Employers to Receive Increase in Notice-Posting Violations
On June 2, 2016, the Equal Employment Opportunity Commission issued a Final Rule increasing the penalty to employers for violations of the notice-posting requirements of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Genetic Information Non-Discrimination Act from $210 per violation to $525. The last increase was in 2014, from $110 to $210. Employers can expect annual increases hereafter. Per the Final Rule, periodic inflation adjustments are required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires each federal agency to issue regulations not later than July 1, 2016, and not later than January 15 of every year thereafter, adjusting for inflation the maximum civil penalty that may be imposed pursuant to each of the agency’s statutes, in order to maintain the remedial impact of civil monetary penalties and promote compliance with the law.
For more information on this and other matters, please contact Mansour Gavin’s Labor and Employment Practice Group.
LEGAL DISCLAIMER
The information contained on this web site and any linked resource is intended to provide general information and does not constitute legal advice. The content is not guaranteed to be correct, complete, or up-to-date. This web site is not intended to create an attorney-client relationship between you and Mansour Gavin LPA or any of its associates, and you should not act or rely on any information in this web site without seeking the advice of an attorney.
The Cuyahoga County Court of Common Pleas recently reversed a decision rendered by the City of Cleveland Board of Zoning Appeals which had denied a zoning permit to construct a McDonald’s restaurant in Ohio City on Lorain Avenue. The Court agreed with McDonald’s, represented by Bruce Rinker of Mansour Gavin, who successfully argued that the City’s action was clearly arbitrary and unconstitutional.
The City Planning Commission had initially denied the application, “reasoning” that the proposed development would have an adverse impact on nearby pedestrian-oriented retail uses due to a presumed increase in vehicular traffic. One year and three costly traffic analyses later (spec’d by the City’s own experts) comprehensive evidence refuted those fears. Nor was it lost on the court that officials cynically disregarded the evidence anyway.
Despite strident political opposition voiced by neighboring witnesses who crowded into both the Planning Commission and BZA hearings, the Court found that no evidence existed to show that the project would adversely impact the pedestrian-oriented character of the neighborhood. In fact, the Court held that compelling evidence proved just the opposite. Finding that the City’s zoning code had merely been used as a pretext to deny expressly-permitted uses–where neither a variance nor any other use condition was required–the Court reversed the Board’s decision. Pointedly, the Court warned that the City’s three and one-half year stranglehold on the property was plainly unconstitutional.
For more information, please contact Mansour Gavin’s Real Estate and Land Use Practice Group.
LEGAL DISCLAIMER
The information contained on this web site and any linked resource is intended to provide general information and does not constitute legal advice. The content is not guaranteed to be correct, complete, or up-to-date. This web site is not intended to create an attorney-client relationship between you and Mansour Gavin LPA or any of its associates, and you should not act or rely on any information in this web site without seeking the advice of an attorney.
Further Limitations Recognized in Employer Intentional Tort Claims
An Ohio appellate court recently affirmed a more restrictive definition of an “equipment safety guard” in the context of an intentional tort suit in McQuillen v. Feecorp Industrial Services. Ohio’s Intentional Tort Statute, Ohio Revised Code section 2745.01, allows an employee to recover economic and noneconomic damages by showing the employer committed a tortious act with the intent to injure or with the belief that the injury was substantially certain to occur. “Substantially certain” is defined as a specific or deliberate intent to cause injury. R.C. § 2745.01(B). A rebuttable presumption is created in favor of the employee if the employer deliberately removed an equipment safety guard or deliberately misrepresented a toxic or hazardous substance. R.C. § 2745.01(C). The legislature has not defined an “equipment safety guard” or “deliberate removal” for purposes of R.C. § 2745.01(C). Ohio Courts, interpreting the statute, have continually limited the meaning of an “equipment safety guard”, which has in turn restricted employee’s recovery in employer intentional tort claims.
The Ohio Supreme Court adopted the Sixth Appellate District’s definition of an “equipment safety guard” as a “device that is designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.” Fickle v. Conversion Technologies International. In a subsequent decision, Hewitt v. L.E. Myers Co., the Court further elaborated that any generic safety-related item will not be considered as an “equipment safety guard.”
Following that decision, the Fifth Appellate District, in Beary v. Larry Murphy Dump Truck Serv., Inc., narrowly construed the definition of an “equipment safety guard” when it determined that a backup alarm on a Bobcat loader vehicle, which was not properly sounding, was not an “equipment safety guard” for purposes of R.C. § 2745.01(C). “While the backup alarm may make the skid street safer, it does not shield the operator or a bystander from exposure to or injury by a dangerous aspect of the skid steer.”
Recently, the Fifth Appellate District, in McQuillen v. Feecorp Industrial Services, once again further limited the definition of an “equipment safety guard.” The court analyzed whether a lanyard-assisted “safety T” (a device that can be installed onto a vacuum hose at a point within 50 feet of the opening that would allow a user to automatically shut off the hose) was an “equipment safety guard.” The court compared the “safety T” to a remote cut-off switch, which is often found connected to various types of industrial machines. The court found that the mere existence of the “safety T” does not shield the operating employee from injury but rather, the operating employee’s action to engage the “safety T” is what provides a safety shield. The court held that the “safety T” in question did not constitute an “equipment safety guard” and therefore, plaintiff was unable to establish a rebuttable presumption of an intentional tort.
It is worth noting that Judge Hoffman’s dissenting opinion in McQuillen identifies that the appellate court’s interpretation of an “equipment safety guard” was “overly restrictive” that the use of the term “shield” is a verb, not a noun and “to shield” means “to protect from.” Following this reasoning, Judge Hoffman stated that the operating employee’s “need to take a proactive step to engage the safety T on an as-needed basis does nothing to detract from its intended purpose to shield the operator from injury.”
Despite these additional restrictions that Ohio Courts have recognized in employer intentional torts, employers should still take precaution to guard against the possibility of these claims. Employers should train their employees about the importance of safety guards and the dangers of toxic and hazardous substances, as well as have a system in place to inspect all equipment to ensure that safety guards are in the proper place.
For more information on this and other matters, please contact Mansour Gavin’s Labor and Employment Practice Group.
LEGAL DISCLAIMER
In Steak ‘n Shake, Inc. v. Warren Cty. Bd. of Revision, the Ohio Supreme Court explained proper appraisal methodology when using leased properties as comparable sales in valuing unleased, owner-occupied properties. On appeal, Steak ‘n Shake — the owner-occupier — asked the Court to review the County’s appraiser’s failure to adjust his comparable sales to account for the fact that the comparables were all subject to long-term leases.
Reversing the BTA and remanding the case for further proceedings, the Court recognized that leases generally enhance the value of real estate. Thus, “sale prices of leased properties generally must be adjusted when determining the value of comparable unleased properties” like the Steak ‘n Shake property. The Court noted the County’s appraisal failed to “remove the effect that long-term leases would have” and recognized that “[s]ince the property at issue was unencumbered by a lease, it would likely have sold for less.” The Court also rejected the County’s argument that Steak ‘n Shake fell within the special-purpose doctrine, which is generally applied to distinctive yet highly useful structures being used for the unique purpose for which they were built (think Wal-Mart) in order to prevent an owner from escaping full property tax liability. In other words, buildings such as the Steak ‘n Shake are readily saleable on the open market for other purposes.
If you own unleased property and are seeking a property tax reduction, be cognizant of improper appraisal methodology in competing appraisals. For more information on this and other real estate matters, please contact Mansour Gavin’s Real Estate and Land Use Practice Group.
LEGAL DISCLAIMER
By: Edward O. Patton
Suppliers and importers of overseas goods should take immediate notice of a new federal law, the Trade Facilitation and Trade Enforcement Act of 2015, which went into effect in March. Trade Facilitation and Trade Enforcement Act of 2015 now officially prohibits the importation of goods produced by forced labor or child labor, closing an 86 year old loophole and reauthorizing the Customs and Border Protection Agency to seize any imports suspected of being produced by forced labor. The timing of the Trade Act coincide with changes to the Federal Acquisition Regulations and DFARS that greatly strengthen anti –trafficking prohibitions and compliance requirements.
What Does the New Trade Law Prohibit?
The Trade Law prohibits importing into the U.S. goods that are produced, manufactured, or mined by forced, indentured, or convict laborers. The Trade Law effectively ends the loophole that previously existed under the U.S. Tariff Act of 1930 which previously permitted, if consumer demand exceeded domestic production, the importing of goods made with forced labor. Because demand in many sectors of the U.S. economy often exceeded domestic production, this loophole often permitted the importing of such goods. However, with the 2015 Act now in effect, this loophole was closed and now goods can be seized.
Changes to the Federal Acquisition Regulations and DFARS that greatly strengthen anti –trafficking prohibitions require that contractors and subcontractors supplying the Federal government have anti trafficking compliance programs.
Who Does the Law Apply To?
All importations into the U.S. and to any company that is a subcontractor or supplier to a Federal contract.
What Does This Mean for Importers of Overseas Goods?
The 2015 Trade Law places more pressure on suppliers and importers to scrutinize their supply chains and develop compliance systems to ensure forced indentured, or convict laborers are not producing their imports. The law also allows any interested party to request the U.S. Customs and Border Protection to investigate imports to determine if they were produced with forced labor in a foreign country. Interested parties will likely turn to the U.S. Department of Labor’s List of Goods Produced by Child Labor or Forced Labor and Executive Order 13126 to identify potential goods when making their requests. Goods found to be produced, in whole or in part, with forced labor can be excluded and/or seized. Further, such a finding can compel the investigation of the importer itself.
What does this mean for Suppliers to Federal Contracts?
All Federal contractors and subcontractors are prohibited from engaging in trafficking activities and are required to implement and certify compliance to a formal compliance plan. A plan must include procedures for preventing agents and subcontractors from engaging in trafficking in person and for monitoring, detecting and terminating those who engage in the prohibited activities.
What Should Suppliers and Importers Do to Comply?
With these changes in mind, it is very important that importers and suppliers to Federal contracts or contractors work to limit the risks under federal law. As a result of the new legislation, companies should implement a policy and/or compliance plan to meet the revised laws because of Federal Contract “flow down” provisions which require compliance at all levels of a Federal contract or subcontractor regardless of dollar values so that even lower tier contractors require compliance. Companies should implement a screening program to deter their supply chain from engaging in the prohibited conduct.
For more information on this matter and how to best limit such risks and ensure compliance with the 2015 Act, please contact Mansour Gavin’s Corporate and Business Services Group.
LEGAL DISCLAIMER
Employers’ Post-Accident Drug Testing Policy Under Attack with OSHA’s New Electronic Accident Reporting Rule.
Much has been written about OSHA’s new Electronic Accident Reporting Regulations. Among other things, employers will be required to establish a “reasonable procedure” for employees to report work-related injuries and illnesses “promptly and accurately”. Additionally, the policy must not “deter or discourage” employees from reporting a workplace injury or illness and prohibits retaliation for any such report.
Post Accident Drug Testing
However, less has been written about OSHA’s position on post-accident drug/alcohol testing policies because it is not specifically part of the final rule. Nevertheless, buried in the 273 page commentary published by OSHA is its conclusion that mandatory or automatic post-accident drug testing will discourage reporting. Acknowledging that drug testing is a reasonable workplace policy in some situations, it proposes that any such post-accident drug testing rules be limited, “to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use”.
Case by Case Analysis May be Required
OSHA has also made it clear that employers with post-accident drug testing policies will be challenged to justify the decision to test based on the facts of the specific workplace incident or accident and that employers should no longer “rely on blanket policies requiring tests following a report of an injury”. In OSHA’s view, a blanket rule mandating post-accident drug testing will serve as a form of retaliation or adverse action against the employee which is considered unlawful under the new rule.
State Drug Free Workplace Programs are Exempted
The good news, if there is some, is that employers which participate in various states’ drug free workplace programs the new rule will not prohibit such testing as this is not considered to be “retaliatory” testing. For Ohio employers, those enrolled in the Ohio BWC’s Drug-Free Workplace Program (DFWP) will be permitted to continue post-accident drug testing.
Employers are encouraged to have their accident reporting procedures carefully reviewed and updated to comply with the new federal program and to also carefully scrutinize their post-accident drug-alcohol testing programs to ensure full compliance under the new federal law.
For more information on this and other matters, please contact Mansour Gavin’s Labor and Employment Practice Group.
On May 18, 2016, the Final Rule setting forth changes to the white collar exemptions under the Fair Labor Standards Act (FLSA) was announced, including these provisions, which will be effective on December 1, 2016:
- The standard salary level has been increased to $47,476 annually, or $913 per week.
- The annual compensation requirement for highly compensated employees has been increased to $134,004.
Salary Level is Only One Criterion
There are no changes to the duties test, as some had feared. However, it is important to know that as with the old rule, salary level is only the first test. If an employee’s base salary is in excess of the minimum threshold, the employee must still meet one of several exemptions outlined in the regulations, including the Administrative, Professional, Executive and Computer exemptions. And, the burden remains on the employer to prove the employee falls within one of the exemptions.
The Final Rule incorporates an automatic update every three years to the minimum salary threshold, and allows employers to use nondiscretionary bonuses and incentive payments (including commissions) to meet up to 10% of the new standard salary level.
Mansour Gavin LPA congratulates John Monroe, a shareholder and member of the firms’ executive committee, on his recent appointment as President of Euclid City Council. Mayor Kirsten Holzheimer Gail appointed Monroe in February when Euclid City Council was deadlocked over appointing her replacement. John is a lifelong resident of Euclid and previously served on Euclid Planning & Zoning Commission as both the Chairman and Vice Chairman.
The Ohio Supreme Court announced that subcontractors enrolled in a self-insured construction project will now find immunity from tort claims made by employees of a different enrolled-subcontractor who are injured or killed while working on the self-insured project and whose injury, illness, or death is compensable under Ohio’s workers’ compensation law.
In Stolz v. J & B Steel Erectors, Inc., The Supreme Court was asked by the US District Court for the Southern District of Ohio, Western Division for clarification on the question of whether “Ohio Rev. Code §§ 4123.35 and 4123.74 provide immunity to subcontractors enrolled in a Workers’ Compensation self-insurance plan from tort claims made by employees of [other] enrolled subcontractors injured while working on the self-insured project.” In the case before the Federal District Court, plaintiff, an employee for one subcontractor, sued another subcontractor for injuries allegedly caused by the second subcontractor’s negligence. The general contractor had obtained authority to be a self-ensuring employer on the project under R.C. 4123.35(O) and therefore was required to provide workers’ compensation coverage for both its own employees and those of enrolled subcontractors working on the casino construction project. The plaintiff’s employer, a subcontractor, and other subcontractors were enrolled subcontractors.
The Supreme Court answered the question of whether subcontractors enrolled in a Workers’ Compensation self-insurance plan are immune from tort claims made by employees of other enrolled subcontractors injured while working on the self-insured project in the affirmative and held that the subcontractor which allegedly caused the injuries was immune from liability for the claims because it was an enrolled subcontractor. The Court reasoned the statutes created a “legal fiction” wherein a “self-insuring employer is the employer of all covered employees, including employees of enrolled subcontractors, for purposes of workers’ compensation.” This legal fiction, according to the Court, therefore “made clear that for purposes of workers’ compensation, enrolled subcontractors do not have employees working on the construction project.” Thus, the general contractor, not the enrolled subcontractor-employer, is liable for workplace injuries of the enrolled subcontractor’s employees; the enrolled subcontractor is immune. Additionally, referencing tort law, the Court concluded that “a worker who may be compensated with workers’ compensation benefits is prevented from suing a co-employee (any other employee on the job site who is enrolled in the self-insuring employer’s plan), and thus the worker cannot seek to hold the co-employee’s actual employer vicariously liable in order to recover damages in tort.” For these reasons, the Court concluded, enrolled subcontractors were immune from claims of employees of other enrolled subcontractors who were injured or killed while working on the project so long as the event is compensable under Ohio’s workers’ compensation laws.
For more information on this and other matters, please contact Mansour Gavin’s Civil Litigation Group.
The information contained on this web site and any linked resource is intended to provide general information and does not constitute legal advice. The content is not guaranteed to be correct, complete, or up-to-date. This web site is not intended to create an attorney-client relationship between you and Mansour Gavin LPA or any of its associates, and you should not act or rely on any information in this web site without seeking the advice of an attorney.
Mansour Gavin both participated in and served as a sponsor of the recent 2016 HeartBeat 5k, presented by the American Heart Association Young Professionals Board. Held on a recent Saturday at the Cleveland Metroparks Zoo, Team MG reported gorgeous weather and a fun race. Looking forward to 2017!
