Department of Labor posts wealth of information on new COBRA subsidy

As I’ve previously reported, the American Recovery and Reinvestment Bill of 2009, commonly known as President Obama’s economic stimulus bill, provides for a nine-month 65% subsidy of the COBRA premiums for involuntarily terminated employees. The Department of Labor has updated its website with lots of information for employer and employees on the subsidy: FAQS, flyers, posters, and other COBRA-related resources. Missing, however, is the one resource that would be the most useful to employers: a model form to provide to terminated employees. The DOL does say that it “is actively working to issue additional guidance regarding the COBRA premium reductions.” Perhaps it will issue the model COBRA notice along with this additional guidance. When the DOL gets around to publishing the model notice, I will be sure to post a link.

Maternity leave issues continue to confound employers

Maternity leave is one of the most misunderstood employment law issues for businesses. Two laws generally govern workplace maternity leave. First, the Family and Medical Leave Act, which mandates 12 weeks of maternity leave for employees who worked at least 1,250 hours in the prior 12 months for businesses with 50 or more employees. Secondly, the employment discrimination laws require that pregnant women be treated no differently than people with similarly debilitating conditions.
Ohio employers often misbelieve that if they are too small for FMLA coverage or if the FMLA does not cover a specific employee, they can deny maternity leave under a neutral leave of absence policy. As Nursing Care Mgmt. of America v. Ohio Civil Rights Commission (Licking Cty. 3/11/09) illustrates, under Ohio law employers that do not give all pregnant employees a reasonable amount of maternity leave, regardless of the employer’s leave policy, act at their own peril.
Pataskala Oaks Care Center had a neutral leave of absence policy that provided 12 weeks of leave for those employees with at least one year of service. After working at Pataskala Oaks for eight months, Tiffany McFee provided a note from her doctor stating that she was medically unable to work because of pregnancy-related swelling, and that she could return to work six weeks after delivery. Pataskala Oaks terminated her employment three days after delivery because she did not qualify for leave under its policy. The appellate court ruled that Pataskala Oaks committed unlawful sex discrimination by not granting McFee a reasonable maternity leave.
Ohio has specific regulations that cover maternity and childbirth leaves of absence – Ohio Admin. Code 4112-5-05(G). The key part of that section provides:

(2) Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.

Pataskala Oaks argued that it had a leave policy, but McFee did not qualify under it because of her short tenure. The Court did not buy Pataskala Oak’s argument:

Termination of an employee disabled due to pregnancy is prohibited if the employer provides no maternity leave or insufficient maternity under its employment policy. In this case, it is undisputed that Pataskala Oaks had no maternity leave available to McFee at the time of her pregnancy disability….
Pataskala Oaks does not deny that McFee requested maternity leave, and that it terminated McFee without providing her maternity leave for a reasonable period of time. Pursuant to 4112-05-05(G)(2) such termination “shall constitute unlawful sex discrimination”.

This case is important for all Ohio businesses. Ohio law requires that all pregnant employee be provided a “reasonable” maternity leave, regardless of the the employer’s size, the employee’s tenure, or the language of a leave policy. If an employee asks for maternity on her first day of employment, it must be given and she must be restored at the end of the leave. The open issue is what “reasonable” means. Is it a fixed amount of time? Set by a doctor’s certification? Does it include bonding with a newborn or is it limited to medical necessity? These open questions will be answered on a case-by-case basis. What we know for sure is that zero maternity leave is a quick road to liability.

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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 jth@kjk.com.

Do you know? Mandatory unpaid time off may affect salaried employees’ exemptions

Do you know? Many companies are turning to mandatory work furloughs or reduced work schedules as creative ways to save wages without having to lay off employees. These programs are designed to control the number of hours worked by employees and the resulting amount of wages paid. When applied to salaried exempt employees, however, in increments of other than a full week, furloughs and reduced work schedules can jeopardize exemptions under the Fair Labor Standards Act.

The FLSA provides an exemption from the minimum wage and overtime requirements for any employee employed in a bona fide executive, administrative or professional capacity. To qualify as exempt, most executive, administrative, and professional employees must, among other factors, be paid on a salary basis. Generally, an exempt employee must receive his or her full salary for any week in which the employee performs any work, without regard to the number of days or hours worked. In no event can an employer take any deductions from an exempt employee’s salary for full or partial day absences occasioned by lack of work. Thus, if an employer schedules an exempt employee for less than 40 hours in a week, the employee must still be paid a full week’s salary, or risk placing the employee’s exemption in jeopardy.

Reduced work schedules and furloughs, while very much in vogue, raise a host of complex legal issues. This post only discusses one such issue. If your business is considering implementing such an idea, contact your employment counsel to ensure that your plan complies with all wage and hour, discrimination, and other labor and employment laws.

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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 jth@kjk.com.

Enjoying the small things in these trying times

When I attended Binghamton University, nee SUNY-Binghamton, in the early 90s, it’s sports programs were Division III. It was small-time, no television, 500 people in the West Gym, college basketball, to which I held season tickets for my four years on campus. Imagine my joy, then, to sit in my family room Saturday morning and watch Binghamton on ESPN2 play for its first conference title and trip to March Madness since the jump to Division I eight year ago. When the final buzzer sounded, and the announcers congratulated Binghamton on its historic win, and thousands of crazed fans flooded the floor of the school glistening new Events Center, I am not embarrassed to say that I shed a tear for my alma matter.

We live in depressing times. You can’t open a newspaper or surf the web without reading news about the sinking stock market, failing banks, high foreclosure rates, and record job losses. As an employment lawyer, those layoffs, frankly, are good for business. Yet, every time my phone rings and I field a call about handling the mechanics of another layoff at some other company, my heart sinks a little. I’m grateful for the work, and somber that what I do for a living can have such a profound effect on the lives of people that I likely will never meet.

Binghamton’s foray into big time college sports got me to thinking, in these trying times, we really do need to sit back and enjoy the small things. Whatever your small thing might be – a picture your daughter colored for you, a quiet conversation with someone you love, or picking your beloved alma mater to wear Cinderella’s slipper in the office pool – embrace it, even for a moment. At the end of the day, it’s the small things in our lives that are often the biggest of all, and help us cope with the big things that we too often allow to define who we are.

Oh, and go Binghamton, beat Duke.

[Update: for more on Binghamton basketball, I cannot more highly recommend Tzvi Twersky article in Slam Magazine: Great Blue Times at Binghamton U.]

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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 jth@kjk.com.

WIRTW #70: The Employee Free Choice Act Edition

On Tuesday, Congressional Democrats introduced the Employee Free Choice Act in both Houses of Congress. This legislation will present the most contentious Congressional debates Washington has seen in at least a generation. If passed, it will radically alter union/management relations by permitting the certification of labor unions without a secret ballot election and by mandating binding arbitration for all first collective bargaining agreements. Because I can’t possible provide all of the coverage due this important legislation, this week’s WIRTW is dedicated to the EFCA:

• If you want to read the bill for yourself, the EFCA Report has links to its full text.

• If you can’t stand the thought of reading legislation, several blogs have useful summaries of the EFCA’s key provisions: The Labor & Employment Blog; the Washington Labor & Employment Wire; Mark Toth’s Manpower Employment Blawg; and the Employeescreen IQ Blog.

• The U.S. Chamber of Commerce’s ChamberPost details its efforts to fight against the EFCA’s passage, busts some common union myths about the ECFA, and provides an economic analysis against the EFCA. The most striking number is an estimate that the passage of the EFCA would cost our country 600,000 jobs the following year.

• The Word on Employment Law with John Phillips has another take on the EFCA and the economy.

• Frank Roche’s KnowHR Blog asks if your employees are ready to take the heat from unions if the EFCA passes.

• LaborPains.org posts a video of MSNBC’s liberal standard-bearer, Rachel Maddow, and suggests that she read the text of the bill before she editorializes on it.

• World of Work links to another video, this one by the SIEU, which comments on management’s use of “scare tactics” against the EFCA.

• HR Observations talks about the dangers of the EFCA’s lesser-known arbitration provisions.

• There are a couple rays of sunshine: ECFA Updates reports that Senate Democratic support for the bill might be wavering, and the EFCA Report suggests that some compromises might already be in the works to get this bill passed.

• Finally, Daniel Nichanian at Campaign Diaries has a detailed breakdown of where the Senate stands today on both support for the bill and support of a cloture to end the guaranteed Republican filibuster on the EFCA. With 44 Senators (which includes Al Fraken, who has not yet been formally seated) either co-sponsoring or openly supporting the bill, Daniel focuses on the 16 swing votes, Senators who have supported the bill in the past but have not yet taken a stand on the 2009 version. The Senate Democrats will have enough votes to pass the EFCA; the question is whether they will have enough votes for the cloture. Stay tuned - this promises to be very exciting.

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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 jth@kjk.com.

Economy Down – Lawsuits Up

Has your company laid off or fired anyone recently? Have you recently been sued for discrimination? According to numbers to be published by the EEOC, the odds are that if you haven’t been sued, you will be.

The EEOC has released its caseload numbers for fiscal year 2008, and the upswing in the number of claims from the prior year is dramatic. From the EEOC, courtesy of the Wall Street Journal:

Type of Discrimination	2007 EEOC Charges	2008 EEOC Charges	Change from 2007 to 2008
Age	19,103	24,582	28.7%
Retaliation	26,663	32,690	22.6%
Sex	24,826	28,372	14.3%
Religion	2,880	3,273	13.6%
National Origin	9,396	10,601	12.8%
Race	30,510	33,937	11.2%
Disability	17,734	19,453	9.7%
Total	82,792	95,402	15.2%

 

In this economy, nearly every termination and lay-off should be considered high-risk. With little to lose, more and more employees are taking fliers on discrimination claims in hopes of scoring a settlement to help cushion the job loss blow.

Terminating or laying off an employee without getting employment counsel involved before the termination is asking for a lawsuit. Companies should be working with their attorneys to:

1. Vet group layoffs and individual terminations to confirm that the decisions are lawful and non-discriminatory.

2. Ensure that protected groups are not otherwise disproportionally represented in group layoffs.

3. Hedge their liability risks be offering severance packages in exchange for releases signed by departing employees.

We attorneys cannot offer a magic pill to immunize against lawsuits. What we can offer is proactive counseling so that you are best positioned to defend yourself when the lawsuit comes.

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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 jth@kjk.com.

Do you know? Guns at work

Do you know? While the 2nd Amendment famously guarantees the  right to bear arms, Ohio law protects the right of employers to prohibit weapons of any kind from entering the workplace.

Ohio Revised Code section 2923.126(C)(1) provides:

Nothing in this section shall negate or restrict a rule, policy, or practice of a private employer that is not a private college, university, or other institution of higher education concerning or prohibiting the presence of firearms on the private employer’s premises or property, including motor vehicles owned by the private employer.

In Plona v. UPS (3/6/09), the Sixth Circuit recently confirmed the right of an employer to terminate an employee for violating a no-weapons policy. In that case, UPS fired Plona for violating its policy against possessing firearms on its premises after he was found with a pistol in his car. Plona claimed that the termination violated Ohio’s public policy in favor of the right to bear arms. The Court correctly disagreed:

Although the Ohio Constitution provides a general right to bear arms, the state certainly does not have a “clear public policy” of allowing employees to possess firearms on the premises of their private employers. To the contrary, the Ohio legislature has specifically provided that employers may limit their employees’ rights to bear arms…. UPS was thus plainly within its rights … to prohibit its employees from possessing firearms in the parking area.

If your business does not have a policy banning weapons anywhere on its premises, consider contacting your employment counsel to have a policy drafted.

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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 jth@kjk.com.