News

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

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

 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

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.

Last month, the DOL published proposed rules establishing paid sick leave for federal contractors in accordance with Executive Order 13706 signed by President Obama. The deadline for comments on the proposed rules has been extended to April 12, 2016. A renewal of the Healthy Families Act objectives, the goal is to provide employees working on federal contracts with at least 7 days of paid leave for illness or family care.

Scope. The proposed rules would apply to employees who work on or in connection with new federal contracts awarded on or after Jan. 1, 2017 covered by the Service Contract Act or the Davis-Bacon Act, concessions contracts and service contracts in connection with federal property or lands. In short, contract coverage would be the same as Executive Order 13658, Establishing a Minimum Wage for Contractors, provided the employee spends at least 20% of their working hours in a particular workweek performing work in connection with a covered contract.

Absences Covered.  There are a broad set of limitations in which paid sick leave may be used by an employee resulting in absence. Further, the use of paid sick leave cannot be contingent on the employee seeking paid sick leave to find a replacement. Absences that will result in paid sick leave will include:

*  Physical or mental illness, injury, or medical condition;

*  Obtaining diagnosis, care, or preventative care from a health care provider;

*  Caring for a child, parent, spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship, who has any of the conditions or needs for diagnosis, care, or preventative care described above, or is otherwise in need of care.

The regulations also expand paid sick leave for an illness, injury or condition of the employee, or for the employee to obtain care for an illness, injury or condition, where the condition or care results from domestic violence, sexual assault, or stalking; for those seeking assistance from a victim services organization or to prepare or commence legal action as a consequence of domestic violence, sexual assault, or stalking; or to assist an individual related to the employee who is a family member who undertakes any of these actions as a result of domestic violence, sexual assault or stalking.

Requirements for requesting leave. Under the proposed regulations, paid sick leave shall be provided upon the oral or written request of an employee that includes the expected duration of the leave, and is made at least seven (7) calendar days in advance where the need for the leave is foreseeable, and in other cases as soon as is practicable.

Employer Responsibilities. The proposed rule provides two options for accruing paid sick leave, an accrual method and a “lump-sum” method. Under the accrual method, the employee will accrue not less than one hour of paid sick leave for every 30 hours worked on all covered contracts plus nonworking time on which the employee is paid. For full-time exempt employees, accruals can be calculated on actual hours worked (if tracked) or on an assumed 40 hours worked each workweek. Under the “lump sum” method, an employee must be provided with at least 56 hours of paid sick leave at the beginning of each accrual year. Paid sick leave will carry over from one accrual year to the next and carried over sick leave will not count toward any limit the contractor sets on annual accrual. However, an employer can place a limit on the amount of paid sick time an employee can accrue, provided that the cap is not less than 56 hours of paid sick leave per accrual year. The proposed rule allows the employer to select the 12-month period to use as the accrual year.

Further, the proposed rule requires federal contractor employers to inform their employees of their accrued sick leave balances no less than monthly.

Enforcement. No private right of action is created under the proposed regulations. Complaints for noncompliance must go through the DOL’s administrative process. Penalties can include backpay and reinstatement of last wages and benefits, liquidated damages in an amount equal to all other monetary relief ordered, and debarment.

While many employers already provide paid sick leave benefits, those who are federal contractors are encouraged to review their policies in light of the proposed regulations and either amend their existing policy or be prepared to adopt a new paid sick leave policy. For further information, 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.

By: Jeffrey M. Embleton

 Following the recent lead of the National Labor Relations Board (“NLRB”), on January 20^th, 2016 the U.S. Department of Labor (“DOL”) issued a new guidance document which signals a more aggressive approach to holding joint employers responsible for wage and hour violations, including unpaid overtime pay. Under the new guidance document, DOL’s Wage & Hour Division will attempt to hold those employers who “share” employees or use temporary or leasing agencies to staff positions liable for wage and hour violations committed by another employer. This guidance document follows on the heels of the NLRB’s decision in Browning-Ferris Industries of California, 362 NLRB No.186 (2015), which expanded the definition of joint employment for purposes of union recognition and possible violations under the National Labor Relations Act. We expect that other federal agencies, such as the Occupational Health and Safety Administration, will shortly follow the DOL’s lead.

On April 1, 2016, U.S. Citizenship and Immigration Services (U.S. CIS) will begin accepting H-1B petitions for covered employment starting October 1, 2016. There is a numerical limit on the number of new H-1Bs issued each federal government fiscal year and, as has occurred for many years, it is anticipated that the numerical limit will be reached quickly. To avoid rejection of a petition because the numerical limit is reached, employers need to begin preparations now for filing on April 1^st.

The H-1B program is available to foreign nationals who will be employed in a “specialty occupation.” “Specialty occupation” means an occupation which requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation, and which requires the attainment of a bachelor’s degree or higher as a minimum requirement to perform the job duties. H-1B visas are valid in three-year increments for up to six years and are both employer and location specific. In addition, H-1B visas require that the foreign national be paid the prevailing wage for the job in the geographic area of intended employment or the actual wage paid to similar employees of the employer in the same occupation at the same work site, whichever is higher.

Petitioning employers must certify, under the penalty of perjury, that the Export Administration Regulations (EAR) and the International Traffic In Arms Regulations (ITAR) have been reviewed and a determination made regarding whether an export license is required before controlled technology or technical data may be released to the foreign national on whose behalf the H-1B petition is filed. The certification requires that the petitioning employer involve its trade professional early in the immigration process to ensure that the export control certification is accurately answered and if an export license is required, that it is received in time for the foreign national to begin employment in the position which is the subject of the H-1B petition.

Mansour Gavin has attorneys ready to assist you in filing your H-1B petition and navigating U.S. Export laws. If you have any questions or require assistance with your business immigration, please contact Ann E. Knuth in our Labor and Employment Group. If you have any questions or require assistance with international import and exporting activities, please contact Edward O. Patton in our Corporate and Business Services 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 Ninth District Court of Appeals recently reversed the City of Lorain Board of Zoning Appeals’ denial of area variances involving the application of riparian setbacks to a proposed residential subdivision. Significantly, the Appellate Court agreed with the Lorain County Common Pleas Court’s reversal where Appellant K. Hovnanian Oster Homes, represented by Bruce Rinker of Mansour Gavin, demonstrated that its development plan actually implemented the storm water management methodologies sought to be effectuated by the City’s Zoning Code.

Bruce successfully argued that the requested relaxation of the linear setback distance was to enable the developer to install detention and grading elements expressly designed to intercept and filter surface waters on site, thus reducing potentially erosive and adverse water quality impacts through the granting of the variances.

Both the Appellate and Common Pleas Courts emphasized that “the Board did not properly consider the mandatory factors enumerated in L.C.O. 1533.14 [Riparian Setback provision] prior to denying K. Hovnanian’s variance application.”

Given the adoption by the vast majority of Northeast Ohio municipalities of the model Storm Water Management Code, as did Lorain, the Courts’ analyses are practical guides for all developers to consider in advance of submitting a subdivision plan in which comparable storm water management requirements are to be met.

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.

Bruce Rinker, a member of Mansour Gavin LPA’s Real Estate and Land Use practice group, was recently honored at the Cuyahoga County Mayors and City Managers Association’s annual dinner.  Held at Landerhaven, the event toasted – and gently roasted – outgoing mayors and city managers from the area. Other departing mayors honored included Richard Balbier of Brooklyn, Tom Brick of Chagrin Falls, Bill Cervenik of Euclid, Greg Kurtz of Independence, and Joe Cicero of Lyndhurst. Rinker, who is not seeking re-election after 22 years as the mayor of Mayfield Village, will step down from his post in January 2016 when his successor is sworn in.

While circumstance led him to run, as a vacancy opened up in the mayor’s office while he was City Council President, Rinker says he developed a sense of commitment to putting the village on a path toward long-term stability. He is most proud of growing a healthy tax base, rebuilding and refurbishing all major public facilities and amenities in the village, and installing a new and greener infrastructure during his years as mayor. “Our creation of the Greenway, the spine of our greenway corridor, is emblematic of our seamless meshing of residential, commercial and recreational uses within our boundaries,” Rinker said.

And what will Rinker, who also serves as a Cleveland Metroparks Commissioner, do with a bit of extra free time once his tenure as mayor is complete?  “What’s that?” he joked.

Congratulations, Bruce! Mansour Gavin sincerely appreciates your years of public service, and all that you have contributed, both to your community and to Cleveland.