January 2002
Vol. 15, Issue 1
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By James D.
Kurek, Esq. 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 |
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.
At BDB we are always improving our processes so that we operate efficiently
and effectively. Please let us know how you like our new broadcast format.
E-mail: bdb@bdblaw.com Phone: 330.258.6473
Fax: 330.252.5473.
Thank you.
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