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January 2002
Vol. 15, Issue 1
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version)
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By James
D. Kurek, Esq.
Welcome to the winter issue of Employment
Law Brief. As we do in our other publications,
we aim here to provide you with information
on changes in laws and regulations that could
have a significant effect on your business
decisions and policies. This issue tracks
judicial and regulatory decisions related
to OSHA regulations, arbitration agreements
and ADA compliance. We are also taking this
opportunity to introduce you to two attorneys
from the law firm of Chattman, Gaines &
Stern who have recently joined us, practicing
in our Cleveland office. As members of our
Employment Law Practice Group, they are enabling
our Firm to provide outstanding labor law
services to clients in Greater Cleveland,
directly from the Cleveland office.
James
D. Kurek is the Chair of the
Employment Law Practice Group and can
be reached at 330.258.6443 or by e-mail at
jkurek@bdblaw.com
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OSHA’s
New Recordingkeeping Rule Takes Effect
By Tod
T. Morrow, Esq.
 The
Occupational Safety and Health Administration (OSHA)
has revised its recordkeeping regulations effective
January 1, 2002. The revised regulation introduces
new and simplified recordkeeping forms. Specifically,
OSHA Form 300 (“Log of Work-Related Injuries and
Illnesses”) replaces OSHA Form 200 and OSHA Form
301 (“Injury and Illness Incident Report”) replaces
OSHA Form 101. The revised rule also introduces
OSHA Form 300A (“Summary of Work-Related Injuries
and Illnesses”), which must be certified by a company
executive and posted annually from February 1 to
April 30. Under the old rule, an employer was obligated
to post the annual summary for only one month (February),
and there was no certification requirement.
In addition to utilizing new recordkeeping forms,
the revised regulation makes the following significant
changes:
- Establishes a single set of recording criteria
for both work-related injuries and work-related
illnesses. (The former rule required employers
to record all illnesses, regardless of severity.)
- Requires employers to record a work-related
injury or illness resulting in one of the following:
death, days away from work, restricted work or
transfer to another job, medical treatment beyond
first aid, loss of consciousness, diagnosis of
a significant injury or illness by a physician
or other licensed health care professional.
- Adds further exceptions to the definition of
work-relatedness to limit recording of cases involving
eating and drinking of food and beverage, common
colds and flu, blood donations, exercise programs,
mental illnesses, parking lot injuries, etc.
- Clarifies the recording of “light duty” or restricted
work cases. Requires employers to record cases
when the injured or ill employee is restricted
from “routine job functions,” which are defined
as work activities the employee regularly performs
at least once weekly.
- Requires employers to record all needlestick
and sharps injuries involving contamination by
another person’s blood or other potentially infectious
materials.
- Eliminates the term “lost workdays” and requires
recording of days away from work or days restricted
or days transferred to another job. Calls for
employers to count calendar days rather than workdays.
- Requires employers to establish a procedure
for employees to report injuries and illnesses.
- Guarantees employees and former employees access
to their individual OSHA 301 forms. Employee
representatives will be provided access to certain
sections of the OSHA 301 form.
- Protects employee privacy for certain types
of injuries.
Although the “employee access” provisions may prove
problematic, the bulk of the revised standard provides
much-needed clarification and simplification of
recordkeeping requirements.
Tod T.
Morrow, Esq. is a Shareholder and
member of the Employment Law and Workers’ Compensation
Practice Groups and can be reached by email at tmorrow@bdblaw.com
or at 330.491.5229.
Are
Arbitration Agreements Right For Your Business?
By Vincent
J. Tersigni, Esq.
 In
its decision last year in Circuit City Stores,
Inc. v. Adams, the U.S. Supreme Court held that
contracts of employment which waive the rights of
employees to pursue litigation in court, and provide
for arbitration of all employment disputes, are
enforceable under the Federal Arbitration Act (FAA)
for employees in all industries except transportation.
Although the Supreme Court has given the green light
to pre-dispute employment arbitration agreements,
a number of practical considerations need to be
addressed by employers before they implement such
programs.
The arbitration clause at issue in the Circuit
City case simply stated that the employee would
settle all employment disputes with Circuit City
exclusively by final and binding arbitration before
a neutral arbitrator. The clause was not in a separate
agreement, but rather, was in the company's employment
application signed by the employee.
Unfortunately, the Supreme Court in Circuit
City did not address the necessary elements
an arbitration clause must contain in order to be
enforceable, nor did it address whether the particular
language in the employment application signed by
the employee at issue was properly drafted and enforceable.
The Court also expressly declined to address the
issue of whether or not the FAA would pre-empt some
state laws that limit the viability of arbitration
agreements in state courts.
Pre-dispute mandatory arbitration policies in the
employment context are usually implemented by employers
with the goal of reducing litigation costs, resolving
claims more expeditiously, and avoiding the potential
for large "runaway" jury verdicts. In
order to meet such a goal, the arbitration agreements
themselves must, of course, be drafted with enforceable
language. Otherwise, protracted litigation over
the enforceability of the agreements will negate
any anticipated cost savings. To be enforceable,
an arbitration agreement must also provide sufficient
due process and reasonable access to a fair hearing.
Thus, the process must, at a minimum, provide for
neutral arbitrators, meaningful discovery, all
types of relief that would otherwise be available
in court, and a written award.
Following the Supreme Court's decision in Circuit
City, federal courts this past year have
continued to address the enforceability of arbitration
agreements in the employment context. In one post-Circuit
City decision, Perez v. Globe Airport Security
Services, decided on June 12, 2001, the Court
of Appeals for the Eleventh Circuit found that an
arbitration agreement that required an employee
to submit his Title VII discrimination claims to
arbitration, and that required the parties to share
the fees and costs of arbitration equally, was unenforceable
because it unlawfully denied the employee all of
the remedies that would have been available to her
under Title VII.
In another case, Penn v. Ryan's Family Steakhouses,
the U.S. Court of Appeals for the Seventh Circuit
held on October 17, 2001 that an arbitration agreement
signed by the plaintiff/employee was unenforceable.
The Court found that the restaurant chain could
not enforce the agreement because the agreement
was between the employee and an employment dispute
resolution firm that provided an arbitration forum
for resolving disputes between the restaurant and
its employees, and the restaurant, for whatever
reason, was not named as a party to the agreement.
The Court found that the employee had not made a
knowing and voluntary waiver of his right to a judicial
forum for any employment-related disputes when he
signed the agreement on applying for a job at the
restaurant.
On October 29, 2001, the U.S. Supreme Court denied
review of a decision of the Fourth Circuit Court
of Appeals in Safrit v. Cohen Mills Corp., in
which the Court of Appeals had affirmed summary
judgment for the employer and compelled arbitration
of an employee's claim, where the language of the
collective bargaining agreement between the parties
clearly and unmistakably provided that arbitration
was the sole forum to hear her employment discrimination
claims.
This month the U.S. Supreme Court decided another
pre-dispute arbitration agreement case, EEOC
v. Waffle House, in which the Court held that
the Equal Employment Opportunity Commission is not
bound by an employee’s agreement for arbitration.
The Court found that since the EEOC was not a party
to the arbitration agreement between the employer
and the employee, it was entitled to pursue a claim
on the employee’s behalf in federal court.
Based on the decision of the U.S. Supreme Court
in Circuit City, and the other federal courts'
interpretation this past year, it appears to be
well settled that a carefully drafted arbitration
agreement between an employer and its employees,
which conforms to all of the hallmarks of a contract
(i.e., offer, acceptance, and consideration) can
be enforced, at least under federal law.
Therefore, the pertinent issue is whether or not
such agreements are a good fit for your business.
There are many advantages and disadvantages to entering
into such agreements with your employees. Our experience
has shown that very few employers have decided to
implement pre-dispute employment arbitration agreements
in their workplaces, and those that have done so
have usually experienced some particularly adverse
jury verdict recently.
Of course, the more the arbitration agreement is
designed to provide safeguards for enforceability,
the less a cost benefit is realized by the employer.
Thus, in reality, arbitration of employment disputes
may be viewed not as a replacement for litigation,
but as litigation itself in a different forum.
Two drawbacks to arbitration of employment disputes
are the potential difficulty in selecting an unbiased
arbitrator who is well versed in employment discrimination
and other employment laws, and the waiver of the
ability to effectively appeal an arbitration decision.
Some commentators believe that such risks are worth
taking to avoid a hostile jury -- and juries do
go astray. However, there does not appear to exist
any substantial data to validate the notion that
decisions by arbitrators in employment-related claims
are significantly more favorable to employers than
decisions by juries or by judges in bench trials.
However, a "shock the conscience"-type
judgment is less likely to come from an arbitrator
than from a jury.
Another often-cited drawback to arbitration is
that the cost savings connected with limiting discovery
and briefing of the case come with the quid pro
quo of submitting most, if not all, employee
complaints to the fact finder for resolution, with
usually limited opportunity to obtain early dismissal
on a motion to dismiss or for summary judgment.
By comparison, in employment litigation in the state
and federal court systems, fewer than 10 percent
of all cases filed actually proceed to trial on
the merits. Arbitrations are considered by many
as a more convenient and less intimidating way for
employees to provide relief for their claims. As
noted above, arbitration agreements also do not
prevent the EEOC or a state civil rights commission
from pursuing the claim on the employee's behalf.
Despite the advantages to employees in having a
faster and more informal dispute resolution mechanism
available to them, implementation of arbitration
agreements is often resisted by employees and their
representative groups. In fact, this summer Democrats
in Congress proposed legislation to eliminate pre-dispute
arbitration agreements in individual employment
contracts.
You need to decide whether establishing such a
forum for dispute resolution is consistent with
your business' human resources and legal philosophies.
Therefore, consultation with your employment law
attorney is strongly encouraged before implementing
any pre-dispute arbitration program at your business.
Vincent
J. Tersigni, Esq. is a Shareholder and
member of the Employment Law Practice Group and
can be reached by email at vtersigni@bdblaw.com
or at 330.258.6552.
U.S.
Supreme Court Narrows Disabilities Claims
By James
D. Kurek, Esq.
On
January 8, 2002, in Toyota Motor Mfg., Ky. Inc.
v. Williams, the United States Supreme Court
clarified and narrowed the degree of physical impairment
necessary to constitute a disability under the Americans
with Disabilities Act. In a unanimous opinion written
by Justice O’Connor, the Court determined that a
medical condition is a covered disability under
the ADA only if the impairment affects the individual’s
activities of daily living, not just the individual’s
ability to perform a specific job. The Court reversed
an earlier decision in the case by the Sixth Circuit
Court of Appeals, which had found that to prove
a substantial limitation in the major life activity
of performing manual tasks, a plaintiff must merely
show that her disability involves a class of manual
activities that affect the ability to perform tasks
at work. The Supreme Court’s decision will require
a review of the individual’s inability to perform
tasks at work and her inability to perform tasks
in her daily living activities.
The practical effect of the Supreme Court’s decision
is that it will be more difficult for an individual
to establish that she in fact has a disability covered
by the ADA. When an individual seeks accommodation
from an employer for a disability, the employer
must first determine whether that individual in
fact has a disability. Now a broader inquiry will
be required to determine not only the individual’s
limitations with respect to workplace activities,
but also with respect to limitations on her daily
activities away from work. This case is viewed
as a victory for employers as it will make the task
of establishing a disability more difficult for
individuals asserting an ADA claim.
The Supreme Court still has two other ADA cases
on its calendar for the current term, one of which
involves the question of whether an employer must
accommodate the needs of a disabled worker if the
accommodation overrides the seniority rights of
other workers. The other case on the calendar involves
the issue of whether an employer can refuse to hire
an individual whose disability would make the job
a threat to that person’s own health or life. It
is expected that the Court’s decisions in those
cases will provide further clarification to the
issues that employers must consider when confronted
with a disabled applicant or employee.
James D.
Kurek, Esq. is a Shareholder and the
Practice Group Leader of the Employment Law Practice
Group. He can be reached by email at jkurek@bdblaw.com
or at 330.258.6443.
New
Employment Law Attorneys From the Firm of Chattman,
Gaines & Stern
With the addition of these two fine attorneys,
whose biographies are listed below, our Cleveland
office is now the Firm's second largest. Clients
in Greater Cleveland have been requesting that we
provide employment law services directly in Cleveland
and we are pleased that we are now able to do so.
In addition, Jerry Chattman has become Shareholder-in-Charge
of the Cleveland office.
Gerald
B. Chattman – Shareholder, Employment Law Practice
Group
 Jerry
Chattman was the managing partner of Chattman, Gaines
& Stern and has been providing labor and corporate
services to Cleveland-area companies since 1967.
He also advises non-profit organizations on a range
of governance issues including grants and process
conflicts. An adjunct professor at both Case Western
Reserve Law School and Cleveland-Marshall College
of Law, Jerry speaks on arbitration, brief writing
and advocacy. He is listed in Best Lawyers in
America® (2001-2002) and has recently published
his first novel, An Education in Murder.
Jerry is the March of Dimes State of Ohio Chairman
and Northern Regional Chairman for the National
Office of Volunteers and is the Bellefaire Jewish
Children’s Bureau President and Life Trustee. He
is a member of the Rape Crisis Center Board, the
Center for the Prevention of Domestic Violence Board,
and the United Way of Cleveland Panel. Jerry is
also a member of the Cleveland Botanical Gardens
Board of Trustees.
Jerry
can be reached by email at gchattman@bdblaw.com
or at 216.615.7354.
Douglas
J. Paul – Shareholder, Litigation and Employment
Law Practice Groups
 Doug’s
legal expertise covers employment law, business
and construction litigation, computer law and mediation.
He has a Martindale-Hubbell rating of AV, indicating
very high to preeminent legal ability and ethical
standards as established by confidential opinions
from members of the bar. He is a frequent presenter
at seminars on employment discrimination, sexual
harassment, the Americans with Disabilities Act
(ADA), covenants not-to-compete and other employment
issues. Doug is an adjunct faculty member at Cleveland-Marshall
College of Law in trial advocacy.
Douglas
can be reached by email at dpaul@bdblaw.com
or at 216.615.7340.
Kudos is a new section in ELB, to let you know about
our attorneys who have received recognition or achieved
certifications.
James D. Kurek
has been Certified by the Ohio State Bar Association
as a Specialist in Labor & Employment
Law.
Vincent J.
Tersigni was selected by Inside Business
Magazine, December 2001 issue, as a 2001
Leading Lawyer in Labor & Employment Law.
Save
The Date for these Upcoming Presentations:
On May 7, 8, & 9, 2002 in Columbus,
Ohio James
D. Kurek (Akron, Ohio Office), Tod.
T. Morrow
(Canton, Ohio Office), Thomas
W. Hess and Betsy
J. Houchen (Columbus, Ohio Office) will
be presenters at the Ohio Health Care Association
Convention. They will be discussing Responding
to Workplace Threats & Violence, OSHA:
Compliance for Nursing Homes and The Role
of the Nursing Home Quality Assurance Committee.
For additional information, contact the Ohio Health
Care Association at www.ohca.org.
Out
and About – Recent Presentations:
Gerald B.
Chattman (Cleveland, Ohio Office) spoke
on a variety of human resource issues to Ohio Savings
employees regarding the Ohio Savings Employee Assistance
Plan.
Jan E. Hensel,
Anna M. Seidensticker
and Julie M.
Young (Columbus, Ohio Office) spoke in November
on employment law issues at the Employment Law Seminar
for the Ohio Association of Medical Equipment.
Jan E. Hensel
also presented Avoiding the Pitfalls of Hiring,
Firing, and Employee Discipline to the Miami
Valley Directors of Nursing Association.
James D. Kurek,
Ashley M. Stouffer,
Vincent J. Tersigni
(Akron, Ohio), Robert
C. Meyer, and Tod
T. Morrow (Canton, Ohio) presented at Buckingham’s
13th Annual Employment Law Seminar in
Akron and Canton, Ohio on Recent Employment Law
and FMLA Developments, Arbitration Agreements and
Employment Claims, Sexual Harassment, OSHA, and
Worker’s Compensation issues.
Tod T. Morrow
also spoke in October at the National Business
Institute Seminar in Akron on OSHA: Compliance
Update in Ohio; in addition, Tod presented Compliance
with the Family and Medical Leave Act to the
Wooster Community Hospital and OSHA’s New Recordkeeping
Standards to the Occupational Medicine Center
of Tuscarawas County in November.
Vincent J.
Tersigni presented “Emerging Issues in
Employment Law” at a seminar for the Greater
Akron Chamber of Commerce. He also mediated a continuing
legal education seminar on Employment Law topics
for the Akron Bar Association in October.
If you are interested in obtaining information on
upcoming seminars or would be interested in having
speakers from BDB make a presentation to your organization,
please contact: Cheryl Warren, Director of Client
Relations and Marketing at cwarren@bdblaw.com
or 800.686.2825 ext. 546.
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