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ALERT: OHIO LEGISLATURE PUSHING FOR NEW IMMUNITY LAW THAT PUTS OHIO EMPLOYEES AT RISK

Laura Wilson

Two companion bills, SB 308 and HB 606, are under consideration in the Ohio House and Senate.  Fast-track hearings on these bills are set for Wednesday, May 27, 2020.  The bills say businesses can’t be held liable for illnesses or death arising from what they did or did not do during a declared disaster.  The proposed law does not explicitly mention COVID-19, making it apply to any illness and any disaster including events like tornadoes, floods, fires or other emergencies not related to COVID-19.

So far these bills have not received much public input. This is very concerning because this legislation would make it very difficult to hold bad actors accountable during any state of emergency in Ohio.  HB 606 and SB 308 are extreme measures that harm Ohio citizens and allow businesses to injure and kill people with no liability.  At a recent Senate hearing on SB 308, the bill’s sponsor admitted that as the law is written, if a business reopens and ignores Ohio Department of Health and CDC guidance by not limiting customers inside, not enforcing social distancing, not requiring masks for employees, or failing to offer hand sanitizer and soap, the company would still be immune from lawsuits.

The provisions of the proposed law include:

  • All health care providers are exempt from lawsuits and from professional discipline for all negligent and reckless acts taken, or not taken, because of a disaster or emergency.

The law is written so broadly that if a physician is drunk during a procedure to put a COVID-19 patient on a ventilator, and injures him or her, the patient cannot sue the doctor.  Not only is the injured patient prevented from bringing suit for his or her injuries, but under the law, the medical board would not be allowed to investigate or issue any professional discipline to that doctor.  This shield from liability even applies in places that care for our most vulnerable Ohioans, like nursing homes, adult day care centers, and residential homes that care for people with physical and mental disabilities.

  • Businesses cannot be held responsible for the spread of a coronavirus during the disaster because the proposed laws bans lawsuits regarding exposure to any illness.

This lawsuit ban applies whether the business follows recommended safety guidelines or not. That means that a business that intentionally ignores the recommended safety guidelines cannot be held accountable if a customer or employee contracts an illness.  So, for example, if a grocery store sells lettuce tainted with e-coli after a recall has been issued, and the contaminated lettuce is sold during a disaster or emergency, the business could not be sued for selling the recalled lettuce knowing that it will make customers sick.

The law would also protect employers from suit for recklessly endangering the health and safety of their employees, forcing employees to choose between keeping their jobs and keeping themselves and their families safe. The Workers Compensation system will not effectively protect employees from many potential illnesses like COVID-19.  This part of the law means greater harm for people with disabilities and unrelated health problems, the elderly, and minorities and low-income populations who are all at greater risk of severe long-term illness or death if exposed to any illness.

  • Under the Ohio Senate version of the law, all essential businesses such as grocery stores, pharmacies, manufacturers of PPE, meat processing plants, etc. are shielded from suit for all negligent and reckless acts or omissions taken, directly or indirectly, in providing its services during any disaster or emergency.

This means the law would shield these businesses from all suits for injuries, even those that are unrelated to COVID-19. This provision is so broad it could even shield employers who punish or fire employees for reporting unsafe conditions.

The bill will be retroactive to December 1, 2019, a completely random date which is more than three months prior to the current state of emergency declared by the Ohio Governor on March 9, 2020.  There is no effective end date for declared disasters and emergencies in this legislation. So, businesses could continue to harm and kill people with no repercussions forever.

While many businesses support the proposed law, they also recognize that the law needs to be amended to offer protection to those businesses that follow the guidelines, not the ones who disregard them. The Buckeye Institute, a conservative think tank, called for changes to require that the legal standard for protection from lawsuits be tied to CDC or state health guidelines. Otherwise, the bill would shield business owners who act badly, who fail to provide proper safety measures for employees, and even reward those who are lax or ignore the recommended protocols.  As currently written, HB 606 and SB 308 put vulnerable Ohioans at serious risk.  These bills need to be amended to protect Ohio’s citizens and not just Ohio businesses.

To contact your Ohio state senator and ask that these bills be changed to protect Ohio workers and vulnerable citizens, you can go to this link to find your senator:  The Ohio Senate District Map

For more information on the proposed law see:

Coronavirus: Lawmakers consider legal immunity for health care, businesses

AARP Opposes Critical Gaps for Nursing Homes in Current Legislation

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Signs That A Layoff in the Age of COVID-19 Might Really Be Age Discrimination

Laura Wilson

The COVID-19 pandemic has brought the U.S. unemployment rate to levels not seen since the Great Depression.  While some parts of the country start to reopen, employers have and will likely continue to sharply trim their workforces.   Large numbers of workers have been laid off in the wake of shuttered businesses and employers who have seen a stark drop in customers and revenue.

While many layoffs may be unavoidable, some employers may use the COVID-19 crisis as a way to target older workers even when layoffs are not necessary.  Older employees often have higher salaries.  Some employers may worry that older workers who may be at higher risk for COVID-19 or may cost them more because of insurance or the need for paid time off.  Some employers might also believe in discriminatory stereotypes and think that older workers are less likely to be able to adapt to remote work and the heavy reliance on technology that comes with working from home.

With the current flood of COVID-19 layoffs, there are some red flags that could point towards an employer who is targeting employees for layoffs because of their age not because the business needs to reduce its workforce. These red flags may include:

  • The number of employees laid off is relatively small for the size of the company but includes many experienced, older, and higher paid employees
  • Younger, less experienced, and less expensive employees are retained and in some cases take over the work of the laid-off, older workers
  • Comments made by decision-makers about the experience level, age, higher salaries, nearness to retirement, etc. of the older employees
  • The employer hires new, younger workers within a relatively short period of time after the older employees are let go

The key federal law that prohibits age discrimination in employment is known as the Age Discrimination in Employment Act (ADEA). It prevents an employer from discharging or otherwise “[discriminating] against any individual… because of such individual’s age.” 29 U.S.C. § 623(a).  In the case of layoffs involving employees 40 or older, the Older Workers Benefit Protection Act (“OWBPA”) applies and requires employers to provide certain basic information about the layoff in writing if the company plans to offer a severance package in exchange for a worker signing a release not to bring an age discrimination case against the company.  Under the OWBPA, the release has to meet these standards:

  • Be in writing.
  • Be written in a manner reasonably calculated to be understood by the employee.
  • Specifically refer to the ADEA.
  • Not require the worker to waive claims that may arise after the date of execution.
  • Be in exchange for something of value in addition to which the employee is already entitled.
  • Advise the worker to consult an attorney before executing the release.
  • Allow the worker 21 days to consider the offer; if the lay-off includes two or more employees who are age 40 or older, the time period to consider the offer increases to 45 days.
  • Allow the worker 7 days to revoke the agreement after execution.

The requirements of the OWBPA and the information an employer must provide can be confusing so it is important to consult an attorney if you have questions or think your layoff may have been rooted in age discrimination.  As always, our attorneys are here to help you navigate these issues.

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Former Female Senior Director of HR for Cincinnati Electronics Wins Reversal of Summary Judgment Decision and New Trial

Katherine Neff

“A great win for courageous women in the workplace” – Kati Neff, Lead Counsel

Alison McKinnon was the Senior Director of HR for Cincinnati Electronics, a division of L-3 Communications, now L3Harris, located in Mason, Ohio. Following Ms. McKinnon’s February 2016 termination, she filed a lawsuit alleging gender discrimination, retaliation for complaining of gender discrimination, and retaliation under the Fair Labor Standards Act (“FLSA”).  We will detail Ms. McKinnon’s FLSA retaliation claim in a separate blog as it is helpful for HR employees who want to know what their rights are when management disagrees with their assessment under the FLSA.  In this blog, we will focus on Ms. McKinnon’s gender retaliation claim.

In late May 2015, Ms. McKinnon approached the Vice President of HR about what she believed was gender-based harassment by one of her colleagues.  Ms. McKinnon also discussed her concerns with her immediate boss, Russ Walker.

Approximately six weeks later, Mr. Walker told Ms. McKinnon that she should start looking for a new job because upper management wanted to get rid of her.  Ms. McKinnon explained to Mr. Walker that she believed she was being targeted because of her gender.  Two days after this conversation, on July 12, 2015, Ms. McKinnon memorialized her late May complaint the VP of HR in an email.

L-3 did not terminate Ms. McKinnon until February 2016.  However, as part of its defense to Ms. McKinnon’s lawsuit, L-3 claimed it made the decision to terminate Ms. McKinnon in July 2015 – before her formal complaint of gender bias.

The District Court dismissed Ms. McKinnon’s FLSA retaliation and gender retaliation claims, believing that L-3 presented sufficient evidence that it had already made the decision to terminate Ms. McKinnon before the District Court believed she formally complained of gender discrimination on July 10 and July 12, 2015.

Ms. McKinnon appealed the District Court’s decision to dismiss her two retaliation claims to the US Circuit Court of Appeals for the Sixth Circuit.

On Thursday, May 14, 2020, the Sixth Circuit reversed the District Court’s ruling on Ms. McKinnon’s gender retaliation claim, remanding the case back to the District Court. The Court of Appeals reasoned that a reasonable jury could conclude that Ms. McKinnon reported gender discrimination on her late May 2015 phone call with the VP of HR, which was prior to the date L-3 purportedly began contemplating her termination.  As a result, Ms. McKinnon will be able to try her gender retaliation claim to a jury at a date to be determined.

Overcoming a District Court’s grant of summary judgment in the Sixth Circuit Court of Appeals is a challenge.  Statistics suggest that the Sixth Circuit’s overall reversal rate in civil cases is only around 12-16%.  Thus, Ms. McKinnon’s success in convincing the Sixth Circuit to reverse the District Court on her gender retaliation claim is a tremendous feat.

Ms. McKinnon is represented by Kati Neff, Erin Heidrich and Randy Freking, but so many FMR team members contributed to this huge win!

See These Articles Covering This Great Win!

L-3 HR Director’s Sex-Based Retaliation Suit Revived by 6th Cir.

6th Circ. Gives Former L-3 Director Another Shot At Firing Suit

 

 

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Sixth Circuit Decision is Win for Workers: Courts, Not Arbitrators, To Decide Whether There is Valid Arbitration Agreement and Burden to Prove Agreement Is on Employers.

Niara Stitt, Law Clerk at Freking Myers & Reul

On April 9, the Sixth Circuit Court of Appeals which covers federal courts in Ohio, Kentucky, Tennessee, and Michigan, ruled in favor of employees facing arbitration demands by their employers. In Taylor v. Pilot Corporation, the class-action plaintiffs brought suit, arguing that their employer violated overtime provisions of the Fair Labor Standards Act (FLSA).

During the lawsuit, the employees filed a motion asking the trial court to require Pilot to turn over information about the date on which each employee was hired. In response, Pilot filed a motion asking the court to force the employees to submit their claims to arbitration. Pilot argued that all the employees had signed arbitration agreements the day they were hired. Arbitration, an alternative dispute resolution format, often favors employers.

The employees again asked the court to make Pilot provide their employment date information to their lawyers so that any employees who did not actually sign the Arbitration Agreement would not be forced to arbitrate. The trial court sided with the employees, requiring Pilot to provide the information.

On the appeal by Pilot, the Sixth Circuit said that it is up to the courts to decide whether the employees entered into an enforceable arbitration agreement before making them go to arbitration. Importantly, the court said that the burden to prove that there was an agreement to arbitrate is on the employer.

The Sixth Circuit ultimately dismissed the appeal brought by Pilot. Because the appeal was based on a discovery issue— where the parties disagreed about what information Pilot had to give to the lawyers for the employees— the Court said the appeal was not from a final decision on the question of whether Pilot could force the employees to go to arbitration. In other words, it was not proper for the Court to hear Pilot’s appeal at this stage of the case.

This case should encourage workers to demand information about their commitment to arbitration. If an employer refuses to share this information, a lawyers for the employee can file a discovery motion asking the court to make the employer turn over this information. When an employer tries to force a worker into arbitration, it is up to the employer to prove to the court that there is a valid agreement to arbitrate entered into by the employee.

For more information on arbitration and its impact on workers, click here.

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Contrasting Standards of Proof for Discrimination Claims

Niara Stitt, Law Clerk at Freking Myers & Reul

After Recently Applying Stricter Standard to Show Race Discrimination in Contracts, U.S. Supreme Court Applies More Moderate Rule for Federal Employees Claiming Age Discrimination

On April 6, the U.S. Supreme Court ruled in Babb v. Wilkie that federal employees are not required to show “but-for” causation in age discrimination claims under the Age Discrimination in Employment Act of 1967 (ADEA). This ruling differs from the rule typically applied, and provides federal workers with remedies such as front pay when they are able to show that age played a role in their employer’s personnel decision.

(As we recently explained in our prior blog here the stricter “but-for” standard was recently applied by the Supreme Court to a case alleging race discrimination led Comcast to refuse to enter into a contract with a minority owned cable network).

In the Babb case, the law states that personnel decisions affecting federal employees who are at least 40 years old must be made “free from any discrimination based on age.” Traditionally a “but-for” standard has been applied – essentially requiring the employee to show that if not for their age, the damaging personnel decision would not have been made. This is the standard that still applies to state, local, and private-sector employees.

The U.S. Supreme Court moved away from the traditional “but-for” rule for federal employees. The plaintiff, born in 1960, alleged that she was denied a promotion, training, and docked holiday pay because of her age and gender. The Court decided that if age plays any role when the ultimate decision is made, age does not need to be the only reason for the ultimate decision. Instead, age has to be a but-for cause of the differential treatment of the federal employee.

These probably sound like the same thing – how can treating an employee differently because of her age be separated from the “ultimate decision” like denial of a promotion or termination? Consider the hypothetical used by the Supreme Court in its decision. Imagine that an employer is deciding to promote Employee A (35 years old) or Employee B (50 years old). Under that employer’s policy, candidates for promotion are given scores based on non-discriminatory factors, but employees over 40 are docked 5 points. If Employee A receives a score of 90, and Employee B receives a score of 85 and then is docked 5 more points, Employee A is promoted. This would constitute “differential treatment,” because it included the discriminatory action of reducing an employee’s score because of her age. The “ultimate decision” to promote Employee A, however, is simply based on the numerical scores.

Ultimately, the Supreme Court’s ruled that in age discrimination cases brought by federal employees under the ADEA, age need only play some role in the “ultimate decision” for age discrimination claims to succeed. Federal employees may have fewer options for relief than plaintiffs who can establish the “but-for” standard, but they are no longer denied relief under the ADEA if the decision is “[t]ainted by any consideration of age.” For federal employees, this means that even if they cannot prove age bias was the sole reason for the ultimate decision of their employer, federal employers will be held responsible if they make employment decisions with age-based bias playing any role in the decision.

For another analysis of Babb v. Wilkie, see the opinion analysis SCOTUS blog.

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