July 26th, 2021 by Laura Wilson
July 12th, 2021 by Rachel Rekowski - Law Clerk at Freking Myers & Reul
On July 13, 2021, the Ohio Department of Job and Family Services (ODJFS), the state agency that oversees the unemployment system in Ohio, announced that unemployment claimants who received notice of a non-fraud overpayment for overpayments that they received at no fault of their own can now request waivers. If a claimant’s waiver request is approved, it would excuse the claimant from repaying those funds to the state. In addition, money will be returned to claimants who qualify for a waiver but who previously repaid the overpayment.
“Federal changes in unemployment rules, criteria, and claims volume resulted in widespread overpayments of benefits across the nation,” Ohio Department of Job and Family Services (ODJFS) Director Matt Damschroder said. “We know that created a tremendous amount of stress for those already struggling, and these waivers will offer relief to individuals with valid unemployment claims whose overpayments were not their fault.”
ODJFS officials have begun notifying individuals, by U.S. mail or electronically, who are potentially eligible and are providing them with detailed instructions for how to apply.
Later this summer, once system programming is complete, the waiver applications will be reviewed, and approved waivers honored.
Notifications are being sent to claimants in the traditional unemployment program and the Pandemic Unemployment Assistance program. If approved, all portions of overpayments could be waived, including the supplemental weekly $600 and $300 payments that were previously available as a result of federal stimulus legislation.
Those claimants who received Trade, SharedWork Ohio, and other types of unemployment benefits also may be eligible for waivers.
Traditional UI- How to Request an Overpayment Waiver
How to Request an Overpayment Waiver in the Pandemic Unemployment Assistance (PUA) System
More information and Frequently Asked Questions about unemployment claims in Ohio
June 24th, 2021 by Spencer Campbell - Law Clerk at Freking Myers & Reul
June 2021 Supreme Court decision – Cedar Point Nursery v. Hassid
In 1975, California became the first state in the nation to grant collective bargaining rights to farmworkers. A few months later, the newly-created agricultural labor board adopted a regulation that allowed union organizers to access farm property in order to educate workers on their union rights. Organizers were permitted to enter worksites in the hour before and after work and during lunch breaks for up to 120 days a year. The regulation was a major victory for the farmworkers’ movement led by Cesar Chavez, who saw meeting with workers in the fields as the only practical way to organize because many agricultural workers are nomadic, poorly educated on their labor rights, and living in remote areas.
In Cedar Point Nursery v. Hassid, the Supreme Court considered whether California’s access regulation violates the Takings Clause of the Fifth Amendment of the Constitution which reads: “Nor shall private property be taken for public use, without just compensation.” Chief Justice Roberts, writing for the majority, held that California’s regulation “grants labor organizations a right to invade the growers’ property,” and therefore, it amounted to a taking of private property without just compensation. The decision favors property rights over the rights of working people to collectively organize. In fact, the majority opinion did not mention the reality farmworkers face if unions cannot reach them in the fields. Many farmworkers will have no way to learn about their labor rights, leaving them vulnerable to abuse.
Why do farmworkers need state labor protections?
The National Labor Relations Act (NLRA) is the federal law that governs collective bargaining, giving most employees the right to join a union and negotiate a contract free from employer intimidation and retaliation. However, when Congress passed the NLRA in 1935, farmworkers were specifically excluded. According to historians, the exclusion of farmworkers (and domestic workers) from the act was motivated by racial animus, as most workers in those jobs were mainly Black and Latino. 86 years later, farmworkers remain excluded from the NLRA.
Congress also excluded farmworkers from the Fair Labor Standards Act (FLSA), which guarantees workers a minimum wage, overtime pay, and other job protections. In 1966, the FLSA was amended to partially include farmworkers in some parts of the law, but farmworkers remain ineligible for overtime pay unless state law requires it.
As a result of these exclusions, farmworkers face brutal working conditions with low pay, and many fear retaliation if they speak up or try to organize. That is why farmworkers rely on states to pass legislation. In states without collective bargaining protections, farmworkers can still form a union, but the employer does not have to negotiate with them and can legally retaliate against workers.
What effect will the Supreme Court decision have on organized labor going forward?
The latest decision from the Supreme Court is no doubt a blow to organized labor and another decision that limits the power of unions. But practically, the Cedar Point Nursery decision seems to only effect California farmworker unions because the access regulation is unique to California.
The law has limited union access to an employer’s property for decades. Generally, employers are allowed to forbid nonemployee union organizers from entering their property, unless the jobsite and employee housing places workers “beyond the reach” of a union’s reasonable communication efforts. Only a small portion of the American workforce qualify as being beyond the reach of a union, like some remote miners and offshore drillers. So, while the recent Cedar Point Nursery decision is unwelcome news and a major loss for California farmworkers, not much will practically change for most unions in the country.
May 17th, 2021 by Laura Wilson
Nearly since the very beginning of college sports, student athletes have had a unique place in the labor market. Before the creation of the National Collegiate Athletic Association (NCAA), colleges were spending massive amounts of money to lure athletes to play on their school teams. In fact, the problem got so bad that student athletes were making more money than professional athletes for a time. College football was known to be especially corrupt and unethical at the turn of the 20th century, which prompted the creation of the NCAA in 1906. Players were paid higher salaries than business executives and would change teams from week to week based on who paid them the most. This picture of college athletes making fistfuls of cash playing an unregulated game stands in stark contrast to the world of college sports that we see today.
In the modern landscape of college athletics, the NCAA exercises broad control over how schools are allowed to compensate and compete for student athletes. The NCAA’s rules on compensation are strict and have been criticized for years. Until recently, NCAA rules restricted schools to offering only scholarship money to student athletes. Additionally, student athletes were barred from profiting off of their name or likeness while competing for an NCAA team. But on Monday, June 21, 2021, the United States Supreme Court took up the question of the NCAA’s broad authority over student athlete compensation. The Court rendered a unanimous decision that loosens the NCAA’s ban on any compensation for student athletes beyond scholarships.
The case was brought by a collection of student athletes against the NCAA and 11 Division-I conferences. The Court’s decision came in two parts. First, the Court found that the NCAA’s rules surrounding scholarship and direct compensation to athletes are allowed, because they serve to draw a line between college and professional sports. But the Court ruled in favor of the student athletes in the second part. The Court held that the NCAA cannot restrict the extent to which schools offer student athletes education-related benefits, such as computers and other technology for school, internships, and tuition for graduate school.
While the Court punted on the question of whether student athletes could be paid directly, its decision provides a small win for this unique labor force. While we won’t see Division-I quarterbacks making millions of dollars while still in school anytime soon, we may see schools competing for athletes by offering textbooks, tutoring, or study-abroad experiences. For now, student athletes can directly benefit a little bit more from the value that they bring to their schools, but the “amateur” nature of college sports remains under the tightfisted supervision of the NCAA.
For more information read:
National Collegiate Athletic Association, Petitioner v. Shawne Alston, et al.
May 12th, 2021 by Laura Wilson
Ohioans receiving unemployment benefits will have to resume searching for work if they want to continue to collect their benefits. On May 10, Ohio Department of Job and Family Services (ODJFS) Interim Director Matt Damschroder announced the change that goes into effect beginning the week of May 23, 2021.
From mid-March 2020 through Dec. 1, the federal government authorized states to waive work-search requirements because of the pandemic. On Dec. 6, the Ohio Department of Job and Family Services resumed the work-search requirement for new unemployment claims, while exempting existing claims.
“Now that Ohioans have had the opportunity to receive the COVID-19 vaccine and can safely return to work, it only makes sense that we restore work-search requirements for everyone,” said Governor Mike DeWine. According to Lt. Governor Jon Husted, “Now that all Ohio adults have access to the vaccine, it’s time to return to the traditional work requirements.”
Allowable work-search activities include applying for a job, attending a resume-writing course, or creating and maintaining a reemployment plan on OhioMeansJobs.com. Under Ohio law, some individuals will be exempt from conducting work-search activities, including employees on a temporary layoff of 45 days or less, and individuals in approved training.
Also, workers can meet their weekly work-search requirement if they are members in good standing with a union hiring hall that refers its members to jobs. For workers in approved school or training, their work-search requirement may be considered met if they are attending all classes and making satisfactory progress.
ODJFS has announced it will notify unemployed Ohioans impacted by this change directly, to allow plenty of time to understand the requirements and begin their process of weekly work-search activities.
For more Information see:
Ohio Restores Unemployment Benefits Weekly Work-Search Requirement
Unemployed Ohioans must resume search for work to claim benefits
Ohio Department of Jobs and Family Services (ODJFS), the state agency that administers unemployment claims and payments in Ohio, says $413.6 million in Pandemic Unemployment Assistance (PUA) overpayments were awarded last year. Nearly one in five people who applied for unemployment benefits under the PUA program have received notices from ODJFS that they were overpaid. According to ODJFS, it used reported income without verifying to get payments out quickly when PUA became available to Ohioans under the CARES Act, and only more recently has the agency started to verify income and adjust payments. As a result, amid the on-going COVID-19 pandemic many people have seen their benefits stopped and received notices that they need to pay back thousands of dollars.
Overpayment of PUA benefits to unemployment claimants who were not at fault for the improper amount and notices demanding repayment of money long-ago spent to survive the pandemic has been a nationwide issue. As a result, in December 2020, Congress passed the Continued Assistance Act and authorized states to waive the repayment if the state determines that the payment of PUA was without fault on the part of the person who applied for benefits and that repayment would be contrary to equity and good conscience. But the waiver provision is permissive. That means Ohio could choose not to waive the PUA overpayments. At this time, it is not certain that Ohio will allow waivers, but signs indicate that the state may be headed in that direction.
In mid-February State Reps. Lisa Sobecki and Jeff Crossman introduced House Bill (HB) 139, legislation that, if passed, would require the Director of ODJFS to waive the collection of certain unemployment benefit overpayments received by Ohioans through no fault of their own. This legislation is aimed at helping those who were not at fault for the overpayment by ODJFS or for those for whom repayment would cause an undue hardship.
Sobecki and Crossman recognize that many Ohioans have been struggling to pay rent and buy groceries, and many had difficulties collecting their unemployment compensation, in the first place. As Rep. Sobecki has said, “Many Ohioans can’t afford to pay back an overpayment they might have received. This isn’t the time to require those overpayments.” They argue the state should waive unemployment overpayments to protect Ohioans if the payments were received in good faith through no fault of the unemployment recipient. According to Crossman, “Forcing unemployment recipients to repay the benefits they were initially told they were rightfully entitled to only adds more insult to injury during this pandemic. In many cases, the initial delays in receiving benefits took months to begin with and created substantial hardships for people.”
In late April, ODJFS interim director Matt Damschroder testified before the Ohio Senate Finance Committee, which is considering HB 139. Damschroder explained how the state mistakenly overpaid thousands of claimants. According to Damschroder the ODJFS system was set up with an incorrect system query for the PUA program. Damschroder told the Finance Committee that ODJFS intends to release a plan on waiving overpayments sometime in May. Whether the proposed legislation requires the state to waive the overpayments of PUA or whether ODJFS comes up with its own plan for waiver remains to be seen.
In the meantime, if an unemployment claimant receives a notice of overpayment, it is possible to file an appeal. If you have questions about unemployment benefits or related issues, the attorneys at FMR are here to help.
Find out more by clicking on these links:
House Bill 139
Ohio Job and Family Services working on plan to waive unemployment overpayments
Honest PUA recipients may be forced to pay for Ohio errors in overpayments