The Future of President Obama's Overtime Pay Reforms

Interesting article regarding what President-Elect Trump might do to gut President Obama's overtime pay reform efforts.

Ohio Makes It Easier To Obtain Public Records

The Columbus Dispatch reports that the Ohio General Assembly has passed legislation intended to streamline fights with government over public record requests. The law applies to all levels and types of government in Ohio. The article reports:

"On Sept. 28, the Ohio Court of Claims will begin accepting complaints on the refusal to release records by government at all levels, from townships to the state. The law *** will send complaints to a mediator who will work with citizens and government officials in an attempt to reach a resolution. If no agreement is reached, a special master will rule within seven days whether government was legally correct in denying a records request or broke the law and must hand over the records. *** The appeals process requires but a complaint form, a $25 filing fee and accompanying copies of the records requests and government denials."

Public record requests area great way to gather information before suing a governmental entity. This new law should help make it easier to obtain such information.

Employer's Religious Rights Win Out Over Transgendering Employee's RIghts

Anthony Stephens began working as a Funeral director for R.G. & G.R. Harris Funeral Homes in 2007. Six years later Stephens gave the funeral home a letter stating:

"Dear Friends and Co-Workers:

"What I must tell you is very difficult for me and is taking all the courage I can muster. I am writing this both to inform you of a significant change in my life and to ask for your patience, understanding, and support, which I would treasure greatly. . ..I have a gender identity disorder that I have struggled with my entire life. I have managed to hide it very well all these years . . ..

"I have been in therapy for nearly four years now and have been diagnosed as a transsexual. I have decided to become the person that my mind already is. Toward that end, I intend to have sex reassignment surgery. The first step I must take is to live and work full-time as a woman for one year. At the end of my vacation on August 26, 2013, I will return to work as my true self, Amiee Australia Stephens, in appropriate business attire. . .. It is my wish that I can continue my work at R.G. & G. R. Harris Funeral Homes doing what I have always done, which is my best!"

There was no question that Stephens intended to abide by the funeral home’s dress code for female funeral directors. After receiving the letter the business owner, Thomas Rost, decided to fire Stephens. There was no dispute that Rost based his decision on sincerely held religious beliefs.

The legal issue was whether the federal Religious Freedom Restoration Act (“RFRA”) trumped Stephens’ rights under Title VII, the federal anti-discrimination in employment law. Title VII prohibits employers from discharging or otherwise discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s race, color, religion, sex, or national origin.” The U.S. Supreme Court has recognized that sex discrimination may manifest itself in stereotypical notions as to how women and men should dress and present themselves in the workplace. It’s referred to as sex-stereotyping. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The goal of the sex-stereotyping theory of sex discrimination is that “gender” “be irrelevant” with respect to the terms and conditions of employment and to employment decisions. Id.

The funeral home based its RFRA defense on the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). The majority in Hobby Lobby held:

“[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S.C. § 2000bb(a)(2); see also § 2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” § 2000bb–1(a). If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” § 2000bb–1(b)." Id. at 2761.

The district court applied the following analysis: (1) whether the law at issue substantially burdens the Funeral Home’s exercise of religion (Hobby Lobby, 134 S.Ct. at 2775); (2) if so, whether the Government can meet its burden of showing that application of the burden “to the person is (a) in furtherance of a compelling governmental interest; and (b) the least restrictive means of furthering that compelling governmental interest. Hobby Lobby, 134 S.Ct. at 2761.

Finding that Title VII substantially burdened the funeral home’s exercise of religion The court next assumed that the EEOC met its first burden of showing the anti-discrimination provisions in Title VII furthered a compelling governmental interest and, therefore, proceeded to the least restrictive means burden analysis. The court decided that the EEOC failed to satisfy this burden. The court’s analysis seems to hinge on a question it asked: “[C]ouldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here?” The funeral home’s owner, Mr. Rost, had testified in deposition that female funeral director’s could acceptably wear a business pants suit. Stephens agreed. To the court the issue was whether Stephens had a right to comply with the funeral home’s dress code (skirt and matching jacket) and decided she did not if she could be accommodated by being allowed to wear a business pants suit -- less restrictive means of enforcing Title VII.

Consequently, the court held that the funeral home was entitled to an RFRA exemption from Title VII. The EEOC has thirty days to appeal the decision to the Sixth Circuit Court of Appeals. Given its straightforward and undisputed facts, this is an excellent case for the Supreme Court to revisit its decision in Hobby Lobby in order to provide guidance on what is a re-occurring issue.

The case is EEOC v. RG & GR Harris Funeral Home, Inc. (E.D. Mich., Aug. 19, 2016).

Court Decides LGBT Discrimination is Lawful

Kimberly Hively sued Ivy Tech Community College claiming she was not promoted because of her sexual orientation. She based her claim on Title VII of the 1964 Civil Rights Act, arguing that employment discrimination against lesbians should be prohibited under Title VII. 

Hively of course is correct -- such discrimination should be unlawful. Title VII, however, is limited to discrimination based on race, color, national origin, sex or religion. Predictably the federal Seventh Circuit Court of Appeals decided that Hively's claim went "beyond the scope" of the statute. If Title VII is to apply to the LGBT community only Congress or the Supreme Court can make it happen.

Discrimination against gays, lesbians and others with different sexual make-ups should be illegal -- Hively was right about that. This won't happen without legislative action. Sad but true. 

The case is Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. 2016).

Police Shooting of a Non-Threatening Suspect Following A Car Chase Gives Rise to Viable Civil RIghts Case

Suing the police is a difficult endeavor because the qualified immunity doctrine shields government officials from liability for their exercise of discretion, unless their actions violate clearly established rights. Most civil rights cases against police officers fail for this reason. Moreover, after a trial court decides the qualified immunity question the case is immediately appealable. This means that years can go by before the plaintiff can even begin to engage in discovery on the merits, much less get a trial.

Sometimes though the evidence demonstrates a clear case under 42 U.S.C. section 1983, the applicable civil rights statute. For example, police officers who fire rounds into a suspect's vehicle when the chase ends but who have no reason to believe they are threatened are not going to be entitled to qualified immunity. That's what happened in Thompson v. City of Lebanon, Case No. 14-5711 (6th Cir., July 26, 2016). The police in that case killed the suspect.

Thompson's case merely survived a qualified immunity challenge. It took more than six years from the date of the incident to get a ruling from the court of appeals. The case now goes back to the trial court for further proceedings, assuming the defendants do not ask the U.S. Supreme Court to intervene. Justice delayed is justice denied. This case is prime example.

Workers' Compensation Retaliation Claim Does Not Require Proof Of A Workplace Injury

Following his termination Michael Onderko sued his former employer, Sierra Lobo, Inc. for workers' compensation retaliatory discharge under Ohio Revised Code 4123.90. The employer argued that Onderko's injury did not happen at work and that it terminated him for his “deceptive” attempt to obtain workers’ compensation benefits. The trial court threw out the claim because Onderko failed to prove his injury occurred at work. The Ohio Supreme Court upheld the court of appeals' reversal. The law in Ohio is now clear that retaliatory discharge under section 4123.90 does not require a showing that the plaintiff suffered a workplace injury. The court further held that a failure to appeal the denial of a workers’ compensation claim does not preclude a retaliatory discharge claim under section 4123.90.

The decision makes sense. The gravamen of a workers' compensation retaliatory discharge claim is retribution for the filing of a claim. The employee's entitlement to workers' compensation benefits is irrelevant. What matters is the employer's motivation for the discharge. Thus, the employer who decides to terminate an employee because of a workers' compensation filing is liable under section 4123.90, regardless of the employee's entitlement to benefits under the workers' compensation system.

You can read the Ohio Supreme Court's decision here:  Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027 (July 21, 2016).

From the Ohio State Bar Association:

Overtime pay is changing: What Is Changing

The U.S. Department of Labor has posted its final overtime rule. The Final Rule updates the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt, in particular it:

Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker); and
Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004)
Automatic Updates and Salary Basis Test

Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.
Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.
Effective Date

The new rule takes effect Dec. 1, 2016. The initial increases to the standard salary level (from $455 to $913 per week) and HCE total annual compensation requirement (from $100,000 to $134,004 per year) will be effective on that date. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.

Republicans Discriminate Against LGBT Americans

On July 21, 2014 President Obama signed an Executive Order prohibiting discrimination against Americans working for companies doing business with the federal government based on sexual orientation and gender identity. What a common sense decision. Why should employers be permitted to fire a fellow American because they are gay or because of their gender identity? There is no excuse for employment discrimination, period. Sure, employers should be permitted to "discriminate" between employees based on work quality or production, but because of who they are? Please.

Leave it to our current Republican Congress to authorize discrimination against people because of their sexual orientation and identity. On April 29, 2016, the Republican-controlled House Armed Services Committee voted to allow such discrimination. Why stop there? Why not not approve discrimination based on religion, color or any other trait?

We don't need bigots in Congress. Vote a straight (no pun intended) Democratic ticket in November.

Sixth Circuit Decides Hybrid § 301 Fair Representation Claim

Chillicothe Telephone Company terminated repair technician Jason Blesedell from his job of sixteen years for falsifying a timecard and impersonating a customer in telephone calls to the company. Blesedell had reported working on buried cables for four hours in the afternoon when work orders did not exist for that work and his GPS showed he had gone home early. The company met with Blesedell and his union representative to discuss the discrepancy. Following the meeting Blesedell called in and asked a dispatcher to change a work ticket to correspond to the story he had given the company at the meeting. The company believed that Blesedell made additional calls posing as a customer in order to manufacture evidence to address the company’s suspicions. Following his termination Blesedell filed a grievance but the union decided not to pursue arbitration, primarily because Blesedell’s version of events was not credible and conflicted with the evidence.

Blesedell filed a hybrid § 301/fair-representation claim, alleging the company breached the collective bargaining agreement in violation of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, by discharging Blesedell without just cause, and that the union did not fairly represent Blesedell in the grievance process.

This case is a prototypical hybrid § 301 case. Hybrid claims require proof of both breach of the union’s duty of fair representation and breach of the collective bargaining agreement by the employer. Employees may prove breach of the union’s duty by showing that the union’s actions or omissions during the grievance process were arbitrary, discriminatory, or in bad faith. Arbitrariness, discrimination, and bad faith each provides a separate route by which a plaintiff may prove breach. In addition to proving arbitrary, discriminatory, or bad-faith conduct, a hybrid-claim plaintiff must prove that a union’s actions or omissions “more than likely affected” the outcome of the grievance procedure.  Because a hybrid claim requires proof of both breach of the union’s duty and breach of the collective bargaining agreement by the employer, the entire claim fails absent a finding that the union breached its duty of fair representation.

A union acts arbitrarily only if its conduct “is so far outside a wide range of reasonableness as to be irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991). The duty of fair representation requires a union to undertake a reasonable investigation to defend a union member, not an error-free one. Here, the union investigated the facts surrounding the grounds for termination and found that the termination would not be overturned through arbitration. Moreover, the court found, none of the union’s alleged failures in the investigation would have affected the outcome of Blesedell’s grievance.

The moral of the story for employees is simple – do your job every day and don’t lie to your employer.