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The FAIR Act Would End Forced Arbitration and Help Workers Protect Their Rights

Laura Wilson

The FAIR Act (The Forced Arbitration Injustice Repeal (FAIR) Act) was recently reintroduced in Congress. If passed, this law would ban mandatory arbitration agreements, which take away the rights of workers and consumers to sue in court or take part in class-action lawsuits. It would allow employees to sue their employers in court in cases of wage theft, harassment, discrimination, or other violations of their employment rights.
Over the past several years, employers have included forced arbitration clauses in employee handbooks, incentive compensation plans, and employment agreements, aimed at preventing workers from going to court if they think their rights have been violated in the workplace. Today, roughly 60 million workers are subject to forced arbitration. Estimates are that by 2024, more than 80 percent of private-sector, nonunion workers will be subject to forced arbitration.
While employers often argue that arbitration is quicker and easier to resolve disputes with their workers, the system puts workers at a real disadvantage. Arbitration is often confidential, making it nearly impossible to track an arbitrator’s record on the decisions he or she has made. Confidentiality also protects employers from exposing their illegal actions. Arbitration rules have few legal safeguards that protect individual workers, including limits on the ability to obtain key evidence needed to prove their claims. Arbitration can also include high fees and “loser pays” rules that make it too expensive for most workers to go through the process.
According to Jeffrey A. Mittman, Executive Director of the National Employment Lawyer’s Association, forced arbitration “strips vulnerable workers of the right to enforce laws that were designed to protect them when they are victims of illegal treatment in the workplace. Forced arbitration favors employers and coerces workers into losing either their rights or their jobs.”
The FAIR Act would prohibit forced arbitration for employment, consumer, antitrust and civil rights disputes. It would keep companies from forcing individuals, workers, and small businesses to agree to be bound by arbitration before a dispute has occurred. Instead, workers would have the choice to agree to arbitration after an employment dispute arises. In addition, the FAIR Act would not affect collective bargaining agreements that require arbitration between unions and employers.
The FAIR Act has overwhelming public support. According to one national survey, 84 percent of the public supports federal legislation that ends the practice of forcing workers and consumers into arbitration. The FAIR Act is good for workers because it will ensure that they can protect their rights in court if their rights are violated at work. You can support passage of the FAIR Act by contacting your Ohio Senators and Congressional Representatives.

Employment laws covering worker’s rights are always changing. Our attorneys work constantly to stay up to date with the latest changes and are here to help workers protect their rights.
Find more information on the FAIR Act here.


Personal Injury Claims During a Pandemic and Beyond: Snow & Ice; Nothing is Nice

Austin LiPuma

It was my second year of law school and I, admittedly, had waited to catch the bus until the absolute last second. As the clock ticked down, I bundled up as quickly as I could, grabbed my book-bag weighing approximately the size of an adolescent and sprinted for the door. No sooner had I ripped open the entrance door to my apartment complex when it happened.

I was suddenly airborne. It was one of those falls where you have sufficient time to contemplate all of life’s meaning while still afloat. I landed. Hard. My back was throbbing and yes, I missed the bus. Despite the nature of my profession, I try not to be too litigious but of course, my mind immediately thought do I have a claim?

As we continue to slog through the world nearly a year into a pandemic, winter decided to rear its ugly head in full force over the past week across the country. Many recent intakes I’ve fielded relate to my exact scenario: I slipped and fell on ice. What are my options?

Ohio’s Winter Rule:
The options for me in that moment and for many that experience this unfortunate event are limited. Ohio has adopted an austere, general rule often referred to as the “winter rule.” Effectively, this means that a property owner does not owe a duty to a person on its premises who slipped and fell due to the natural accumulation of ice. This is tethered to a larger, overarching rule of law called the “open and obvious” doctrine, which is in the name. Courts generally view it as a known risk to step outside in Ohio in the wintertime and potentially slip then fall.

With that said, like anything with the law, there is often an exception(s). This is true regarding an unnatural accumulation of snow and ice. For instance, a couple years back I had a client who slipped at an apartment complex similar to mine. However, in this instance, an improper drainage system caused an unnatural build up of ice to occur. Similarly, there have been scenarios where a property owner unreasonably clears snow in piles that cause an injury. While these cases are not always a dispositive avenue, they at least have a tenable theory of liability.

As always, the law is often applied based on the specific set of facts. It is always a best practice to at least determine if there’s a potential claim by calling in. Once I got back to the couch and had a few ibuprofen in me, the first call I made was to my boss, a personal injury attorney, at the time. Unfortunately, he broke the “winter rule” to me. As we continue to plow through this winter please stay safe, warm, and alert.


ALERT: Changes to Ohio Law Shortens Deadline for Filing Employment Discrimination Claims

Laura Wilson

In January, Ohio passed a new law known as the Employment Law Uniformity Act. This law makes important changes to Chapter 4112, Ohio’s statute that outlaws employment discrimination. The new law makes several changes including shortening the time in which an employee can bring a workplace discrimination action from six years to two years. These changes go into effect on APRIL 13, 2021.
Under current law, a worker who has been discriminated against because of race, gender, disability, or other kinds of illegal discrimination (except for age), usually has up to six years from the time of the discrimination to file a lawsuit. Once this new law goes into effect on April 13, 2021, workers will be required to go through an administrative process before they can bring a lawsuit, and all discrimination claims must be filed within two years, rather than within the six-year limit that applies to most claims under current law.
Failing to file within the right time limits can mean a worker loses their claim. Any worker who thinks they may have a workplace discrimination claim should consult an attorney right away to make sure they can protect their rights. The employment attorneys at FMR work hard to keep up to date on changes in the law and are here to help.


The Truth About Nursing Homes and COVID-19

Mark Napier

NY Attorney General Letitia James, a Democrat, released a report this past Thursday that criticized NY Governor Andrew Cuomo, also a Democrat, for grossly underreporting the New York state nursing home COVID-19 deaths by the thousands. A few hours after this report, NY state health officials added more than 3,800 nursing home resident deaths to their previous tally.

The nursing home owners and operators in this country had plenty of warning to prepare for the pandemic coming to the US. In late Feb. 2020, a Kirkland, WA long-term care facility reported many of its residents and staff had COVID-19 symptoms and the first US resident to die of COVID was a resident in its nursing home. This should have been an immediate wake-up call to all nursing home owners and operators throughout the country that a foreseeable pandemic was coming and they needed to prepare with more PPE, staffing, and infectious disease safeguards.

The standard model for the safe operation of a nursing home is prepare, assess, plan, implement, and monitor. If a nursing home correctly follows these steps then there is no negligence and no lawsuit.

But, many nursing home owners and operators in this country who grossly failed to protect their residents and their direct care employees from COVID-19 were wholly unprepared. They knew the pandemic was coming, but they did business as usual. These same nursing homes for years failed to comply with recognized standards of care and regulations with respect to infectious diseases. Sadly, their noncompliance was exposed by COVID-19.

And for the final insult to families who lost loved ones due to nursing home noncompliance, many state legislatures bought the lies by the nursing home owners and operators, and their insurers, that this was all unavoidable, and they must have immunity from suits related to COVID. Shame on the legislators like in Ohio who bought into these lies and granted immunity from very legitimate negligence lawsuits.


Ohio Employers Cannot Use Employee Handbooks to Shorten Time Limits for Their Workers to File Discrimination Claims

Laura Wilson

On January 15, 2021, the Sixth Circuit Court of Appeals, the federal court that hears appeals from lower federal courts in Ohio, Kentucky, Tennessee and Michigan, issued a decision that prevents employers from using employee handbooks and similar employee agreements to reduce the time within which their workers can sue for workplace discrimination.
In a case filed in an Ohio federal court, Thompson v. Fresh Products, LLC, et al., the plaintiff sued her former employer raising several claims, including claims of discrimination under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), as well as similar claims under Ohio law.
The employer argued that the suit was time barred because it was filed more than six months after she was laid off, and she had signed an Employment Handbook that said any lawsuits against the company had to be filed within six months.
The Court allowed the six month limit to kick out the plaintiff’s claims brought under Ohio law, but ruled that the Handbook could not prevent her from bringing her federal claims to court. The Court found that the federal laws that protect workers from workplace discrimination based on factors such as race, gender, disability, and age create core rights that cannot be waived or signed away. Thus, a worker’s right to bring a discrimination claim within the time period set out in the federal laws cannot be changed by an Employee Handbook or other similar agreements between a worker and her employer.
This is a big win for workers in Ohio and the other states in the Sixth Circuit. For years, many employers have included these kinds of time limit clauses in Employee Handbooks and other agreements that workers have to sign when they are hired. Companies have tried to limit lawsuits to shorter periods than allowed under the law to prevent employees from bringing claims when they have been the victims of workplace discrimination. Now the Court has made it clear that in Ohio, and the other states in the Sixth Circuit, employers can’t prevent a worker from bringing a discrimination lawsuit that is properly filed with the time set out in the federal anti-discrimination laws themselves (generally 300 days in Ohio).
One question this case did not answer is whether an arbitration agreement can shorten the time a worker has to bring forward a discrimination complaint. Employment law can be complex and is constantly changing. It is important the workers consult legal counsel to help sort through these complicated issues.

See a copy of the Sixth Circuit opinion.