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NEW INTENTIONAL TORT
LEGISLATION |
By
Denise A. Gary,
Esq.
On January 6, 2005,
Ohio Governor Bob Taft signed House Bill 498 into law.
This legislation limits an employee’s ability to bring an
intentional tort action against his employer when the
employee is injured on the job. In order to recover
under an intentional tort theory, an employee must now
prove that the employer acted with an “intent to injure
another or with the belief that the injury was
substantially certain to occur.” This legislation narrowly
defines the term “substantially certain” to mean that the
employer acted with a deliberate intent to cause the
employee to suffer an injury, disease, condition or
death. This is a strict standard that will dramatically
limit an employee’s ability to maintain an intentional
tort action. According to this standard, unless an
employer acts with a deliberate intention to cause an
injury to the employee, the employee cannot recover under
an intentional tort theory. A rebuttable presumption is
created that the employer acted with an “intent to injure
another” if it removes a guard from safety equipment or if
it deliberately misrepresents a toxic or hazardous
substance. Claims arising during the course of employment
that involve discrimination, civil rights, retaliation,
and harassment are excluded from this legislation.
This legislation was enacted in an attempt to curb
intentional tort actions brought as a result of on-the-job
injuries, and should reduce the filing of frivolous
lawsuits. In the vast majority of cases, employees will
have to seek compensation for work related injuries solely
through the workers’ compensation system.
_______________________________
Denise Gary
is an Associate attorney in the Employment & Workers'
Compensation Practice Group. She can be reached at
dgary@bdblaw.com
or
330.491.5277.
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OHIO SUPREME COURT
DELIVERS GOOD NEWS
FOR STATE-FUNDED EMPLOYERS
|
By
Kristina M. Harless,
Esq.
 The Ohio Supreme
Court recently answered the question of whether the Bureau
of Workers’ Compensation acts unlawfully when it pays the
medical expenses of a claimant upon an order of the
Industrial Commission in spite of a pending appeal of the
Industrial Commission’s decision into common pleas court.
The Ohio Supreme Court also addressed whether the Bureau
of Workers’ Compensation is required to repay a state-fund
employer for increased workers’ compensation premiums
which were assessed against the employer due to the Bureau
of Workers’ Compensation paying the medical expenses of
the claimant which were later disallowed on appeal.
In Arth Brass v.
Conrad, 104 Ohio St.3d 547 (2004), the Ohio Supreme
Court ruled that the Bureau of Workers’ Compensation
lawfully paid the claimant’s medical bills following a
staff hearing officer’s order to do so pursuant to Ohio
law, but that the fact that the Bureau of Workers’
Compensation paid medical bills which were in dispute must
not negatively impact the employer’s workers’ compensation
premiums until the employer has exhausted all
administrative and court appeals.
The good news for
employers who have workers’ compensation coverage through
the state fund is that the Bureau of Workers’ Compensation
is now required to credit any increased premiums assessed
against the employer when a workers’ compensation claim,
or some portion thereof, is ultimately disallowed in
court.
The Bureau of Workers’ Compensation will now have to
create a method for crediting employers with any increase
in premiums, or removal from group rating status, for
employers who prevail in court. The system created by the
Bureau of Workers’ Compensation will likely be challenged
in the courts in the future though. As a result, Ohio’s
state fund employers should consult with their attorneys
to develop the best strategy for defending each claim and
protecting their rights.
_______________________________
Kristina Harless
is an Associate attorney in our Employment & Workers'
Compensation Practice Group. She can be reached at
kharless@bdblaw.com
or
330.491.5231.
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SUPREME COURT RECOGNIZES
DISPARATE
IMPACT CLAIMS UNDER THE ADEA
|
By
Kimberly Cocroft, Esq.
 On
March 30, 2005, the United States Supreme Court decided an
issue that will affect more than 70 million workers across
the country: whether plaintiffs may bring a disparate
impact action under the federal Age Discrimination in
Employment Act (“ADEA”). Disparate impact claims address
actions by an employer that, while appearing fair or
facially neutral, result in a discriminatory impact on a
protected class. Although disparate impact claims have
been recognized under Title VII since 1971, the federal
appellate courts were divided as to whether such claims
could be brought under the ADEA. In Smith v. City of
Jackson, the Court resolved the conflict by ruling
that disparate impact claims are allowed under the ADEA.
However, the scope of disparate impact claims under the
ADEA was significantly narrowed by the Court’s recognition
that an otherwise prohibited action will not violate the
ADEA if it is based upon reasonable factors other than
age.
The case involved age
discrimination claims by 30 police officers and public
safety dispatchers who were employed by the city of
Jackson, Mississippi. The employees alleged that the
city’s performance pay plan discriminated against older
workers, by giving larger pay raises to employees with
five or fewer years of tenure. The employees then filed
suit based on claims of disparate treatment and disparate
impact under the ADEA.
The City of Jackson
argued that the pay plan did not violate the ADEA because
it was not intended to be discriminatory. Rather, the
intent of the pay plan was to bring entry-level salaries
in line with those entry-level salaries in surrounding
areas.
While the high court
unanimously agreed that these employees had not
demonstrated that the City of Jackson’s pay plan
disproportionately harmed them, it ruled that disparate
impact claims should be allowed under the ADEA. The Court
emphasized the statutory language which states that an
employer may not engage in any action that would
“adversely affect” an employee on the basis of age in
deciding to allow disparate impact claims under the ADEA.
However, the Court also recognized a defense to a
disparate impact claim that is not available under Title
VII. Again citing specific statutory language, the Court
held that the pay plan did not violate the ADEA, stating:
“The city’s decision to grant a larger raise to lower
echelon employees for the purpose of bringing salaries in
line with that of surrounding police forces was a decision
based on a ‘reasonable factor other than age’ that
responded to the city’s legitimate goal of retaining
police officers.”
While the Court did not ultimately rule in favor of these
employees, its decision does sound a note of warning to
employers. Employers must be cautious when enacting
facially neutral policies that may disproportionately
affect older workers. Commentators have suggested that
the high court’s decision in Smith strikes a
balance between employers and employees. On one hand,
older employees have the ability to make claims of
disparate impact under the ADEA, regardless of intent.
However, employers will be able to defend their actions if
they are based upon reasonable factors other than age.
Thus, the Smith decision emphasizes the importance
of thoroughly evaluating any personnel decisions that may
adversely affect one segment of their workforce
population.
_______________________________
Kimberly Cocroft is an Associate
attorney in our Employment & Workers' Compensation Practice Group. She can
be contacted at
kcoroft@bdblaw.com
or
614.227.4290.
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MY DAY IN THE SUPREME
COURT: COURT WEIGHS
FUTURE ON MENTAL/MENTAL
CLAIMS
|
By
Robert C. Meyer, Esq.
 On
April 27, 2005, I had the privilege of arguing a case in
the Ohio Supreme Court. The case, McCrone v. Bank One
Corp., et al, involved a challenge to the
constitutionality of R.C. §4123.01(C)(1) which excludes
mental injuries from coverage under the Ohio
Workers’ Compensation Act when that mental injury occurred
without a physical injury. My case involved a bank
teller who had been held up at gunpoint and developed
post-traumatic stress disorder. She was not physically
injured in the robbery nor was any other person in the
bank branch physically injured at the time of the
robbery. We successfully defended the case through the
administrative hearing process and the claimant appealed
to court. Our motion for summary judgment on the statute
was denied by the common pleas court who found the statute
to be unconstitutional as applied to the facts of that
case. The court of appeals affirmed, based upon a prior
holding from the Fifth District Court of Appeals in
Bailey v. Republic Engineered Steels, Inc. We
appealed to the Supreme Court, both on a direct appeal due
to the challenge of the constitutionality of the statute,
as well as arguing that there was a conflict among the
district courts of appeals on the issue of the so-called
mental/mental Workers’
Compensation claims. The Supreme Court accepted
the direct appeal and the certified conflict.
After 25 years of
practice, I had finally gotten a case to the Supreme Court
and was excited to appear in the beautiful new Supreme
Court building in Columbus. However, a couple of months
before our scheduled oral argument, I received a letter
from the Supreme Court stating that this case had been
assigned for oral argument in the Harrison County court in
Cadiz, Ohio, as part of the Supreme Court’s offsite
education program. Thus, on April 27, 2005, instead of
traveling to Columbus to argue the case, I traveled to
Cadiz, Ohio.
The offsite program
of the Supreme Court started in 1987 and the court sits
outside of Columbus in the county seat of each of the 88
counties in Ohio. To date, the court has now sat in 49
counties. The day begins with a press conference with the
judges and approximately 30 high school students on a wide
range of topics.
Four cases are
selected for oral argument during the offsite program.
High school students are ushered into the gallery for the
oral argument. Upon the conclusion of each case, the high
school students are then taken next door to the local
church where the attorneys who argued the case hold a
question and answer session with the high school students
concerning the case and any questions that they may
have. Upon conclusion of all four arguments, the Harrison
County Bar Association sponsored a luncheon for the
justices and the attorneys who participated in the oral
arguments that day.
One interesting facet
of the day I found somewhat surprising. Justice Evelyn
Stratton sat at my table during the luncheon and she
indicated that the court had already decided the outcome
of my case that morning. Apparently, after the conclusion
of the fourth argument that morning, the justices retired
to their robing room and took a vote on each case. If the
Chief Justice was in the majority on the case, then he
assigned the writing of the majority opinion. If the
Chief Justice was not in the majority, then the names of
the justices in the majority on that case were put in a
shaker bottle and the bottle was tipped upside down and
the name of the first justice to come out of the bottle
was assigned to write the opinion. The actual opinion
itself will not be published for anywhere from two to four
months.
The McCrone
case is a significant case in
Workers’ Compensation
practice, as to the present time so-called mental/mental
claims are barred from coverage under
Workers’ Compensation.
The claimant argued that the statute was unconstitutional,
arguing that it was a denial of equal protection of the
law and that the State had no rational basis for
discriminating against claimants who suffered mental
injuries without a physical injury. I argued that the
State indeed had a rational basis for making such a
determination and that it was the duty of the legislature
to rewrite the law if it saw fit to do so, but that the
Supreme Court must uphold the law if it is
constitutional. This case presents the court with the
perfect opportunity to review the so-called mental/mental
exclusion and make a determination once and for all
whether the statute is constitutional, as I believe it is,
and whether the duty to change the statute lies with the
legislature, as I believe it should.
During the oral
argument, only four of the justices asked questions, and
the court adheres to a very tight time schedule. The
podium contains a red light and a white light that signify
when you have two minutes left in your argument and when
your argument time has completely expired, and the court
held us to those times. I had expected that given the
significant nature of this case and the constitutional
arguments, that the court may allot additional time for
this case, but the justices really did not have many
questions.
All in all, it was a
very interesting day. The local Bar Association was very
thrilled to have the Supreme Court sit in Cadiz, and the
high school students appreciated the opportunity to see
the oral arguments and discuss the cases with the
attorneys upon conclusion of the arguments.
Employers are closely watching this decision. If the
Court strikes down the statute as unconstitutional,
arguably the floodgates will open and claimants could seek
compensation for a variety of psychic injuries for
perceived injustices and harassment (real or imagined) in
the workplace with no real checks and balances on the
validity of such claims.
_______________________________
Bob
Meyer
is a Shareholder in our Employment & Workers'
Compensation Practice Group. He can be contacted
at bmeyer@bdblaw.com or
330.491.5227.
|
When is a Positive Drug or
Alcohol Test not a Positive Drug or Alcohol Test for
Purposes of Raising the Rebuttable Presumption? |
By
Barbara A. Knapic,
Esq. and
Susan Chae Rank,
Esq.
 The
Rebuttable Presumption Statute
The “Rebuttable Presumption” law, Ohio Revised Code
Section
4123.54, became effective on October 13, 2004. This new
law gives Ohio employers the opportunity to raise a
rebuttable presumption that an injury or accident was
caused by an employee’s impairment or intoxication when
that employee tests positive for drugs or alcohol or
refuses to submit to a requested chemical test.
In the ten months since its passage, however, many
employers still mistakenly interpret this law to mean that
a positive drug or alcohol test is sufficient to conclude
that the accident or injury was caused by the impairment
or intoxication, and, hence, to disqualify the injured
worker from receiving workers’ compensation benefits.
Under the law, however, a positive test result means only
that the burden then shifts to the injured worker to show
that the impairment or intoxication did not cause
his injuries.
In everyday practice, the operation of the “Rebuttable
Presumption” law has some complexities. The statute
requires that an employer show “reasonable cause” to
suspect the employee may be intoxicated or under the
influence at the time of the accident in order to use the
positive substance test to invoke the rebuttable
presumption. Thus, a positive drug or alcohol test
administered pursuant to a policy that requires
post-accident testing will not be sufficient to raise the
rebuttable presumption without reasonable cause to suspect
intoxication or impairment.
What constitutes “reasonable cause” for a drug or alcohol
test in connection with a workplace accident or injury?
The statute provides some guidance. Reasonable cause is
defined as including the following:
-
phenomena such as the direct observation of the use,
possession or distribution of the substance or physical
symptoms;
-
a pattern of abnormal conduct such as excessive
tardiness or recurrent accidents;
-
the identification of an employee as the focus of a
criminal investigation into unauthorized possession,
use, or trafficking of a controlled substance;
-
a report of use from a reliable and credible source; and
-
repeated or flagrant violations of safety or work rules
that pose a substantial risk of physical injury or
property damage and appear to be related to the
use of alcohol or a controlled substance and do
not appear to be attributable to other factors.
It is important for employers to know that the reasonable
cause standard is being applied by the Industrial
Commission hearing officers. As a result, employers must
be prepared to present testimony and evidence to prove
that “reasonable cause” existed to suspect that the
employee was using alcohol and/or drugs. Upon a showing
of reasonable cause by the employer, the rebuttable
presumption should apply where the employee tests positive
pursuant to the criteria set forth in the statute.
Terminations Resulting From
Positive Tests
Many employers have a policy that imposes disciplinary
consequences, including termination, for a positive
post-accident alcohol or drug test, or a refusal to test.
A termination pursuant to such a policy could impact the
employee’s workers’ compensation claim, even without an
independent reasonable cause to test. In Ohio, under a
rule known as the Louisiana Pacific
doctrine, injured workers terminated for violation of a
known written work rule who were aware they could be
terminated for a violation of that rule cannot receive
temporary total disability compensation unless they have
returned to other employment.
The case of Coolidge v. Riverdale Schools
prohibits the termination pursuant to a neutral leave
policy of an employee who is on temporary total
disability compensation on the basis that such a
termination violates the public policy of the state of
Ohio. Coolidge does not specifically address
whether an injured worker who is on or claiming temporary
total disability compensation can be terminated for
violation of a company drug or alcohol policy. It
is unlikely, however, that the doctrine would be expanded
to hold that termination of an employee for testing
positive for drugs or alcohol or refusing to take a
post-accident test, pursuant to a written company policy,
violates the public policy of the state.
Tips for Employers
To take advantage of the rebuttable presumption, employers
must post a written notice advising employees that the
results of, or refusal to, submit to a post-accident drug
or alcohol test may affect the employee’s eligibility for
workers’ compensation benefits. Such a notice should be
posted in a conspicuous location, such as by the employee
time clock or on an employee bulletin board. It should
also be incorporated into the employee handbook. To
obtain the benefit of the Louisiana Pacific
doctrine, the handbook should also specifically state that
a positive post-accident drug or alcohol test or refusal
to test will result in termination of employment. All
employees should be required to sign and date a statement
indicating that they have received and read the handbook.
In addition, employers should institute training programs
for their supervisors to assist in identifying observable
behaviors and evidence of intoxication or impairment. As
with all employer-sponsored training, attendance should be
documented and signed by the attending employees.
Barbara A. Knapic
is a Partner in our
Employment & Workers'
Compensation Practice Group. She can be contacted at
bknapic@bdblaw.com
or
330.491.5237.
Susan Chae Rank
is an Associate in our
Employment & Workers'
Compensation and Health & Medicine Practice Groups. She can be contacted at
srank@bdblaw.com
or
330.491.5247.
|
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|
is actively
involved in advising and educating clients regarding
compliance with and handling a variety of employment
and labor issues, including Title VII, age
discrimination, and disability. She has represented
employers before state and federal courts as well as
the Equal Employment Opportunity Commission, Ohio
Civil Rights Commission, and the National Labor
Relations Board. Ms. Rodgers also has extensive
experience in the development, implementation, and
review of corporate personnel policies and procedures
and frequently makes presentations regarding
employment and discrimination issues.
|
Paralegals
Complete Certificate of Mastery Program
Congratulations to
Annelle Baird (Buckingham BocaSM), Sheree Amos
and Dawn Grant (Buckingham CantonSM), Coletta
Risko (Buckingham ClevelandSM), and Nell Chambers,
Julianne Hindes, and Sheri Shainfeld
(Buckingham ColumbusSM), all members of the Employment and
Worker's Compensation Practice Group, for completing the LexisNexis Paralegal Certificate of Mastery Program.
They successfully completed the required coursework in
the areas of Initial Case Analysis, Cite Checking,
Locating and Profiling People, and Corporate, News and
Financial Research.
 Gerald B.
Chattman
(Buckingham
ClevelandSM)
was elected
Vice Chair of the National Board of Trustees for the
National Center for Non-Profit Excellence.
Save
the Date for these Upcoming Presentations:
On August 18-19, 2005,
Gerald B.
Chattman
and
Dale A.
Nowak
(Buckingham
ClevelandSM)
will present
at the OSSA (Ohio Staffing Services Association) annual
convention in Columbus. Mr. Chattman will address
employment law issues and Mr. Nowak will discuss
"Workers' Compensation Fraud and Other White Lies."
Mr. Chattman will also be presenting at the Center for
Non-Profit Excellence workshops on October 19th and
20th. In addition, Mr. Chattman will be speaking at a National
Business Institute Seminar regarding "Employment Issues
for Non-Profits." He will be in Akron on December
15, 2005 and in Cleveland on December 16, 2005.
On October 6,
2005,
Scott Topolski
(Buckingham
BocaSM)
will be
speaking at a seminar entitled, "Breakthrough Collection
Strategies in Florida," sponsored by the National
Business Institute, to be held in West Palm Beach,
Florida.
Out
and About – Recent Presentations:
On June 6,
2005,
Brett L. Miller
(Buckingham
ColumbusSM)
spoke at an Advanced Workers' Compensation seminar
sponsored by Lorman Education Services. His topic
was "What is an injury?" Also, on July 13, 2005,
Mr. Miller presented to the Safety Council of Greater
Columbus on "Real Solutions for Real Costs."
If you are interested in obtaining information on upcoming
seminars or would be interested in having speakers from
Buckingham, Doolittle & Burroughs, LLP make a
presentation to your organization, please contact: Lorna
Henderson, Client Relations Administrator
lhenderson@bdblaw.com or 800.686.2825 ext.
86473. |
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