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By
Tod T. Morrow,
Esq.
Retaliation claims
comprise the fastest growing area of employment
discrimination litigation. According to data from the
Equal Employment Opportunity Commission (EEOC),
retaliation claims rose by an incredible 41 percent from
1996 to 2002. In 2004, 28.6 percent of all discrimination
charges filed with the EEOC involved retaliation charges.
What Is a Retaliation Claim?
An employer engages in unlawful retaliation when it takes
“adverse employment action” (e.g. discharge, discipline or
demotion) against an employee because the employee
engaged in “protected activity.” Protected activity
covers a wide spectrum of conduct. It generally involves
filing an internal or external complaint that is permitted
and protected by law. Common examples include: filing a
safety complaint with the Occupational Safety & Health
Administration (OSHA); filing a discrimination charge with
the EEOC; filing a workers’ compensation claim; requesting
leave under the Family and Medical Leave Act (FMLA); or
calling the Medicare hotline to report improper coding of
claims.
Why Are Retaliation Claims Increasing?
Retaliation claims have become increasingly popular for
several reasons. First, an inordinate number of employees
are entitled to file such claims. Virtually every law
regulating the workplace has an anti-retaliation
provision. The list of such laws is almost endless, and
it keeps growing.
Second, government agencies have encouraged the filing of
retaliation claims by educating workers on their rights.
These agencies often maintain informative and
easy-to-navigate websites that aid employees who want to
complain. In years past, employees did not know where to
go to report violations of the law. Now, the answer to
that question is merely a Google search away.
Third, retaliation claims are fairly easy to prove and
generally result in big verdicts. Juries are intuitively
inclined to believe retaliation claims. In many cases, a
jury will actually reject the underlying claim of
workplace discrimination, but find that the company
retaliated against the complaining party. That is why
plaintiffs’ lawyers love to file retaliation claims.
Tips for Avoiding Retaliation Lawsuits.
Employers can minimize their exposure to retaliation
lawsuits by observing the following rules:
-
Recognize
Protected Activity.
Although there are
numerous anti-retaliation laws, employers should be
familiar with those laws that pertain specifically to
their business. If an employer is uncertain as to
whether an employee has engaged in protected activity,
it should immediately consult with a knowledgeable
employment lawyer.
-
Take All
Complaints Seriously and Investigate Promptly.
In most cases, an
employee need not complain to an outside government
agency in order to be protected under the law; internal
complaints may also be protected. Consequently, it is
imperative that the employer take all complaints
seriously, investigate them promptly, and document its
investigation efforts.
-
Promulgate
Effective Complaint Procedures.
Employers should
promulgate policies that provide employees with an
internal complaint mechanism. Such policies should
identify the persons to whom complaints should be made
and contain anti-retaliation language that gives
employees the right to complain without fear of
reprisal.
-
Routinely
Document Performance Problems for All Employees.
Complaining employees are
often poor performers who complain to obtain job
security. However, if the employer fails to document
performance problems prior to a protected complaint,
subsequent discipline of the complaining employee may
appear to be causally related to the complaint. In many
cases, a whistleblower will prove discrimination by
pointing to favorable evaluations received prior to his
or her registering a complaint.
-
Conduct Exit
Interviews.
Fired employees often file whistleblower or retaliation
complaints after they are discharged. In many cases,
that is the first time the employer learns of the
complaint. To guard against such surprises, employers
should consider using an exit interview questionnaire
that asks departing employees whether they know of any
unlawful conduct.
In conclusion, the
best way to avoid retaliation lawsuits is for employers to
recognize legally protected activity when it occurs. In
addition, employers should implement effective policies
and procedures that protect employees from unlawful
retaliation. Finally, employers should document
performance problems before an employee registers a
protected complaint. This practice will allow the
employer to show that the complaining employee was treated
no differently than any other employee.
_______________________________
Tod Morrow
is a Shareholder and Co-Chair in the Employment & Workers'
Compensation Practice Group. He can be reached at
tmorrow@bdblaw.com
or
330.491.5229.
By
George H. Rosin,
Esq. and
Barbara A. Knapic,
Esq
 If
you’ve been to workers’ compensation hearings at the
Industrial Commission (IC) lately you may have noticed an
increase in the use of computers at the table and the
absence of paper. Well, the IC finally caught up with its
sister organization, the BWC, and completed the transition
to an all-paperless system.
Since the system’s
implementation in late 2005, the only papers available to
a hearing officer at the time of any hearing are those
filed after the last imaged documents viewable on
the IC website. These papers are placed in the familiar
yellow-colored folder. The parties can still submit paper
evidence at the hearing; however, if it is something
already contained in the online file, the hearing officer
will discard the paper copy following the hearing.
Under the new system
all parties and their authorized representatives have
online access to complete workers’ compensation claims
files via the IC’s website by clicking the “ICON” tab.
ICON is a secure site, accessed through a user name or
representative I.D. number and password issued by the IC.
Follow the screen prompts to access the claim file. A
helpline is also available. In addition, a party or
authorized representative may file an appeal online.
One of the problems
with paperless hearings has been how the documents are
indexed when imaged. The IC has been using the BWC’s
indexing system, which is not particularly “hearing
friendly.” However, according to Tom Connor, IC Director
of Hearing Services, documents filed directly with and
imaged by the IC will be indexed using the IC’s own
system, making the documents easier to identify. Until
then, preparing for paperless hearings can present a
challenge.
An advantage to the
system is that you can review what has been designated to
be in the “Hearing Folder” (which the hearing officer uses
at hearing), and you can select other documents to be
added to it. The claim file documents are in white in the
“All Documents Folder,” whereas documents copied to the
Hearing Folder are highlighted in blue. Placement in the
hearing file is in real time. The IC, according to Mr.
Connor, is establishing an 800 fax number for filing
documents, and those documents will be imaged directly
into the claim file. That fax number should be up and
running within the next few months.
Another advantage to
the paperless system is that the files can be reviewed
anywhere you have a high-speed Internet connection – at
home, in your office or even in a coffee shop with wi-fi
access. Files are available for review virtually any time
other than 6:30-8:30 p.m. on weeknights, when the system
is down for updating. According to Mr. Connor, that time
is being moved back to 9:00-11:00 p.m., and the IC is
trying to shorten the time the system is inaccessible.
It is clear that paperless files are here to stay.
Because all documents filed with the two agencies are
shredded after imaging, originals and stamped copies
should be kept for your own records and only copies should
be filed with the Industrial Commission. The Industrial
Commission has promised to continue evaluating, updating
and improving the system. We will keep you informed of the
implications of any further changes. For now, we simply
recommend that you retain original documents and stamped
copies for your files.
_______________________________
George Rosin
is a Partner in the Employment & Workers'
Compensation Practice Group. He can be reached at
grosin@bdblaw.com
or
330.258.6428.
Barbara A. Knapic
is a
Partner in the
Employment & Workers'
Compensation Practice Group. She can be contacted at
bknapic@bdblaw.com
or
330.491.5237.
By
Robert C. Meyer, Esq.
 On
Wednesday, December 28, 2005, the Ohio Supreme Court, by a
5-2 vote, affirmed the long-standing principle that
psychological trauma unaccompanied by a physical injury is
not compensable under the Ohio Workers’ Compensation Act.
In McCrone v Bank One Corporation, (2005) 107
O.St.3d. 272, the Court upheld the constitutionality of
R.C. 4123.01(C)(1), which provides that psychological
injuries without a related physical injury are outside the
scope of Ohio Workers’ Compensation Law. This case was
argued on behalf of the employer by Robert C. Meyer of the
Canton office of Buckingham, Doolittle & Burroughs, LLP.
The Supreme Court
rejected the constitutional challenges raised by the
claimant and stated that the statute was clear and
unambiguous in its denial of purely psychological
injuries. The court further called into question its
prior ruling in Bailey v Republic Engineered Steel Corp.
(2001), 91 O.St.3d. 38, which previously permitted a
psychological claim where there was no physical injury to
the psychological victim but a physical injury to a third
party within the appreciation of the psychological
victim. Lastly, The court stated that it was the duty of
the legislature to write the statutes, and if purely
psychological injuries were to be covered under workers
compensation law, the Legislature would have to rewrite
the statute.
This decision brings certainty to an area of the law that
recently had become ambiguous. Clearly, now, purely
psychological injuries are not compensable. A physical
trauma, however slight, must be alleged and proved before
a psychological claim can be presented. Any change in the
law must now come from the General Assembly.
_______________________________
Bob
Meyer
is a Shareholder in the Employment & Workers'
Compensation Practice Group. He can be contacted
at bmeyer@bdblaw.com or
330.491.5227.
By
Douglas J. Paul,
Esq.
 In
a recent unanimous decision, the United States Supreme
Court resolved a conflict among the Circuits in connection
with the “numerosity” requirement of Title VII of the
Civil Rights Act. Title VII is the heart of the federal
statutes that prohibit “employers” from discriminating
against their employees for reasons of race, color, creed,
national origin, sex and religion. The federal statute,
by its terms, defines an “employer” as a person who “has
fifteen or more employees.” Thus, small employers are not
covered by the federal discrimination statute because of
this “numerosity” requirement.
It had been widely held by several of the Circuit Courts of Appeal,
including the Sixth Circuit, that the “numerosity”
requirement was jurisdictional and that the Federal Courts
did not have jurisdiction over a claim against an employer
with fewer than 15 employees. Other Circuits had held
that the requirement was not jurisdictional but was an
issue of proof in the case. In the case of Arbaugh v.
Y & H Corporation, 126 S. Ct. 1235 (2006), the U.S.
Supreme Court resolved the conflict, holding that the
15-person numerosity requirement was not jurisdictional
but was an essential element of a plaintiff’s case.
Jennifer Arbaugh sued her former employer, charging sexual harassment
under Title VII and various state statutes. Following a
jury trial there was a verdict for the plaintiff. After
the verdict, the employer filed a motion asserting that,
since the employer did not have the requisite 15
employees, the Federal Court was without jurisdiction and
that the entire case had to be dismissed. The trial court
agreed, taking away the jury’s verdict. The Court of
Appeals for the Fifth Circuit affirmed. Because other
Circuits held to the contrary, the United States Supreme
Court granted certiorari to resolve the conflict in the
Courts of Appeal.
The Supreme Court reviewed the history of the statutes involved and did
not find a clear indication from Congress that it was
their intention to make the numerosity requirement
jurisdictional. The Court made it clear that Congress had
the power to do so if it wished, but that the law as
written was not jurisdictional.
While the case turned on a technical legal distinction, there are
several reasons why this case is significant – why it
matters that the numerosity requirement is not
jurisdictional. First, lack of subject matter
jurisdiction can be raised at any time, even after trial
and entry of judgment. The defendant’s failure to
challenge the issue of the application of the statute to a
small employer prior to the trial, however, could result
in a waiver or forfeiture of the defense.
Second, at times there is a factual dispute as how to properly number
the employees in the defendant’s business. To the extent
that the numerosity requirement is now just a part of
proving the claim, such a factual dispute could be decided
by a jury, instead of summarily by the judge.
Third, state law claims are often joined with federal claims in the
same lawsuit in federal court. Even if a defendant were
successful in having the federal claim dismissed for
failure of the numerosity element, the Federal Court would
generally retain jurisdiction over the state causes of
action. Dismissal of the federal claim on a jurisdictional
basis, on the other hand, still requires the Court to
dismiss the case in its entirety.
It will be important for defense lawyers be sensitive to the numerosity
issue and explore it with their clients early on in the
litigation process. Plaintiffs should presumably be
pleading and attempting to prove this element. If they
don’t, employers will have to deal with the issue on a
motion for failure to state a claim upon which relief can
be granted.
Finally, it is likely that other numerosity requirements in employment
law, such as the one contained in the FMLA, will also be
considered to be non-jurisdictional.
_______________________________
Doug Paul
is a Shareholder in the Employment & Workers'
Compensation and Litigation Practice Groups. He can be contacted
at dpaul@bdblaw.com or
216.615.7340.
Save
the Date for these Upcoming Presentations:
June 8
-
Scott Topolski
(Buckingham
BocaSM)
will be
presenting at a NBI Seminar in West Palm Beach, Florida.
His topic will be "Successfully Collecting Debts and
Judgments."
June 15
-
Denise J. Bleau
(Buckingham
BocaSM)
will be
speaking at a Lorman Education Services Seminar in West
Palm Beach, Florida. Her topic is "What You Need to
Know About Public Records and Open Meetings."
June 26
-
Gerald B.
Chattman
(Buckingham
ClevelandSM)
will be
speaking at the National Business Institute Seminar
called "The New Age of Corporate Governance for
Nonprofit Organizations."
Out
and About – Recent Presentations:
Gerald B.
Chattman
(Buckingham
ClevelandSM)
spoke at the
Center of Nonprofit Excellence Seminar. His topics
was entitled, "Forming a New Nonprofit Organization."
Also, Mr. Chattman was interviewed by Fox I-Team
Reporter, Lorrie Taylor. The topic of his
interview was "Real Estate Transactions Regarding Senior
Citizens Who May Be of Impaired Capacity and What
Constitutes a Legal and Binging Contract."
Barbara A. Knapic
(Buckingham
CantonSM)
made a
presentation to Gallagher Bassett's claims adjusters for
Eaton Corporation. The topic of the presentation
was "The Care and Feeding of Your Workers' Compensation
Attorney."
Brett L. Miller
(Buckingham
ColumbusSM)
was a featured speaker for the Annual Education Day
sponsored by the Central Ohio Self Insurers Association
(COSIA). His topic was "Legislative/Industrial
Commission Policy Update."
Tod T. Morrow
(Buckingham
CantonSM)
spoke at the
Ohio Safety Congress & Expo. His topic was
"Workers' Compensation and 'The Art of War':
Successful Strategies for Controlling Workers'
Compensation Costs." Mr. Morrow also made a
presentation to the Stark County Safety Council.
He discussed "How to Manage Employees Without Fear of
Safety-Related Whistleblower Lawsuits."
Dale A.
Nowak
(Buckingham
ClevelandSM)
spoke at
Cleveland State University Cleveland-Marshall College of
Law. His topic was "Discovery Strategies."
Susan C. Rodgers
(Buckingham
AkronSM)
made a
presentation to the Stark County Human Resource Managers.
She discussed "Managing Employee Leaves ADA, FMLA, and
Workers' Compensation.
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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