We provide the employment law newsletter free of charge to current clients. If you are not a current client, you may purchase the newsletter by sending the enrollment form with your $79.00 payment.

Newsletter Subscription Form (52k download)

Excerpts from September, 2006
*The following are summaries of some of the articles presented in our Newsletter. Please contact us to obtain complete copies of past Newsletters.

In our last newsletter, we reported that the U.S. Supreme Court greatly expanded the realm of what constitutes retaliation in response to a claim of discrimination. One Ohio Court of Appeals has wasted no time in taking it one step further.

In Greer-Burger v. Temesi, the Court of Appeals stated "the fact that the retaliation occurred post-employment does not affect the [OCRC]'s ability to satisfy its burden of making a prima facie case for retaliation. Moreover, it is not necessary that the adverse action suffered ... be employment-related or that [the employee] be a current employee of [the employer]."

Earlier this year, the Equal Employment Opportunity Commission (EEOC) issued its Compliance Manual on race and color discrimination. The Manual provides detailed examples and explanations of what constitutes discrimination on the basis of race and color.

In last quarter's newsletter, we reported on the Industrial Commission's new Salary Continuation Policy. One section of the Policy states that a hearing officer has no jurisdiction to rule on salary continuation or determinations of maximum medical improvement (MMI) while an employee is on salary continuation. In a decision issued August 31, the Court of Appeals has essentially revised the Commission's policy. Mosier Indus. Servs. Corp. v. Indus. Comm.

In the past, the BWC has allowed state-funded employers to pay up to the first $1,000 in medical bills for employees who are injured at work, so long as no compensable lost time is involved in the claim. This benefits employers in that the payments are not reflected in their BWC claim costs, and it can therefore help lower the employer's future workers' compensation premiums.

Effective July 22, the BWC increased the amount of medical bills an employer can pay to $5,000 per claim. In order to participate in the $5,000 Medical-Only Plan you need to be aware of -- and comply with -- the program's requirements.

Employers who are self-insured for purposes of workers' compensation (typically those with 500 or more employees) pay injured workers' lost wages directly. Workers' compensation law requires that compensation be paid after an award by a district hearing officer (DHO), even if the employer appeals the award to a staff hearing officer (SHO). The injured worker therefore receives a windfall overpayment if the SHO overturns the DHO's award of compensation.

What happens, however, when a self-insured employer receives reimbursement from the surplus fund, and the claimant is awarded future benefits? In State ex rel. Murphy v. Indus. Comm., the Court of Appeals ruled that the Commission properly ordered the employer to withhold a portion of the claimant's benefits and reimburse the BWC for the amount collected.

FMLA quiz time. Cobb was hired by Contract Transport in June of 2003. Cobb requested time off work in December, 2003 to have his gallbladder removed. Was he entitled to leave under the FMLA (Family and Medical Leave Act)?

Most likely, your answer is no, because Cobb did not work for Contract Transport for at least one year. Unfortunately, under the facts set forth in Cobb v. Contract Transport, your answer is wrong.

When an employee is injured at work, his workers' compensation benefits are based on his "average weekly wage" (AWW). The AWW is calculated by taking the total amount earned during the 52 weeks just prior to an injury or onset of occupational disease, and dividing by 52. The law provides for adjustments to the AWW under "special circumstances".

The Ohio Supreme Court has ruled (twice) that increases in an employee's wages over time could be considered a special circumstance such that a recalculation of the AWW was proper. In a recent decision, the Ohio Supreme Court specifically overturned its two prior decisions and ruled that a natural increase in earnings over the course of time is no longer a special circumstance sufficient to justify recalculation of an individual's AWW. State ex rel. Stevens v. Indus. Comm..

After working for just over five hours, Raymond was injured. She filed a workers' comp claim and an intentional tort case against Shaker Produce. Despite protests by Shaker Produce, the workers' comp claim was allowed. During the course of the intentional tort case, Raymond signed a "Full and Final General Release." It is unclear whether the release specifically mentioned the allowed workers' comp claim.

Shaker Produce then argued that the general release included the workers' comp claim, and therefore the BWC should close the claim. The court ruled otherwise, however, stating that the settlement was neither submitted to, nor actually approved by, the BWC. Raymond v. Shaker Produce, Inc..