Monday, December 6, 2010

Ohio democrats look to go down swinging

In boxing its called a puncher’s chance. As long as you’re on your feet, you always have a chance to knock out the other guy. You might get knocked around for 11 rounds, but as long as you can throw a solid punch in the 12th, you can always win the fight.

This is what the democrats in the Ohio House are trying to do. In last month’s election, the republican tide swept away their control of Ohio’s House. Next month, their half of Ohio’s legislature, along with the Governor’s mansion, will join Ohio’s Senate as republican-controlled. On their way out, the current House majority is going down swinging.

Tomorrow, the Ohio House will hear testimony, and possibly vote, on three long-standing pieces of legislation:

  • HB 470 – which would create a new protected class for people who smoke tobacco. For my prior thoughts on this bill, see Bill seeks to snuff out discrimination against smokers.

  • HB 488 – which would create a new protected class for women who are lactating, in addition to requiring that employers provide lactating employees reasonable, unpaid time each day to permit the expression of breast milk. I’ve also previously written about this legislation. Because of the recent federal mandate for workplace lactation breaks, this legislation is irrelevant.

  • HB 523 – which would create a uniform definition of “employee” in Ohio’s minimum wage, wage payment, and workers’ compensation laws. This statute would broadly define an “employee” as “an individual who performs services for compensation for an employer.” Critically, it presumes anyone who falls under this broad definition is an “employee” and would require the employer to prove otherwise. It also creates a stringent enforcement scheme, which includes a private cause of action, civil penalties, and criminal penalties for misclassifications. Of these three pieces of legislation up for consideration, this is the most significant and has the widest implications for Ohio businesses.

Unlike the weary, late-round boxer, the Ohio democrats have no chance of winning any of these battles. They could win the round by passing one or more these bills, but each would certainly die in the republican-controlled Senate.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or