Take two in FMLA expansion for military families

Both the House and Senate have again overwhelmingly signed the National Defense Authorization Act that President Bush vetoed at the end of last year. It now sits on President Bush's desk where he again is expected to sign it. While I've been burned on this once before, I am optimistic that the President will sign the bill this time. A White House spokesman has said that President Bush is expected to sign the revised legislation. The bill will expand the FMLA to provide FMLA leave because of exigencies related to active military duty, permit an eligible employee to take up to 26 weeks of FMLA leave to care for an injured servicemember, and adds "next of kin" to the family members entitled to take such FMLA leave.

[Hat tip: The FMLA BLog]

Ohio appellate court puts age discrimination statute of limitations in doubt

Ohio's age discrimination statute of limitations has always been one of the quirks of Ohio employment law. All discrimination claims under R.C. Chapter 4112 have a six-year statute of limitations, except for age claims. Until recently, it has been well established that an age claim brought under R.C. 4112.99 had a 180-day statute of limitations. Meyer v. United Parcel Serv., Inc., decided last month by the Hamilton County Court of Appeals, rejects that longstanding conventional wisdom, and holds that plaintiffs have six years to bring such age claims.

One can bring an action for age discrimination under four different provisions within R.C. Chapter 4112:

• First, R.C. 4112.02(N) prohibits discrimination in employment on the basis of age and provides for "any legal or equitable relief that will effectuate the individual's rights." An age-discrimination claim under this statute must be brought within 180 days of the alleged unlawful discriminatory practice.
• Second, R.C. 4112.14(B) provides a remedy for age-based discrimination in the hiring and termination of employees "which shall include reimbursement to the applicant or employee for the costs, including reasonable attorney's fees, of the action, or to reinstate the employee in the employee's former position with compensation for lost wages and any lost fringe benefits from the date of the illegal discharge and to reimburse the employee for the costs, including reasonable attorney's fees, of the action." A six-year statute of limitations applies to these claims.
• Third, R.C. 4112.99 provides an independent civil action to seek redress for any form of discrimination identified in R.C. Chapter 4112. The statute makes violators of R.C. Chapter 4112 "subject to a civil action for damages, injunctive relief, or any other appropriate relief."
• Finally and alternatively, a plaintiff may file a charge administratively with the OCRC under R.C. 4112.05., but such a filing acts as an absolute bar to instituting a civil action in court.

When filing an age claim, one must elect which statute one is filing under.

At least as far back as the Ohio Supreme Court decided Bellian v. Bicron Corp. in 1994, it has been well established that an age claim under R.C. 4112.99 is subject to the 180-day statute of limitations in R.C. 4112.02(N). See Oker v. Ameritech Corp. ("An age-discrimination claim brought pursuant to R.C. Chapter 4112 must be initiated within the one-hundred-eighty-day statute of limitations period set forth in former R.C. 4112.02(N)."); McNeely v. Ross Correctional Inst. ("Whether an age discrimination claim is premised on R.C. 4112.02 or 4112.99, a plaintiff must file the claim within 180 days of the alleged discriminatory act.").

The Hamilton County Court of Appeals, however, has put this conventional wisdom in doubt. In Meyer v. United Parcel Serv., Inc., that court concluded that because R.C. 4112.99 provides an independent cause of action, it is separate from R.C. 4112.02(N), and therefore subject to the same six-year statute of limitations as other claims brought under R.C. 4112.99. The Court based its rationale on the recent Ohio Supreme Court decision in Leininger v. Pioneer National Latex holding that Ohio does not recognize a common-law tort claim for wrongful discharge based on the public policy against age discrimination:

Recently, in Leininger v. Pioneer National Latex, the Ohio Supreme Court held that Ohio does not recognize a common-law tort claim for wrongful discharge based on the public policy against age discrimination, "because the remedies in R.C. Chapter 4112 provide complete relief for a statutory claim for age discrimination." In reaching its holding, the court reiterated its prior holding that had rejected the argument that the specific-remedies provisions of subsections within the chapter prevail over the more general provisions of R.C. 4112.99. The court noted that "R.C. 4112.08 requires a liberal construction of R.C. Chapter 4112. Although R.C. 4112.02(N), 4112.08, and 4112.14(B) all require a plaintiff to elect under which statute (R.C. 4112.02, 4112.05, or 4112.14) a claim for age discrimination will be pursued, when an age discrimination claim accrues, a plaintiff may choose from the full spectrum of remedies available. Leininger's argument also does not take into account the scope of R.C. 4112.99's remedies. In Elek v. Huntington Natl. Bank (1991), 60 Ohio St. 3d 135, 573 N.E.2d 1056, we stated that R.C. 4112.99 provides an independent civil action to seek redress for any form of discrimination identified in the chapter. Id. at 136. A violation of R.C. 4112.14 (formerly R.C. 4101.17), therefore, can also support a claim for damages, injunctive relief, or any other appropriate relief under R.C. 4112.99. This fourth avenue of relief is not subject to the election of remedies."

Meyer's logic is a tortured reading of Leininger, which expressly found that R.C. 4112.02(N) and R.C. 4112.99 are subject to the same statute of limitations for age claims:

Although R.C. 4112.14 was the only statutory claim available to Leininger at the time she filed her complaint due to the expiration of the statute of limitations for claims under R.C. 4112.02 and 4112.05, this fact does not justify limiting our examination of the available remedies under the chapter as a whole. In determining whether a common-law tort claim for wrongful discharge based on Ohio's public policy against age discrimination should be recognized, we need to look at all the remedies available to a plaintiff at the time the claim accrued.

There is certainly some appeal to the argument that it does not make any sense that age claims and all other discrimination claims have different statutes of limitations. On the other hand, R.C. Chapter 4112 has three distinct remedial statutes for age discrimination, more than any other type of discrimination. The point is that if we are going to change the statute of limitations, it should be done by the legislature, and not by an appellate court diverging from 14 years of precedent. To again quote the Leininger decision: "Leininger contends that the short statute of limitations of R.C. 4112.02 ... detracts from the remedial scheme of R.C. Chapter 4112. The period within which a claim must be brought, however, is a policy decision best left to the General Assembly."

The Meyer case is most likely an anomaly. Regardless, if you are practicing in Hamilton County, you should be aware that employees have six-years to file their age claims in that court. This issues bears watching to see if any other appellate districts follow suit, or if the Supreme Court takes up this issue to resolve this recent divergence of opinion.

New breed of employee handbook creates legal problems

The blogosphere has been hopping the past several days over the new employee handbook drafted by newspaper conglomerate the Tribune Company. Rather than recapping the issues, I'll merely direct everyone to a very good summary at the Connecticut Employment Law Blog.

To sum up, though, the Tribune's new handbook (which comes in at a very concise 11 pages) is very informally written, probably in an attempt for it to be better understood. When your harassment policy, however, tells employees:

Working at Tribune means accepting that sometimes you might hear a word that you, personally, might not use. You might experience an attitude that you don't share. You might hear a joke that you might not consider funny.... This should be understood, should not be a surprise and is not considered harassment. Harassment means being told that a raise, promotion or other benefit is dependent on you going on a date with your boss or some other similar activity.

you might have a problem. Limiting the definition of sexual harassment to quid pro quo is a serious misstatement of the law that a review by a lawyer would have caught and corrected. Jocularity and informality are one thing, if that is the image you want to present. Discouraging employees from reporting a hostile environment by incorrect statements of the law is entirely different. There is nothing wrong with savings costs by drafting your own employee handbook. Not having a lawyer review it before it is disseminated, however, will end up costing a company a whole lot more in litigation costs then if it just had a lawyer draft it in the first place.

Untangling Employment Practices Liability insurance

Earlier this month, law.com had a very insightful article on the advantages and pitfalls of business insurance policies. See On the Horns of a Defense Counsel Dilemma. While the article did not specifically concern Employment Practices Liability policies, the issues are the same. Any insurance policy sets up a very curious relationship - the relationships between the policy holder and insurance company, the law firm and their insurance carrier referral source, and the attorney-client relationship.

When I used to do a lot of work for clients under EPL policies, the refrain I most often heard from my client was, "You're the insurance company's lawyer." Nothing could be further from the truth. Unless an insured has paid for the right to select counsel, the insurance company selects and retains counsel for the insured under the EPL policy, and, subject to the policy's deductible, pays the fees. The client, though, is always the insured, and not the insurance company. Ohio law supports the idea that although there exists this odd "tripartite relationship" between the insured, the lawyer, and the insurance company, the only attorney-client relationship that exists is between the lawyer and the insured; there exists no such relationship between the lawyer and the insurance company. A lawyer's ethical duties are always solely owed to the insured. See Swiss Reinsurance Am. Corp., Inc. v. Roetzel & Andress

Notwithstanding any EPL converage a company might have, there are certain key instances where a company may want to have its own employment or corporate counsel involved in litigation, working along side insurance counsel.

• EPL insurance will cover some, but not all, employment related claims in the state of Ohio. For example, it is illegal to insure against punitive damages in this state. Further, different policies may cover different types of claims. For example, discrimination claims may be covered, and wage and hour claims not covered. Therefore, it is important at the outset of any engagement in which there may be insurance coverage to have counsel review the claims, the policy, and any reservation of rights letters to make a determination as to what is and is not covered. Counsel may not agree with the insurance company on coverage. In that case, one is usually better served having an attorney fight that battle with the insurance company.
• Because not all claims may be insured, one might be left with uninsured exposure in a case. Punitive damages or damages that exceed policy limits are two examples of uninsured exposure. Because one might have certain aspects of a case for which there is no insurance coverage, it may be wise to have separate counsel monitoring the litigation, and if the stakes are high enough, taking an active role to hedge against the uninsured risk.
• Conflicts can also arise between the client's interest and that of the insurance company. How to defend a case, whether to settle, and for how much are all issues with which the insured and the insurer can have divergent issues. If such a conflict occurs, the insured may question the loyalty of the attorney hired by the insurance company. In such a circumstance it makes sense to get an outside law firm involved to manage the conflict, push back against the insurance company to triumph your interests, and even possibly take over the defense if the conflict cannot be resolved.

When these issues arise, they are rarely simple or easily resolved. Understanding the nature of this tripartite relationship is the first step in taking control of the process and ensuring that a defense is complete and proper.

Some words to ponder on MLK Day

Forty-five years ago, "the civil rights movement swirled into Birmingham, a city whose bitter resistance to change made it a battleground." Jack Bass, Unlikely Heroes 201 (1981). Dr. Martin Luther King Jr. remarked, "If we can crack Birmingham, I am convinced we can crack the South. Birmingham is a symbol of segregation for the entire South." Id. By blood, toil, and tears, segregation was, of course, cracked in Birmingham, and today the city is led by its fourth black mayor and a majority-black city council. Against this historical backdrop, this appeal from the Northern District of Alabama offers, amid a host of technical issues, an important reminder: despite considerable racial progress, racism persists as an evil to be remedied in our Nation.

Such are the words of the Hon. William H. Pryor Jr. of the 11th Circuit Court of Appeals in Goldsmith v. Bagby Elevator Co. Goldsmith involves appalling allegations of racial harassment, which resulted in a substantial jury verdict affirmed by the 11th Circuit. This Martin Luther King Day is as good a time as any for everyone to stop and reflect on Judge Pryor's words, and ask if you are doing all that you can to combat discrimination of all kinds in your workplace.

Supreme Court to hear retaliation (Crawford v. Nashville) and ADEA disparate impact (Meacham v. Knolls Atomic Power) cases

The U.S. Supreme Court has granted cert. in two more employment cases to be heard this term.

Crawford v. Metropolitan Government of Nashville, which is out of the 6th Circuit, asks if Title VII's anti-retaliation provision protects an employee from being fired because she cooperated with her employer's internal sexual harassment investigation.

Vicki Crawford claimed that her termination after she participated in a sexual harassment investigation constituted retaliation. The 6th Circuit disagreed, holding that participation in a purely internal, in-house investigation, in the absence of any pending EEOC charge, is not a protected activity. The Court reasoned that a contrary result would chill employers' investigations because they would not interview witnesses for fear of potential retaliation liability. Crawford, not surprisingly, is arguing the converse, that such protection is needed so that employees' willing participation in such investigations is not chilled. The EEOC, along with the 3rd, 5th, 8th, and 11th Circuits, disagree with the 6th Circuit's holding.

On first blush, it seems that the employee has the better of the argument. Employees already perceive that they can be fired if the company doesn't like what they have to say. It's hard enough as is to get employees to voluntarily cooperate, and assurances of no retaliation are usually necessary to get them to open up at all. A ruling for the employer in this case would make internal investigations all that much harder to conduct. To quote from the cert. petition:

Workers of ordinary prudence would be likely to avoid cooperating with a sexual harassment internal investigation if they knew they could be fired for doing so, certain as most will be that such cooperation will anger the alleged harasser, who usually is a supervisor and who all too often is the witness's own supervisor. Employees would have a disincentive to cooperate, if their participation in internal investigations is not protected. Placing a voluntary witness into this kind of legal limbo would impede remedial mechanisms by denying interested parties' access to the unchilled testimony of witnesses. (internal quotations and citations omitted).

Meacham v. Knolls Atomic Power Laboratory asks whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the "reasonable factors other than age" defense. More on this case as we get closer to oral argument.

What else I'm reading this week #14

A few sports related articles to start off this week's round-up. Michael Moore at the Pennsylvania Employment Law Blog discusses the flak over Kelly Tilghman's comments about Tiger Woods, and how her employer diffused a potentially problematic situation. Meanwhile, John Phillips at The Word on Employment Law talks about Randy Moss's legal troubles and an employer's potential liability for hiring a known bad egg. Finally, The HR Capitalist looks at the flip side of the Randy Moss issue, and uses Terrell Owens crying jag to examine the issue of whether your "morale killer" has turned the corner. Being a Philadelphia native and an unapologetic Eagles fan, I'll spare everyone my rant on T.O.

The Manpower Employment Blawg looks at an issue that I've touched on once or twice in last several months - wage and hour class action lawsuits as a booming industry for the plaintiffs' bar. For my thoughts on this issue from back in September, see Use a wage and hour audit to proactively head off claims, and Wage and hour litigation hits the big time.

From the ABA Journal comes a fascinating story about new technology being developed by Microsoft that will enable employers remotely to monitor their workers' productivity, competence, and physical well-being. According to this article, wireless sensors will provide employers with workers' heart rates and stress level, and determine whether they are smiling or frowning, among other data.

The Labor and Employment Law Blog gives a good summary of some of the liability issues implicated by e-mail and voice mail.

Finally, the HR World Blog has an interesting piece on workplace race relations in light of what we saw unfold earlier this week in the Democratic Presidential campaign. You can read my thoughts from October on racial harassment claims in Racial harassment lawsuits on the rise.