President Biden Signs Bill Ending Forced Arbitration of Sexual Assault and Sexual Harassment in the Workplace

On March 3, President Biden signed H.R. 4445 “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” The bipartisan bill amends the Federal Arbitration Act (FAA) to permit an employee alleging sexual assault or harassment to invalidate a pre-dispute arbitration agreement or joint-action waiver. Such arbitration agreements are typically found in employment agreements.

§402 details that “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute join-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

Plainly, if an employee signs an agreement to arbitrate employment-related claims at the onset of or during employment and later experiences sexual harassment or assault, the employee can choose to pursue his or her claims in court rather than through arbitration. Additionally, if an employee signs an agreement to pursue his or her claims only individually, and not as a member of a class action lawsuit, the employee may elect to dispense with that agreement and pursue claims on a joint basis with other alleged victims. The discretion to waive the agreement rests solely on the employee. The legislation also requires that courts, rather than arbitrators, determine whether H.R. 4445 applies to a given claim, even if the agreement at issue delegates that authority to an arbitrator. This is a considerable departure from U.S. Supreme Court precedent holding that under the FAA, parties to arbitration agreements could delegate the decision of whether a claim is arbitrable to the arbitrator.

The FAA amendment applies “to any dispute or claim that arises or accrues on or after the date of enactment.” Thus, while the bill could invalidate pre-dispute agreements entered prior to its enactment, it would not affect disputes that began prior to the bill’s enactment.

The practical effect is that employers will no longer be able to keep sexual assault and sexual harassment claims out of court through mandatory arbitration and should take action to update any arbitration agreements to comply with the legislative exception relating to sexual assault or sexual harassment claims. Employers should further prepare for any existing sexual assault or sexual harassment claims currently in arbitration to be moved to the courts if the employee so chooses.

Our Labor or Employment attorneys are available to assist in addressing any questions you may have regarding these developments. To learn more about these issues, please contact the Mansour Gavin lawyer with whom you usually work or any member of the firm’s  Labor or Employment group.

In tragic times of Russian aggression against Ukraine, we are witness to the unthinkable. Two members of the Mansour Gavin family have close ties to Ukraine. Tatyana Pishnyak and her husband are from Ukraine, where their family and friends still reside. Tim Boyko is of Ukrainian descent, both of his grandparents were born there, and he is actively involved with the Ukrainian Catholic Diocese in Parma.

We stand with the people of Ukraine and hope for an immediate end to this war.

To support Ukrainian humanitarian efforts, please consider contributing to one of the following organizations.

Cleveland Maidan Association – a local organization sending humanitarian help to Ukraine – https://www.clevelandmaidan.info/

Razom Ukraine – a U.S. organization sending humanitarian help to Ukraine – https://razomforukraine.org/razom-emergency-response/

Saint Josephat Eparchy – Provides food, clothing, shelter, and medical assistance to Ukraine – https://stjosaphateparchy.com/

#WeStandWithUkraine

Diane A. Calta will participate in the Cleveland Metropolitan Bar Association’s upcoming REAL (Racial Equity and the Law) Talk webinar titled “Diversifying Outside Counsel Spend and Recruiting and Retaining Diverse Talent.” The webinar will feature multiple in-house and outside counsel panelists discussing practical, action-oriented best practices for in-house counsel to review, track, and engage with their outside counsel to increase the diversity of external legal spend and for all legal organizations to recruit, retain, and engage diverse talent.

The webinar will take place Fri, February 11, 2022 from 12:00 PM – 1:00 PM ET and offers 1 hour of CLE credit.

For additional information and to register, click here.

Mansour Gavin is proud to announce that the following attorneys have been named to the 2022 Ohio Super Lawyers^® list!

Anthony J. Coyne, 2022 Ohio Super Lawyers^®
John W. Monroe, 2022 Ohio Super Lawyers^®

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

Every year Super Lawyers selects attorneys from all firm sizes and over 70 practice areas throughout the State of Ohio using a patented multiphase selection process. Only up to five percent of the lawyers in the state are named to Super Lawyers, and no more than 2.5 percent are named to the Rising Stars list.

Mansour Gavin LPA is an established law firm founded in 1954 with offices in Cleveland and Independence, Ohio. The firm provides a wide range of legal services to individuals and many successful privately held and publicly traded corporations.

Anthony J. Coyne
President, Mansour Gavin LPA

Kenneth Callahan has been appointed by Ohio Gov. Mike DeWine to serve as one of five judges on the Cuyahoga County Court of Common Pleas.

Callahan possesses over 30 years of legal experience as a public defender, a judge, and attorney, specializing in a wide array of legal matters including complex commercial litigation, receivership, guardianship, and white-collar criminal defense. His vast experience and perspective are highly regarded and leveraged as an arbitrator serving as a private judge in the state of Ohio. He has been an asset member of the Mansour Gavin’s Civil Litigation and Corporate and Business Services groups.

Callahan was previously appointed to a vacancy in the General Division of the Cuyahoga County Common Pleas Court. He left the bench after 16 years of service. He served as the president of the Cleveland Civil War Roundtable, Cleveland Catholic Lawyer’s Guild, and Manos Inn of Court. He also was a part of the Common Pleas Court Civil Rules Committee and Criminal Rules Committee and was vice-chair of the Judicial Selection Committee for the Cleveland Bar Association.

Callahan will assume office on Dec. 15, 2021 and will be replacing Judge Nancy McDonnell who passed away in the fall.

Mansour Gavin LPA is an established law firm founded in 1954 with offices in Cleveland and Independence, Ohio. Comprised of 45+ employees, including 22 lawyers, the firm provides a wide range of legal services to individuals and many successful privately held and publicly traded corporations.

In September, President Biden ordered the Occupational Safety and Health Administration (OSHA) to prepare an Emergency Temporary Standard (ETS) mandating that larger private sector employees get vaccinated against COVID-19. The Occupational Safety and Health Act authorizes an ETS in situations of “grave danger” for employees. 29 U.S.C. §655(c)(1).

The Department of Labor has issued its vaccination mandate rule for the private sector, which will require employers with 100 or more employees to establish procedures for compliance and will undoubtedly result in litigation over the lawfulness of the standard.

The mandate, immediately effective upon publication in the Federal Register, which is expected to be November 5, provides the following:

• Generally. Employers with 100 or more employees are required to implement a policy mandating vaccination or, in lieu of vaccination, non-vaccinated employees must test negative for COVID-19 every seven days and wear a mask in the workplace.
• 100-employee threshold. Part-time employees count towards the 100-employee threshold, while contractors and temporary workers do not. Employers with less than 100 permanent employees are not covered by the standard, even if they have temporary employees that bring them past the 100-employee threshold. An example from the published rule provides:
  • “If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees; however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers).”
• What about employees who work from home? Because OSHA has determined that the provisions of the ETS are not necessary to protect employees from COVID-19 when they are working alone, or when they are working from home, even where the standard applies to a particular employer, its requirements do not apply to employees (1) who do not report to a workplace where other individuals such as coworkers or customers are present (2) while working from home; or (3) who work exclusively outdoors.
• At what cost?
  • There is no requirement that an employer must cover the cost of testing, if any.
  • Employees will be responsible for procuring their own masks.
  • Employers will be required to provide up to four hours of paid time off to employees to get vaccinated and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
• Recordkeeping. Employers must determine vaccination status and maintain a record of vaccination status, proof of vaccination and copies of employee COVID-19 test results and maintain a roster of the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace. The records and roster are considered to be employee medical records and must be maintained as such.
• Vaccination Policy. Covered employers must create vaccination policies addressing the ETS requirements, including:
  • Requirements for COVID-19 vaccination
  • Applicable exclusions from the written policy (i.e. medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs)
  • Information on determining an employee’s vaccination status and how this information will be collected
  • Paid time and sick leave for vaccination purposes
  • Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace
  • Information about:
    • the ETS, the employer’s policies and procedures regarding vaccination, testing and results,
    • COVID-19 vaccine efficacy, safety and the benefits of being vaccinated,
    • protections against discrimination and retaliation under section 11(c) of the OSH Act, and
    • prohibitions against and criminal penalties for providing false statements or documentation.
  • Disciplinary actions for employees who do not abide by the policy.
• Compliance Dates. Employers have 30 days from the effective date to comply with all provisions of the ETS (by December 5, 2021), except for the provision regarding testing for employees who are not fully vaccinated, which requires compliance within 60 days of the effective date (by January 4, 2022).
• Exempted. The ETS does not apply to workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in workplaces already subject to the requirements of the Healthcare ETS.

Employers are encouraged to review and update their policies accordingly to ensure they are in compliance with this mandate. Please reach out to our Labor or Employment group with any questions or for further clarification.

Brendon Friesen served as a panel member at the Legal Netlink Alliance’s (LNA) Fall 2021 meeting titled “Delaware Business Law: Political, Legal, and Business Impact Beyond Delaware’s Borders.”

Brendon and the other panelists, which included Master Selena Molina of the Delaware Chancery Court, along with attorneys from other member firms in Wilmington, DE and Chicago, IL, discussed diversity equity & inclusion efforts in law firms and the judiciary.

Mansour Gavin is a member of the Legal Netlink Alliance which is a global association of small and medium-sized, independent law firms that offers members and their clients access to top-notch legal representation around the world.

The 2021 National Gold Medal “Best in Nation” Award for Excellence in Parks and Recreation Management was awarded to The Cleveland Metroparks. The award, which was announced at the 2021 National Recreation and Park Association (NRPA), is the highest national honor in the parks and recreation field. Bruce Rinker has proudly served as Commissioner for the Cleveland Metroparks since 2010. Read more…

In January, we reported on a new Independent Contractor Rule which eased the classification process by clarifying the factors that determine when a worker is considered an independent contractor versus an employee under the Fair Labor Standards Act (“FLSA”). Following the election of the new administration,  the effective date of the rule was delayed leading to anticipation that the rule would eventually be rescinded or modified.

As expected, on May 6 the Biden Administration withdrew the new rule effective immediately. As a result of the withdrawal of the new rule, nothing changes for employers regarding their employee classification procedures and workers’ rights to the minimum wage and overtime compensation protections of the Fair Labor Standards Act remain in effect.

If you would like additional guidance on how to navigate changes in employment law or any other employment issues, please reach out to your contact at Mansour Gavin or one of our Labor and Employment attorneys.