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.

"Ban the Box" to Become the Law for Federal Employers

Later today in Newark, New Jersey President Obama will announce an Executive Order prohibiting questions about criminal history on federal job applications. The announcement comes after years of nationwide lobbying by the "ban the box" movement. The Executive Order is geared toward giving people convicted of crimes a chance to land a job.

It's no secret that most employers reject job applicants who reveal a criminal history on a job application. Prohibiting criminal history questions on an application will at least keep people in the running for a job. Employers will still be permitted to run background checks. There are no laws forbidding employers to base hiring decisions on background checks, so the ban the box order may not result in more employment for people with a crime on their record. It will, however, increase their employment opportunities. It remains up to the individual to demonstrate that despite their history they have experience and skills that make them the most qualified applicant.

To help convicts get a job the State of Ohio created Certificates of Qualification for Employment ("CQE"). Ohio employers who hire a CQE holder are protected from lawsuits arising from conduct by the holder. Getting sued is often a reason why many employers do not want to hire people with a criminal history. Read more about the process of obtaining a CQE here.

FMLA, No-Fault Attendance Policies and the Statute of Limitations

          A recent case out of the federal Seventh Circuit Court of Appeals shows the danger of waiting to assert FMLA time-off rights. In Barrett v. Ill. Dep't of Corrs., unreported, Case No. 13-2833 (7th Cir., Oct. 20, 2015), plaintiff's employer had a no-fault attendance policy allowing 12 absences before termination. The plaintiff missed work one time each in 2003, 2004 and 2005 for FMLA-covered absences but did not assert her FMLA rights. The employer counted those absences against her under the attendance policy. Plaintiff's twelfth absence occurred in 2010 and resulted in her termination. Plaintiff waited seventeen months before filing suit in 2012.

          Plaintiff argued that the FMLA violation occurred upon her termination. The employer countered that the alleged FMLA violations occurred in 2003-2005 and, therefore, Plaintiff’s FMLA claim had to be filed within two years thereafter. The trial court and the Court of Appeals agreed with the employer.  The Court of Appeals reasoned as follows:

We begin with the statutory text. The FMLA provides that “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” *** To determine when the claim accrued, the statute tells us to identify the “last event” constituting the alleged FMLA violation.

          Without going into the full analysis, it’s pretty clear that the event giving rise to what was an FMLA interference claim was counting an FMLA-covered event as an unexcused absence under the attendance policy. Consequently, the FMLA-claim accrued at the latest in 2005. Plaintiff had until 2007 to bring the claim but waited until 2012 to file a lawsuit.  Too late.

          The moral of the story is that employees should not sit on their rights. Contact an employment lawyer (i.e., me) as soon as you’ve been nailed with an unexcused for medically-related reasons. I have had great success with FMLA/attendance policy cases, but no lawyer will be able to help you if you sit on your rights.

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