News

E-Notary Services are now available at Mansour Gavin LPA. Our E-Notary service provides online notary services for the State of Ohio. Our notaries are certified and authorized by the Ohio Secretary of State to perform notarial acts. No in-person meeting is required.

Requirements:

• Access to a computer, internet and webcam
• Access to a smart phone (iOS or Android preferred)
• State issued identification or passport
• Digital version of documents that need to be notarized

There is a nominal fee for Mansour Gavin clients ($10 for the first notary stamp and $5 for each after – per session) and an additional $25 notarial fee for non-clients.

Once the notarization is completed, a recording and a copy of the notarized document will be securely stored according to the laws provided by the State of Ohio and an electronic copy of the notarized document will be sent to the signer..

Please reach out to one of our certified E-notaries with any questions.

Michele Kerling – mkerling@mggmlpa.com
Allison Hakal – ahakal@mggmlpa.com
Vicki Marley – vmarley@mggmlpa.com

Mansour Gavin LPA is pleased to announce that Daniel McGuire has been elected to the firm’s partnership, effective January 1, 2021. Focusing his practice on estate planning and trusts, Dan has represented clients in the entire wealth spectrum and is adept at advising clients to address changing circumstances that require planning for the future.

Dan was in private practice before joining the trust department at PNC. “Since joining the firm in 2018, he has made significant contributions to our firm by demonstrating a deep understanding of our clients’ needs and delivering superior legal service. I’m thrilled to welcome him to the partnership and to support him in the next phase of his career” said Tony Coyne, Mansour Gavin president.

Dan earned his J.D. from Case Western Reserve University School of Law.

Mansour Gavin LPA is a 23-attorney law firm founded in 1954 with offices in Cleveland and Independence, Ohio.

The United States Department of Labor (“DOL”) 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”). On January 6, 2021, the DOL issued this Final Rule which is set to take effect on March 8, 2021. However, the incoming Biden administration may revise or rescind the rule before the effective date.

The DOL rule affirms and emphasizes the “economic reality test” when classifying a worker for FLSA purposes. The rule examines that a worker who labors for himself is an independent contractor; whereas, a worker that is economically dependent on a business is an employee. Applying the rule requires balancing five factors, two of which are critical while the other three are considered relevant.

Five factors are examined in determining whether a worker is an independent contractor or an employee for FLSA purposes. Critically, the two core factors controlling the analysis are the nature and degree of control over the work and the worker’s opportunity for profit and loss based on initiative and investment. The three relevant factors balance the skill required, degree of worker’s permanence, and whether the work is part of an integrated unit of production. Ultimately, the new DOL rule emphasizes the practical aspects of work over the theoretically or conceptually possible outcomes from their work. Also helpful is the Final Rule at §795.115 which provides six real-life examples of how the new analysis works.

Broadly, the purpose of the DOL rule is to add firmness when classifying workers for FLSA purposes. While this rule may make classification easier, the rule’s viability hinges on the incoming administration, which may rescind or revise the DOL’s Final Rule. Therefore, relying on the rule is premature and employers must wait and see how the rule is treated. We will continue to keep you informed of any changes to this rule.

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

On January 12, 2021, Governor Mike DeWine signed House Bill 352 (“HB 352”), the Employment Law Uniformity Act, into law. It will go into effect April 12, 2021 and apply to discrimination claims filed on or after that date. The new law provides much needed clarity to employers while still protecting employees’ rights to challenge workplace discrimination. The following are highlights of the new law.

Elimination of Personal Liability for Managers and Supervisors
Under the new law, managers and supervisors can no longer be held individually liable for violation of employment discrimination laws (with a few exceptions), consistent with federal law. Managers and supervisors therefore can make decisions free from fear of liability provided that they are not retaliating against an employee for opposing a discriminatory practice, acting outside the scope of their employment, or otherwise aiding in a discriminatory practice.

Failure to Exhaust Administrative Remedies
Akin to the requirement for most federal discrimination claims, before an individual can file an employment discrimination lawsuit, they must now file an administrative charge with the OCRC and one of the following must apply:

• The person has received a notice of right to sue from the OCRC;
• The person has requested a notice of right to sue and the OCRC fails to issue a notice within 45 days; or
• The OCRC determines there is probable cause that an unlawful discriminatory practice has occurred and the person elects to file a suit.

HB 352 creates exceptions to the above scenarios where the person seeks only injunctive relief or has received a right to sue from the U.S. Equal Employment Opportunity Commission (EEOC).

Statute of Limitations Shortened
HB 352 shortens the statute of limitations for employment discrimination lawsuits from six (6) years to two (2) years after the alleged discriminatory act occurred. The statute of limitations is tolled while the charge is being investigated by the OCRC.

Prescribes Affirmative Defense
The new law provides an affirmative defense for employers in hostile work environment harassment claims. The employer must (1) show that the employer exercised reasonable care to prevent or promptly correct any harassing behavior and (2) show that the employee alleging the hostile work environment unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. The intent of this new legislation, aligning to the Faragher/Ellerth affirmative defense under federal law, is to encourage the implementation of effective anti-discrimination policies and promote the resolution of issues within the workplace.

Reduces Availability of Age Discrimination Lawsuits
HB 352 finally provides a clear path for pursuit of an age discrimination claim. Previously, there were three different statutory avenues for age discrimination claims. Now, age discrimination claims are treated as other protected class status discrimination claims, subject to a 2-year statute of limitations and requiring exhaustion of administrative remedies.

Available Remedies for Employment Discrimination Lawsuits
HB 352 now classifies employment discrimination lawsuits as a “tort action” making them subject to previously enacted tort reform limits on liability. Thus, the following applies to available remedies:

• Compensatory damages for the plaintiff’s economic loss (lost wages, salary, or other compensation and expenditures) are not limited;
• Compensatory damages for the plaintiff’s noneconomic loss (pain and suffering, loss of consortium, and mental anguish) cannot exceed the greater of $250,000 or an amount that is equal to three times the plaintiff’s economic loss, as determined by the trier of fact (a jury or a judge in a nonjury trial), to a maximum of $350,000 for each plaintiff or a maximum of $500,000 for each occurrence that forms the basis of the tort action;
• Punitive or exemplary damages cannot exceed two times the amount of the compensatory damages awarded to the plaintiff or 10% of a small employer’s or individual’s net worth when the tort was committed, to a maximum of $350,000, unless the tort action was committed “purposely” or “knowingly.”

This new law was years in the making and a welcome update to Ohio’s employment discrimination laws, aligning them with federal employment discrimination laws. If you would like additional guidance on how to navigate these changes in the law or any other employment issues, please reach out to your contact at Mansour Gavin or one of our Labor and Employment attorneys.

On September 4, 2020, the Centers for Disease Control and Prevention published an Order in the Federal Register in an effort to prevent the further spread of COVID-19 by placing a temporary halt to certain residential evictions (the “Order”). Under the Order, effective through December 31, 2020, a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person under the Order from any residential property. However, the Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract. Nothing in the Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract.

In order to be a “Covered Person” as defined in the Order, every tenant on a residential lease must provide their landlord a declaration under penalty of perjury indicating that:

(1) The individual has used best efforts to obtain all available government assistance for rent or housing
(2) The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
(3) the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
(4) the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other non-discretionary expenses; and
(5) eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.

The Order does not preclude evictions based on a tenant: (1) engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; (3) damaging or posing an immediate and significant risk of damage to property; (4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or (5) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).

Under 18 U.S.C. 3559, 3571; 42 U.S.C. 271; and 42 CFR 70.18, a person violating the Order may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of no more than $250,000 if the violation results in a death or one year in jail, or both, or as otherwise provided by law. An organization violating the Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death or as otherwise provided by law. The U.S. Department of Justice may initiate court proceedings as appropriate seeking imposition of these criminal penalties.

Little guidance has been issued regarding the Order and it remains unclear how Courts will interpret and administer the Order.

If you would like further clarification or have any questions regarding how this Order may affect you, we encourage you to reach out to your contact at Mansour Gavin or one of the firm’s real estate attorneys to discuss.

On September 14, 2020, Governor Mike DeWine signed House Bill 606, otherwise known as the “Good Samaritan Expansion Bill,” into law to protect people and businesses from tort liability lawsuits stemming from virus transmissions. This law retroactively applies from March 9, 2020, in accordance with Executive Order 2020-01D, and through September 30, 2021.

Across the nation, a rising tide of tort lawsuits have flooded courts, entangling business in litigation surrounding coronavirus transmission. House Bill 606 prevents this practice. The Ohio General Assembly sought to provide certainty to businesses that are re-opening. The legislature recognizes that COVID-19 is a fluid disease and the “best practices” have shifted as more knowledge of the virus is obtained. The purpose of House Bill 606 is to prevent lawsuits against people and businesses for coronavirus transmission. Expressly, House Bill 606 protects persons and business, absent reckless or intentional conduct, from lawsuits seeking damages as a result of transmission of COVID-19.

Lastly, the reach of the “Good Samaritan Expansion Bill” is not solely isolated to re-opening business, but also protects health care professionals from disciplinary conduct for their actions, absent gross negligence, as a result of treating the coronavirus. In short, the “Good Samaritan Expansion Bill” seeks to provides solace, certainty, and stability to reopening businesses from tort liability from COVID–19 transmission.

If you would like further clarification or have any questions regarding House Bill 606, please contact one of Mansour Gavin’s Civil Litigation attorneys.

Brendon Friesen, Mansour Gavin LPA shareholder and Business and Corporate Services Group chair, recently secured two major victories for his clients, Ancient Roots of Wilmington, Ohio and Cielo Processing of Euclid, Ohio.

In January 2019, the Medical Marijuana Control Program (“MMCP”) of the Ohio Department of Commerce (the “Department”) denied both companies provisional licenses to process medical marijuana despite scoring high enough to qualify. Following the administrative appeals, the Department agreed with the legal arguments of Mansour Gavin and awarded both companies licenses. The licenses constitute two of just a handful of the coveted Ohio medical marijuana licenses won on appeal. The processor licenses will ultimately permit both companies to produce and sell products such as vape cartridges, edibles, tinctures, and other cannabis extract products approved by the MMCP.

Mansour Gavin represents Ancient Roots, Cielo Processing, and other companies in the legal cannabis markets of Ohio, the U.S. and abroad. If you have any questions on how we can assist your legal cannabis business, please contact Brendon Friesen or one of our other Business and Corporate Services attorneys.

By: Kenneth E. Smith

Yesterday, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 – the federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion – also applies to discrimination against gay and transgender persons. The ruling is one of the most impactful for employee rights since the enactment of Title VII.

The case, Bostock v. Clayton County, Georgia, examined whether discrimination against gay and transgender persons was inherently based on “sex,” thus triggering Title VII’s protections for sex-based discrimination. In a 6-3 decision, Justice Neil Gorsuch wrote that “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex…[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Supreme Court’s ruling addresses a circuit split over whether discrimination on the basis of sex also includes discrimination on the basis of one’s sexual orientation. The Sixth Circuit – which includes Ohio – had previously held that discrimination against a transgender employee was prohibited under Title VII, while the Eleventh Circuit, for example, had explicitly held that Title VII did not apply to discrimination against gay or transgender workers. Moreover, less than half of the states have laws prohibiting discrimination on account of sexual orientation, gender identity, or gender expression. Now, there is clear federal guidance that such discrimination is, in fact, discrimination based on sex and is thus prohibited under Title VII.

Employers should take note of yesterday’s ruling and ensure their anti-discrimination policies prohibit discrimination on the basis of sexual orientation, gender identity, and gender expression. Anti-discrimination training should include discussion of discrimination against LGBTQ employees and no adverse hiring or employment decisions should be made against a person based upon their sexual orientation or gender status.

If you have any questions on how we can assist your business with anti-discrimination policies or training, please contact one of Mansour Gavin’s Labor and Employment attorneys.

Cleveland, Ohio (May 20, 2020) Kenneth R. Callahan has joined Mansour Gavin as of counsel and is a member of the firm’s Civil Litigation and Corporate and Business Services groups. He 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.

Equal to his depth of experience is his commitment to and support of local professional legal associations and community organizations serving as a Board member, leader, and founder to champion their causes. Ken has been recognized in a variety of ways for the many contributions he has made to the legal community and his alma maters.

Ken earned his J.D. from Cleveland-Marshall College of Law and B.A. from John Carroll University.

Mansour Gavin LPA is a 22-attorney law firm founded in 1954 with offices in Cleveland and Independence, Ohio.