Pregnant Welder Sues Employer for Discrimination

On August 10, 2010, the Sixth Circuit Court of Appeals issued its decision in Spees v. James Marine, Inc., which affirmed summary judgment in favor of the employer in part.

The plaintiff, Heather Spees, discovered that she was pregnant shortly after being hired as a welder for James Marine, Inc. Ms. Spees’ physician informed her that she could continue to work as a welder as long as she wore a respirator. Because her employer did not believe that she could continue to work safely as a welder, Ms. Spees was instructed to return to her physician and obtain a more restrictive note. As a result, she was reassigned to a light duty position in her employer’s tool room. Two months later, Ms. Spees was placed on bed rest for the duration of her pregnancy. Because Ms. Spees’ had not yet worked 90 days for her employer, she was entitled to only two weeks of approved leave and was not eligible for FMLA leave. When her employment was terminated, Ms. Spees filed suit alleging pregnancy and disability discrimination.

The district court granted summary judgment to the employer for all of Ms. Spees’ claims. However, the Court Appeals only affirmed the district court’s judgment in regards to Ms. Spees’ claims for the termination of her employment. The Court agreed that her employment termination was based on a combination of her being unable to return to work and her lack of available medical leave, not upon her pregnancy.

The Court of Appeals reversed the district court’s judgment regarding to Ms. Spees’ relating to her reassignment to the tool room. The Court found that the transfer to the tool room did constitute an adverse employment action, even though Ms. Spees was paid the same salary. The Court noted that a position in the tool room did not require any specific training, unlike the welder position. The Court also noted that Ms. Spees was assigned to the night shift, which adversely affected her ability to raise her daughter as a single mother. The Court found that there was evidence demonstrating that Ms. Spees’ pregnancy was at least a motivating factor in the decision to transfer her to the tool room. Finally, the Court found that Ms. Spees could make out a prima facie case that her employer regarded her as having a disability when making the decision to transfer her to the tool room.

Author: Ryan Bonina
            614.723.2012
            rbonina@ralaw.com

Employment Law & Workers' Compensation - Legal Update 2010

The Employment Services Group at Roetzel invites you to our annual complimentary seminar to discuss current issues affecting employers and recent developments in labor and employment law. This program is designed to provide practical guidance on how such issues influence your employment decisions and impact business operations. Join human resource professionals, in-house legal counsel, office administrators, risk management professionals and workers' compensation specialists at one or more of our programs in Ohio.

PRESENTATION TOPICS
Sexual Harassment: Policies and Enforcement - Learn the types of prohibited harassment in the workplace as well as recent sexual harassment litigation and case developments. The increasing number of claims filed by males and the issue of same-sex harassment will be addressed. We will cover the need and importance of re-focusing harassment training beyond simply conduct that is considered to be "motivated by sexual desire" to encompass conduct often dismissed as "locker room behavior" or "horse play.

Occupational Safety and Health Administration (OHSA) and Workplace Safety Update - This session will review OSHA's increased enforcement efforts under the Obama administration and its corresponding implications for employers. The proposed new safety standards currently making their way through OSHA's rulemaking process will also be covered.

Workers' Compensation: The Process from Start to Finish - Get an in-depth perspective of the workers' compensation process beginning with pre-injury action items through claim containment, while introducing relevant case law throughout as applicable. This session will also address:
  - Actions that can be taken before an injury occurs
  - What to do when an injury happens
  - Investigating the claim including its certification or rejection
  - The Industrial Commission hearing process and containment issues

Handbooks and Policies You Should Have - What you should consider when tailoring a handbook to fit your company's needs - from the general to the specific, including drafting language to preserve the sanctity of your company while avoiding litigation. Recent electronic communication trends, dress code, attendance policy, and what to do when you want to update or change your policy will also be discussed.

Fair Labor Standards Act (FLSA) Exemptions - Exempt vs. Non-Exempt: Learn how to comply with FLSA exemptions, including current record keeping requirements and proposed Department of Labor (DOL) rules regarding additional requirements. We will share current trends in FLSA enforcement and litigation, including how technology impacts hours worked and the DOL's focus on the classification of workers as independent contractors.

AGENDA
1:00 - 1:30pm - Registration
1:30 - 5:00pm - Program
5:00 - 6:00pm - Cocktail Reception**In lieu of a cocktail reception, the Toledo seminar will include an extended break with appetizers for networking purposes and will conclude at 5:20pm.

LOCATIONS
Columbus - September 9
Hilton Columbus at Easton
3900 Chagrin Drive
Columbus, OH 43219
614.414.5000

Akron - September 22
John S. Knight Center
77 East Mill Street
Akron, OH 44309
330.374.8900

Toledo - September 29
The Pinnacle
1772 Indian Wood Circle
Maumee, OH 43537
419.891.7325

Independence - October 14
Embassy Suites Cleveland-Rockside
5800 Rockside Woods Blvd.
Independence, OH 44131
216.986.9900

Cincinnati - October 20
Sharonville Convention Center
11355 Chester Road
Sharonville, OH 45246
513.771.7744

RSVP by September 2. Go to www.acteva.com/go/roetzel to register online. Space is limited. For additional information or to RSVP by phone, call Robyn Rea at 330.762.7662.

Break Time for Nursing Mothers Required under the FLSA

In a previous blog article posted September 22, 2009, Lactose Intolerant?, we reported that the Supreme Court of Ohio ruled that an employee terminated for taking unauthorized breaks to pump breast milk was not discriminated against on the basis of pregnancy when the former employee's deposition testimony revealed that the employer did not know the reason for her unauthorized breaks.
However, the Patient Protection and Affordable Care Act (PPACA), signed into law on March 23, 2010, requires unpaid break time for nursing mothers. The PPACA amended Section 7 of the Fair Labor Standards Act (FLSA).

In July 2010, the U.S. Department of Labor issued Fact Sheet #73 titled, "Break Time for Nursing Mothers under the FLSA" to provide general information on this requirement.

The general requirements include "reasonable break time for an employee to express breast milk or her nursing child for 1 year after the child's birth each time such employee has need to express the milk" and "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk". Employers must provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother.

Only non-exempt employees are entitled to breaks to express milk under the Fair Labor Standards Act, although individual state laws may impose such requirements.

See a full copy of Fact Sheet #73.

Author: Ann Eberts
            330.849.6649
            aeberts@ralaw.com

FMLA Changes Son/Daughter Definition

An Administrator's Interpretation Letter on June 22, 2010 from the Department of Labor has clarified the definition of son or daughter as it applies to an employee taking FMLA leave to care for a newborn, newly placed or sick child. Using the portion of FMLA referring to the term "in loco parentis," the DOL's letter states that one does not have to have a biological or legal relationship with the child to be able to take FMLA leave. One must look at factors like the age of the child, the degree to which the child is dependent on the person providing care, the amount of support provided and the extent to which duties commonly associated with parenthood are exercised.

The letter specifically refers to an employee caring for his or her unmarried partner's child, as well as a grandparent, aunt or uncle, as examples of those who could stand "in loco parentis," and also says that an employee must only provide "a simple statement asserting that the requisite family relationship exists" in order to support a request for leave. Employers who have questions about challenging a request for FMLA leave under these circumstances are urged to contact the lawyers of the Roetzel & Andress Labor and Employment Group if there are any questions.

Author: Doug Kennedy
            614.723.2004
            dkennedy@ralaw.com

New Proposed Rules Governing Reactivation of Claims and Payment of Amputation/Loss of Use Awards

The Ohio Bureau of Workers’ Compensation announced proposed amendments to Ohio Administrative Code (OAC) sections 4123-3-15 and 4123-3-37. The amendments would increase the time before a claim becomes inactive from 13 months to 24 months. The amendments would also change the procedure for amputation/loss of use awards. The revised rule would permit payment of the award based on information contained in the claim file (such as the initial injury report) and change the method of payment to pay the award as a lump sum.

According to the Bureau of Workers’ Compensation, the current 13 month timeframe in OAC 4123-3-15 for a claim to become inactive is too short. After an evaluation, the Bureau determined that a 24 month timeframe will result in increased system efficiency and reduce overall administrative resources necessary to review and respond to reactivation requests.

The Bureau of Workers’ Compensation is also eliminating language in OAC 4123-3-37 regarding lump sum advancements in permanent partial awards as these are to be addressed under a new section, OAC 4123-3-15(C). This section would allow for payment of an award for amputation or loss of use of a body part to be paid to an injured worker for the full amount of the award, as opposed to the current bi-weekly payments. This section has already been revised since its initial draft to allow for continued bi-weekly payments while an order to pay the award is on appeal. One issue which has not yet been resolved, and which may be a major sticking point with the proposed rule, is the conflict the new OAC 4123-3-15(C) would have with Ohio Revised Code Section 4123.57(B), which continues to mandate that such awards be paid out on a weekly/bi-weekly basis.

As developments arise regarding the proposed amendments, we will provide further information and guidance to assist you. Please contact any of our offices to discuss this matter further with one of our workers’ compensation attorneys.

Author: Kevin Cooper
            419.254.5257
            kcooper@ralaw.com

Department of Labor Determines Employers Must Compensate Unionized Employees for Time Spent Changing

The Department of Labor (DOL) issued an Administrative Interpretation on June 16, 2010, requiring employers to compensate unionized employees for putting on and taking off protective equipment that is “required by law, by the employer, or due to the nature of the job.” Section 203(o) of the Fair Labor Standards Act permits employers not to pay employees for time spent changing “clothes” if payment is excluded under the terms of a collective bargaining agreement or barred by the custom or practice. The DOL’s Administrative Interpretation determined that protective equipment is not “clothes” under this exception.

The DOL’s determination reinstates its position taken from 1997 through 2001. In 2002, however, the DOL issued an Opinion Letter determining that “clothes” included protective equipment. The DOL’s latest interpretation is in line with court decisions from several federal courts.

The DOL went a step further and determined that putting on protective equipment may be a principal activity. The practical impact is that when an employee changes into protective equipment, this may mark the beginning of the workday and count as compensable time. In short, once an employee changes into protective equipment, you may be required to compensate them for subsequent activities, such as walking to their work station. Regardless of the terms of the collective bargaining agreement, employers must compensate employees for adding and removing protective equipment if that equipment is required by law or required by the employer.

Author: Jon Secrest           
            614.723.2029
            jsecrest@ralaw.com

Fourth Amendment Does Not Violate Police-Department's Search of Employee Text Messages

In a previous blog article posted January 8, 2010, Does the Fourth Amendment Protect Text Messages?, we reported that the United States Supreme Court granted a petition for certiorari in City of Ontario v. Quon, a Ninth Circuit Court of Appeals case in which the Circuit Court held that Police Sergeant Quon's Fourth Amendment rights were violated when sexually explicit text messages sent to and from his department-owned pager were accessed by the City.

On June 17, 2010, the United States Supreme Court reversed the Ninth Circuit Court of Appeals' decision and held that the City of Ontario did not violate Quon's Fourth Amendment rights by conducting a search of his text messages. In its decision, the Court stopped short of deciding whether Quon actually had a reasonable expectation of privacy in his text messages.

To keep its holding narrow and avoid far-reaching implications, the Court assumed Quon had a privacy expectation and that the Fourth Amendment applied. Despite this assumption, the Court held that Quon's privacy rights were not violated because the search was justified by a legitimate work-related reason, and the search was within scope. The City's work-related reason was to determine whether the character limit in its wireless contract was adequate to meet its needs when the City noted repeated overages. Specifically, the City wanted to know if officers were being forced to pay out of their own pockets for work-related expenses, or if the City was paying for extensive personal communications. With respect to Quon, the search was not found to be excessive because his message transcripts were deemed an efficient and expedient way to determine which factor caused his overages. Although Quon occasionally exceeded his monthly allotment, transcripts were only reviewed for two months and all messages sent while off-duty were redacted.

The Court discussed the City of Ontario's policy that employees had no expectation of privacy in messages transmitted on department-owned pagers, however, it also stated that a determination would need to be made whether that policy was overridden by management when arrangements were made for officers to pay for their overages rather than having their text messages audited. The Court did not answer this question because the case was resolved the case on other grounds. Although private employers are not bound by the Fourth Amendment, this is a reminder to all employers that employment policies, even well-drafted ones, can be undermined and even become ineffective when not properly enforced.

Author: Ann Eberts
            330.849.6649
            aeberts@ralaw.com