for discharge for impermissible reasons. The employer must then produce evidence to show that it would have made the decision anyway, for a valid reason. In this case the court found that plaintiff had met his initial burden of demonstrating that he was singled out for discharge based upon his military status, based on evidence that plaintiff’s work issues surfaced only after he had performed reservist duties . The court then determined that reasonable minds could differ on whether plaintiff was terminated for valid performance reasons or singled out because of his military status.

Attorney-Client Privilege Waived, Invoices and Fee Agreement Discoverable.

Plaintiff testified at deposition that his father-in-law was present during all of his meeting with counsel and that plaintiff forwarded a fee arrangement and progress invoices received from his counsel to his father-in-law.  The Court held that the attorney-client privilege was waived because the presence of plaintiff’s father-in-law was for support purposes as opposed to being necessary to facilitate the attorney-client relationship. The Court also decided that federal privilege law applied because plaintiff invokes federal question jurisdiction, notwithstanding plaintiff’s supplemental state law claim under Ohio Revised Code 4112.02. Moreover, the Court held that the the fee arrangement and invoices were discoverable.

Thursday, December 25, 2014

Exhaustion of Remedies Requirement of R.C. 4112.14(C) Does Not Apply to Disability Discrimination Claims.
             The Ohio Eleventh District Court of Appeals has decided that disability discrimination plaintiffs do not have an obligation to exhaust available administrative remedies such as arbitration under a collective bargaining agreement. Plaintiff Worley, a teacher, sued Defendant Newton Falls School for disability discrimination under Ohio Revised Code 4112.02. Defendant raised R.C. 4112.14(C), arguing that plaintiff ‘s claim was barred because she had failed to arbitrate her discharge pursuant to a collective bargaining agreement. Plaintiff countered that  R.C. 4112.14(C) applied only to age discrimination claims.
             R.C. 4112.14(C) states:
The cause of action described in division (B) of this section [for age discrimination] and any remedies available pursuant to sections 4112.01 to 4112.11 of the Revised Code shall not be available in the case of discharges where the employee has available to the employee the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause.
             The bolded language suggests the argument made by Defendant – exhaustion is required of not only age discrimination plaintiff but all other plaintiffs bringing suit to enforce their rights under R.C. 4112.02. That is indeed what R.C. 4112.14(C) appears to say. Fortunately for plaintiffs that is not what the majority of courts have decided. The central theme running through these cases is the plaintiff employment lawyers’ dear friend, R.C. 4112.99. Thus, read these cases: Luginbihl v. Milcor Ltd. Partnership, 3rd Dist. Allen No. 1-01-162, 2002-Ohio-2188 ("R.C. 4112.14(C) is not applicable to the case at bar nor to any non-age discrimination claim brought pursuant to R.C. 4112.99.*** "[n]owhere in the language or the interpretation of the statute could it be said that R.C. 4112.14(C) applies to actions brought pursuant to R.C. 4112.99."); Braud v. Cuyahoga Cty. Career Ctr, N.D. Ohio No. 1:06 CV 1059, 2007 U.S. Dist. LEXIS 22526, 16 (Mar. 27, 2007) ("[t]here is no requirement that an administrative process be followed *** prior to bringing suit under §§ 4112.02 and 4112.99 for handicap discrimination"); Dworning v. Euclid, 119 Ohio St.3d 83, 2008-Ohio-3318, 892 N.E.2d 420 ("an individual [may] file a civil action to remedy discrimination without having invoked the administrative remedies available through the OCRC [and] "the filing of a charge of discrimination with the OCRC does not preclude a person from filing a civil action under R.C. 4112.99. * * * [A] public employee alleging employment discrimination in violation of R.C. Chapter 4112 need not exhaust the administrative remedy of appeal to a civil service commission before pursuing the civil action allowed in R.C. 4112.99.") See also Elek v. Huntington Natl. Bank, 60 Ohio St.3d 135, 137, 573 N.E.2d 1056 (1991); Pingle v. Richmond Hts. Local School Dist. Bd. of Ed., N.D. Ohio No. 1:12-cv-02892, 2013 U.S. Dist. LEXIS 141194, 14 (Sept. 30, 2013) ("§ 4112.14(C) is properly limited to age discrimination claims, as its statutory history and placement in the 'age discrimination by employers' statute would suggest") Contra Hopkins v. United Parcel Serv., Inc., 1st Dist. Hamilton No. C-990392, 2000 Ohio App. LEXIS 443 (Feb. 11, 2000) ("[t]he plain language of [R.C. 4112.14(C)] indicates the General Assembly's intent to bar civil actions for age discrimination as well as 'other remedies available under this chapter' when the employee has the ability to arbitrate his claims.")
Worley v. Newton Falls Exempted Village School Board of Education, 2014-Ohio-5385, 2014-T-0024 December 8, 2014 Eleventh District, Trumbull