Franchise arrangements pose legal problem for NLRB’s proposed joint-employer standard

The National Labor Relations Board’s general counsel, who is recommending that the Board dramatically alter the joint-employer doctrine, admitted that his proposal may run into “a problem legally” when it comes to franchisor-franchisee arrangements.

But franchisors shouldn’t get too excited. General Counsel Richard F. Griffin said that he thinks there may be a way around it, at least in certain cases. Continue reading

OSHA Revises Its Recordkeeping Rule

Employers must report to the federal Occupational Safety and Health Administration all work-related deaths within eight hours and all in-patient hospitalizations, amputations and losses of an eye within 24 hours under a newly revised record-keeping requirement that is effective January 1.

The new OSHA rule applies to all covered employers, even if the employer is exempt from maintaining injury and illness records.  The agency said the revision was needed to get a better understanding of the scope of work-related injuries in the United States.  Under the prior rule, employers were only required to notify OSHA of work-related fatalities and in-patient hospitalizations of three or more employees.

Court: USCIS should consider ‘life experience’ for specialized knowledge L-1B visa

In holding that cultural traditions and life experience can be considered “specialized knowledge” for purposes of obtaining an L-1B intracompany transferee visa, a United States appeals court rejected the proposition that a company must have an “ownership claim” in the worker’s knowledge before it may qualify as “specialized.” Continue reading

Employers Should Not Just Be Bold, But Smart, When Dealing With Ebola

Watch as Benesch attorney Joseph N. Gross discusses the implications of Ebola in the workplace in thisBenesch B-Cast.

Tensions are high concerning the potential spread of the Ebola virus disease in the U.S., fueled by the confirmation of new infections, around-the-clock news reports on potential calamities and our natural, and seemingly universal, fear of the unknown.

In light of the heightened threat of Ebola, employers must ensure that they are providing a healthy and safe environment for all employees. However, employers also need to be aware of their responsibilities under several employment-related laws, which may seem, at first, to be roadblocks. We believe the following laws are the most obvious: Continue reading

Ohio Supreme Court Rules On Applicability of Dual Intent Doctrine When Determining Eligibility For Workers’ Compensation Benefits

On October 21, 2014, the Supreme Court of Ohio in Friebel v. Visiting Nurse Assn. of Mid-Ohio addressed whether the doctrine of dual intent or dual purpose is applicable when determining eligibility for workers’ compensation benefits in Ohio. The Court reversed the Fifth District Court of Appeals and held that the dual intent doctrine is not recognizable when determining eligibility, and remanded the case to the trial court. Friebel v. Visiting Nurse Assn. of Mid-Ohio, Slip Opinion No. 2014-Ohio-4531. Continue reading

Employers Who Prohibit Use of Company Technology for Non-Business Purposes Have Dodged a Bullet—For Now.

The NLRB marked the end of summer by issuing its highly anticipated decision in Purple Communications, which many believed would address whether employers can continue to ban use of company equipment and technology, especially e-mail, for non-business purposes without violating federal labor law. To find such a ban unlawful would require the Board to overturn its 2007 Register Guard ruling, which held that employees have “no statutory right” to use an employer’s electronic communication system for organizing purposes. However, the Board kicked the proverbial can down the road—opting instead to sever the issue and hold it for further consideration on a later date—despite inviting parties and amicus curiae in April to submit briefs addressing whether the Board should overturn its decision in Register-Guard. Continue reading

Ohio Supreme Court Signals Possible Change to Individual Discrimination Liability for Private-Sector Employees

The Ohio Supreme Court recently held that public employees are not personally liable under certain Ohio anti-discrimination laws, but their actions may subject their political-subdivision employers to vicarious liability.

At the same time, the Court indicated that its decision in Hauser v. City of Dayton Police Dep’t, et. al, 2014-Ohio-3636, calls into question whether supervisors and managers of private-sector employers should be held personally liable under Ohio Rev.Code 4112 for discriminatory conduct, as they are now.

Given the right case, it is possible that the Court could decide that, like their public-sector brethren, supervisors and managers of private-sector employers may not be held personally liable for discriminatory conduct.

Continue reading

New Mandates For California Businesses

Next summer California employers will have to provide paid sick leave to most employees under a bill (A.B. 1522) signed last week by Democratic Governor Jerry Brown.  The new law makes California the second state in the country, after Connecticut, to require paid days off for employees who are ill.  Although the law has a carve-out for employees covered by a collective bargaining agreement, as well as for employees who provide in-home supportive services for the elderly or disabled, conservative estimates predict that the new benefit will apply to about 40 percent of the state’s workforce. Continue reading

EEOC Expands Pregnancy Discrimination Protections for Employees

The Equal Employment Opportunity Commission has issued guidance on pregnancy discrimination that provides, for the first time, that employers must offer light duty assignments to pregnant employees if they make light duty available to non-pregnant employees.

Under the Pregnancy Discrimination Act of 1978 (PDA), an employer engages in sex discrimination if it fires, refuses to hire, demotes, or takes any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action.

The PDA also requires employers to provide pregnant workers equal access to benefits of employment such as leave, light duty, and health benefits, according to the EEOC Guidance. Continue reading

Ohio BWC Agrees to Settle Class Action Lawsuit for Overcharging Employers

Business owners who may be eligible to share in a $420 million class action settlement over inflated premiums charged by the Ohio Bureau of Workers’ Compensation have until Oct. 22 to submit a claim form.

The settlement stems from a class action lawsuit filed in 2007 alleging that the BWC illegally overcharged thousands of business owners who did not qualify for the group experience rating plan for policy years 2001 to 2008. A Cuyahoga County Common Pleas Court judge awarded the business owners $859 million following a bench trial in 2012, although the Eighth District Court of Appeals subsequently reduced that figure to $650 million in May 2014.  The case was pending appeal to the Supreme Court of Ohio when the two sides reached the settlement agreement.

The Settlement Administrator, who is managing the distribution of funds on behalf of the parties, sent notices on Friday to all business owners who qualify as class members in the lawsuit.  The notice contained a claim form that business owners must submit in order to qualify for their part of the settlement. Owners who have not received a notice but believe they may be eligible to participate in the settlement are encouraged to call the Settlement Administrator at (844) 322-8230.

The settlement defines class members as those business owners who, in one or more policy years from 2001 through 2008, (1) subscribed to the state workers’ compensation fund, (2) were not group rated, and (3) reported payroll and paid premiums in an occupational, or “manual” classification for which the non-group effective base rate was inflated due to application of the group experience rating plan.   However, not all manual classifications were inflated under the group experience rating plan so not all non-group rated owners will be Class Members.

Owners can find out how much their claims are worth by visiting http://www.ohiobwclawsuit.com/ and then accessing the Online Policy Information Portal.  In order to access the Online Policy Information Portal, a business owner must submit his or her BWC Policy Number and the claim number listed on the claim form sent by the Settlement Administrator.

The deadline for submitting a claim form is Oct. 22.  That is also the deadline for filing an objection with the court over the fairness of the settlement.  A Final Approval Hearing to approve the settlement is currently scheduled for 9 a.m. on November 19 in Judge Richard McMonagle’s courtroom at the Cuyahoga County Justice Center, Courtroom 16-D, 1200 Ontario Street, Cleveland, OH.

For additional information, please contact Rick Hepp at 216.363.4657 or rhepp@beneschlaw.com.