Excerpts From June 2006

Supreme Court Opens Door To More Retaliation Cases

On June 22, the U.S. Supreme Court expanded the types of actions which constitute discriminatory retaliation. Burlington Northern & Santa Fe Railway Co. v. White. Under Title VII of the Civil Rights Act, an employer may not discriminate against an employee based on the employee's "race, color, religion, sex, or national origin" (the anti-discrimination provision). Under the Act, it is also illegal to discriminate against an individual who opposed any unlawful discrimination or who "made a charge, testified, assisted, or participated in" a discrimination proceeding or investigation (the anti-retaliation provision).

Unlawful retaliation can be found even when there was no actual discrimination. Such was the case in Burlington. Because retaliation is often easier to prove, and requires no underlying discrimination, the number of retaliation cases has been growing. The Supreme Court's ruling is certainly not going to put a stop to this trend.

New IC Salary Continuation Policy

The Industrial Commission of Ohio (IC) recently issued a new policy on how it will handle salary continuation during an employee's injury-related absence. Due to the significant impact of temporary total disability compensation (TTD) on a state-funded employer's premiums, more and more employers are realizing the benefit of salary continuation. This practice involves paying an injured employee full wages while he is off work recovering from an injury or occupational disease, rather than allowing the employee to collect TTD through the workers' compensation system.

The new policy, "Memo C4", can be found on the IC website at www.ic.state.oh.us/appeals/hom.htm (click on "online version" of the manual then go to Chapter C, number 4), and went into effect in May.

New Steps for SI Employers to Follow Before Terminating Payment of Medication

Effective June 1, the Bureau of Workers' Compensation adopted a new rule setting forth the method to be followed by self-insured (SI) employers wishing to terminate the payment of prescription medications in workers' compensation claims. A copy of the new rule is available on the BWC's website at: www.ohiobwc.com/downloads/blankpdf/OAC4123-7-23.pdf.

New Online Social Security Number Verification Program

In order to assist employers with the verification of employee's social security numbers, the Social Security Administration has created a website where verification can be done online: www.ssa.gov/employer/ssnv.htm

How to Offer an Injured Worker Light Duty Work

An employee who is injured at work and cannot return to his former position of employment is entitled to temporary total disability compensation (TTD) for the duration of the disabilty. TTD can be very costly to self-insured employers, and can have devastating effects on a state-funded employers' premiums.

Light duty or transitional work is one very effective way for employers to reduce their costs while helping the employee to remain a productive part of the work force. Historically, if an employee is offered light duty work within his restrictions and refuses to accept the work, TTD is stopped. On March 15, however, the Ohio Supreme Court set forth specific guidelines an employer must follow when making an offer of light duty work. State, ex rel. Ganu v. Willow Brook Christian Communities.

Do you offer "Reasonable" Pregnancy Leave?

The Ohio Pregnancy Discrimination Act (Ohio PDA), federal Pregnancy discrimination Act (PDA) and the Family and Medical Leave Act (FMLA) all require employers to provide employees affected by pregnancy, childbirth or a related medical condition with unpaid leave.

Under the Ohio PDA, termination "of an employee who is temporarily disabled due to pregnancy or a related medical condition" is unlawful if "caused by an employment policy under which insufficient or no maternity leave is available." Accordingly, an employee may be entitled to maternity leave, even if she is not entitled to any leave under the PDA or FMLA. The Ohio Civil Rights Commission (OCRC), pursuant to internal policy, has established that 12 weeks of leave, exclusively for pregnancy-related reasons, and regardless of the employee's length of service, is presumed reasonable and sufficient.

No Deductions Allowed From Exempt Employees' Pay

For purposes of the Fair Labor Standards Act (FLSA), exempt employees are those paid on a salary basis and are exempt from overtime and minimum wage requirements. This exemption can be lost, however, if exempt employees are treated in certain ways as non-exempt. In a recent opinion letter, the Department of Labor (DOL) stated that an employer may not require exempt employees to pay for damage to or loss of company property.

It Depends on What the Meaning of "Consecutive" is...

The FMLA (Family and Medical Leave Act) provides that eligible employees must be granted up to 12 weeks of unpaid leave for qualifying reasons. To be eligible for FMLA leave, an employee must have been employed by the employer for at least 12 months and have worked at least 1,250 hours in the 12 months prior to the leave. FMLA regulations state that "the 12 months an employee must have been employed by the employer need not be consecutive months."

In Rucker v. Lee Holding Co., Rucker worked for Lee Holding Co. for roughly five years, left his job and worked elsewhere for five years, then returned to Lee Holding for seven months before requesting FMLA leave. The employer denied his request for FMLA leave because it believed that Rucker was not an eligible employee. The court, finding no other published court case on the issue, and finding no evidence of legislative intent in the congressional record, ruled that Rucker was not an eligible employee and dismissed his case.