Equal Treatment of Employees May Not Equal Religious Accommodation

The Supreme Court of the United States ruled on Monday June 1, in favor of a woman who sued Abercrombie & Fitch over religious discrimination. The woman alleged that the clothing company did not hire her because of her religious head covering. Many Muslim women choose to wear a head covering called a hijab, and the Columbus-based clothing company argued that the covering was against their dress policy.

The Court ruled 8-1 in favor of the woman, and said that Abercrombie & Fitch failed to accommodate a job applicant’s religious needs. Also of note, the Court stated that the woman need not prove that Abercrombie & Fitch knew that the headscarf was worn for religious reasons, only that the headscarf was actually worn for religious reasons.

Abercrombie argued in the case that their policy was neutral. All employees had to abide by the same rules, so it could not be intentional discrimination. The Court disagreed. “But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual…because of such individual’s religious observance or practice.’ An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an aspect of religious practice, it is no response that the subsequent failure to hire was due to an otherwise-neutral policies to give way to the need for an accommodation.”

Employers need to consider the Supreme Court’s ruling when determining their hiring practices, religious accommodations, and other employment policies. Employers with questions should contact an attorney.

A full copy of the decision by the Court can be found at: http://www.supremecourt.gov/opinions/14pdf/14-86_p86b.pdf

Chad Stonebrook is an Associate Attorney at Lardiere McNair LLC. Lardiere McNair LLC has a practice in which advises and assists both employers and employees with their employment concerns. To read more about Chad, please visit http://www.lmcounsel.com/chads-bio.html.

“Brandon’s Law” may increase the penalties for failing to stop after an accident

Recently, the Ohio House of Representatives passed “Brandon’s Law” or House Bill 110 which seeks to increase the penalties if someone fails to stop after causing an accident. The bill is moving through the Ohio Senate next.

The current law makes it a fifth degree felony if a driver fails to stop “after an accident that results in serious physical harm to a person” and a third degree felony for “failing to stop after an accident that results in death.” See Ohio Revised Code §4549.021.

“Brandon’s Law” would raise the penalties for both to a second degree felony. (Which is a punishment between two to eight years in prison.)

“Brandon’s Law” is named for Brandon Pethtel, a fifteen-year-old boy who was fatally struck by a driver who subsequently fled the accident scene. The driver was apprehended the next day, but did not receive a maximum penalty because he was not charged at the scene.

By: Sunni S. DiNicola, Associate Attorney with Lardiere McNair, LLC. To read more about Sunni, please visit http://www.lmcounsel.com/sunnis-bio.html.

Disclaimer

The information presented here has been prepared by Lardiere McNair for promotional and informational purposes only and should not be considered legal advice. This information is not intended to provide, and receipt of it does not constitute, legal advice. Nor does the receipt of this material create an attorney/client relationship. An attorney client relationship is not established until such time as Lardiere McNair enters in to a written engagement agreement with a specific client for a specific legal matter.

Attention Employers: ADA Reasonable Accommodation Requirements

The American with Disabilities Act does not require employers to give all disabled persons a job, or a job schedule, of their choosing. Rather, the ADA requires employers to reasonably accommodate their disabled employees. Employers should note the use of the word reasonably. A recent case involving the Ford Motor Company helped clarify what is required from employers.

A Ford employee sought to dictate her entire work schedule by working from home four days per week, because of her disability (irritable bowel syndrome). The Court ultimately ruled that Ford did not have to accommodate the woman’s request to work from home four days per week. To come to this conclusion, they looked at a number of factors:

Whether physical presence at the office is an essential function of the job.
1. Crucial to the outcome of this case was that the employee admitted she could not perform four of ten of her essential job functions while at home.

The business model of the employer.
1. The Court recognized Ford’s assembly line type business requires employees to be present at the office to run efficiently.

The job performance of the employee.
1. The Court noted that the employee’s job performance was already subpar, and she was not performing the basic functions of her position. She ranked in the bottom 10% of her peer employees.

Job reliability.
1. The Court stated that the employee’s attendance was already sporadic and unpredictable. On average, she missed 1.5 days per week.

The employer’s other efforts to reasonably accommodate the employee.
1. Here, Ford tried to help the employee in other ways. They adjusted her work schedule by giving her four 10-hour days. They tried working from home on an ad-hoc basis. They offered her other positions that would better allow her to work from home. They offered to move her office closer to the restroom.

Employers should have well designed job descriptions, engage in conversations with disabled employees, and provide reasonable accommodations where necessary.

For more information about the above case, please see Equal Employment Opportunity Commission v. Ford Motor Company at: http://www.ca6.uscourts.gov/opinions.pdf/15a0066p-06.pdf

Lardiere McNair LLC has a practice in which advises and assists both employers and employees with their employment concerns. If you have any questions about the above, please contact an attorney.

Chad Stonebrook is an Associate Attorney at Lardiere McNair LLC. To read more about Chad, please visit http://www.lmcounsel.com/chads-bio.html.

Disclaimer

New Law Will Make it Easier to Obtain Adoption Records

Starting on March 20, 2015, anyone adopted in Ohio between January 1, 1964 and September 18, 1996 can simply pay a fee of $20.00 and fill out a request form from the Ohio Office of Vital Statistics to receive a copy of their original birth certificate and the certificate of adoption. The new law, Senate Bill 23, unseals the records and will allow almost 400,000 people who were previously denied access to Ohio’s birth records.

Link for the request form: www.odh.ohio.gov/vs

However, please note that anyone adopted after 1996 cannot access the records if the birth parents requested their file to be sealed.

By: Sunni S. DiNicola, Associate Attorney with Lardiere McNair, LLC. To read more about Sunni, please visit http://www.lmcounsel.com/sunnis-bio.html.

Disclaimer

Chasing Past Bonuses

Employers should take great care in crafting their contracts, agreements, and benefits plans with their employees, or they could wind up owing them a lot of money.

A JP Morgan Chase Bank, N.A. employee recently sued the company to recover an unpaid bonus. The employee received a base salary of $200,000. In addition, in his thirteen years of employment, he also received bonuses ranging from $45,000 to $210,500. Chase has a bonus program in which if certain criteria are met, the bonus increases in value. The employee was terminated from Chase on January 13, 2012. The bonuses for 2011 were not approved until January 17, 2012 and were paid on January 24, 2012. Therefore, Chase refused to pay the employee his bonus for the 2011 calendar year. Based on the bonus program criteria, the employee was due $247,500.

The bonus program is maintained internally by Chase. It is not signed by anyone at Chase, nor is it countersigned by any Chase employees. Further, the program is completely discretionary and subject to the determination of the Board of Directors. Whether or not individuals satisfy the criteria, is at the sole discretion of Chase. This particular employee testified that he never even saw a copy of the handbook.

Ohio’s Tenth Appellate District recently held that this bonus program was effectively an illusory contract. They have determined that there are genuine issues of material fact, and the employee’s claim has survived summary judgment. We’ll see whether Court ultimately awards the bonus to the employee.

Ohio employers need to be aware of the importance of contracts. In this case, the bonus plan was not signed by anyone, was in the total discretion of the employer, and employees hadn’t even seen the policy. Yet, it’s possible the employee may still be able to recover the benefit. Employers should consider this when drafting employment contracts and benefits packages.

Lardiere McNair LLC has a practice which advises and assists both employers and employees with their employment concerns. If you have any questions about the above, please contact an attorney.

For more information about the above case, please see the following case: Pohmer v. JPMorgan Chase Bank, N.A. 2015-Ohio-1229.

Chad Stonebrook is an Associate Attorney at Lardiere McNair LLC. To read more about Chad, please visit http://www.lmcounsel.com/chads-bio.html.

Disclaimer

Got Potholes?

Now with the rain melting all of the snow and ice from our long winter, more and more potholes are being exposed on the Ohio roads. If you want to report a pothole, all you need to do is visit the Ohio Department of Transportation website or click on this link and report a Roadway Defect. http://www.dot.state.oh.us/damagereport/Pages/default.aspx

Similarly, if your car or property is damaged due to a pothole related incident, again, click on the link and Report a Damage Incident. http://www.dot.state.oh.us/damagereport/Pages/default.aspx

If you do report a damage incident and the department does not respond in a reasonable amount of time (typically within sixty days), you can file a claim with the Court of Claims for $25.00. You will need to fill out a claim form and file in person or mail with any accompanying documents to:

Ohio Court of Claims
The Thomas J. Moyer Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, Ohio 43215

Click here for the Court of Claims website for more information. http://www.cco.state.oh.us/claims-v-the-state.php

By: Sunni S. DiNicola, Associate Attorney with Lardiere McNair, LLC. To read more about Sunni, please visit http://www.lmcounsel.com/sunnis-bio.html.

Disclaimer

AS MARCH MADNESS KICKS-OFF, THE DEBATE OVER PAYING COLLEGE ATHLETES CONTINUES

As everyone hustled to get their brackets filled out for the start of March Madness on Tuesday, a three judge panel for the 9^th Circuit United States Court of Appeals heard oral arguments on Tuesday on the controversial subject of paying college athletes.

In 2009, O’Bannon, a former UCLA basketball player, brought suit against the NCAA alleging that NCAA violated federal anti-trust laws. At issue was the commercial use of the athlete’s names, images and likeness. The District Court originally found that the NCAA was violating anti-trust law, and allowed for yearly payments to athletes for use of their names, images and likeness while the athlete is academically eligible. The Court gave NCAA some flexibility, permitting a cap on these payments at no less than $5,000.00 a year, and also allowed for the funds to be held in a trust until the athlete’s departure from the school or the expiration of the athlete’s eligibility. While colleges would not have to offer the payments, it could put them at a competitive disadvantage. The NCAA appealed this decision last year.

The NCAA is relying, among other things on the 1984 decision handed down in Board of Regents, which opined that the NCAA needs “ample latitude” to play the role of maintaining the “amateurism in college sports.” The NCAA continues to argue that there should be a line between amateur athletics and professional athletics. O’Bannon and his attorneys counter that not paying athletes is anti-competitive and that the Board of Regents decision did not grant the NCAA anti-trust immunity. The 9^th Circuit is expected to hand down a decision in the next few months. However, the 9^th Circuit is the most reversed appellate court in the United States, so even this decision might not be the end to this long-time debate.

Allison Romelfanger is an Associate Attorney at Lardiere McNair LLC. To read more about Allison, please visit http://www.lmcounsel.com/allisons-bio.html.

Sources: National Collegiate Athletic Ass’n v. Board of Regents, 468 U.S. 85, 104 S. Ct. 2948 (1984); O'Bannon v. NCAA, 7 F. Supp. 3d 955, 2014 U.S. Dist. LEXIS 110036, 2014 WL 3899815 (N.D. Cal. 2014); Jon Solomon, O’Bannon vs. NCAA: A Cheat Sheet for NCAA’s Appeal of Paying Players, www.cpssports.com/collegefootball/writer/jon-solomon/25106422/o-bannon-vs-ncaa-a-cheat-sheet-for-ncaa-appeal-of-paying-players, accessed March 20, 2015.

Disclaimer

Need a Lyft? Employment Laws affecting New Age Travel Companies

Peer-to-peer transportation services have changed the landscape for traditional taxi drivers, and now employment laws are going to affect the future of the industry. Uber is available in 53 countries and more than 200 cities worldwide, including the City of Columbus, and was founded in 2009. A rival company, Lyft, was founded in 2012 and was also previously available in Columbus. In January of 2015, Lyft left the Columbus market because of the Columbus City Council making changes to the Business Regulation and Licensing Code. But now, legal questions regarding peer-to-peer transportation and potential changes to the industry are going to the national stage.

Peer-to-peer transportation relies on the classification of drivers as “independent contractors” rather than “employees”. If the drivers can remain independent contractors, Uber and Lyft need not pay them a salary, benefits, provide insurance, gasoline reimbursements, Social Security, unemployment insurance, and workers’ compensation. However, if drivers are found to be employees, then the companies may have to provide some, or all, or the above. On one hand, the classification as an employee could be good for the drivers, as they are likely to make more overall money. On the other, the industry thrives on their low transportation fares, and this change would likely increase the rates for consumers. This classification will have far reaching implications for the peer-to-peer transportation industry.

Uber and Lyft are both currently involved in class action lawsuits to determine whether their drivers are independent contractors or employees. On Wednesday March 11, United States District Judges Vince Chhabria and Edward Chen ruled that juries must decide how Uber and Lyft will be classified. Our firm will be closely watching the outcome of these cases to see if there are changes or clarifications in employment law for classifications of independent contractors and employees.

This status of workers is important to consider for all business. Lardiere McNair LLC has a practice in which advises and assists both employers and employees with their employment concerns. If you have any questions about the above, or independent contractor/employee status, please contact an attorney.

Chad Stonebrook is an Associate Attorney at Lardiere McNair LLC. To read more about Chad, please visit http://www.lmcounsel.com/chads-bio.html.

Disclaimer

Tax Assessment

If you own commercial or residential real estate, the deadline to file an appeal to contest your County’s determination of the 2015 assessed value of the property is Tuesday March 31, 2015. It is important to ensure that the assessment amount regarding their property is accurate. Factors to consider include the size of property, the use of the property, similar properties, the age of the property, and the types of structures on the property. If you believe that your property has been assessed incorrectly, with only a few weeks left, now is the time to file an appeal.

Lardiere McNair LLC has experience with assisting clients in filing tax assessment appeals. If you need assistance in filing your appeal, please contact our firm.

Buying a Business? Check Previous Workers' Compensation Claims

Buying a business can require a lot of due diligence and proper documentation. There are the obvious evaluations, like infrastructure, finances, and employees. However, one cost that many buyers do not consider when buying a business, is their premium for workers’ compensation claims. Buyers beware, those rates can be determined in a way that may not show up on a balance sheet.

A recent Ohio Supreme Court decision regarding an asset purchase agreement, State ex rel. RFFG, L.L.C. v. Ohio Bureau of Workers' Comp., stated that Bureau of Workers’ Compensation is authorized to calculate the new buyer’s workers compensation premium rate based on the predecessor’s experience within the most recent experience period. In other words, if the business you are buying had a number of employees make workers’ compensation claims; your premium is likely to be based off of those numbers.

The Court stated for workers’ compensation purposes, the term “successor in interest” means “simply a transferee of a business in whole or in part.”

Fair or unfair, this can lead to unexpected and astronomical fees for workers’ compensation premiums. Businesses already tend to have low profit margins in the beginning; unexpected fees are not welcome.

Proper documentation that would support a conclusion that the purchaser was only a partial successor to the seller was not provided by the purchaser, and thus the Supreme Court refused to set aside the decision of the industrial commission.

The Bureau of Workers’ Compensation has been authorized to set the premiums based on the predecessor’s experience. Additionally, Courts will defer to the Bureau’s decision in all but the most extraordinary circumstances and intervene only when the agency has acted in an arbitrary, capricious, or discriminatory manner. Thus, not only does the Bureau get to set the fees based on the previous owner, there is very little a buyer can do about it once the fees are set.

Keep in mind that the Bureau of Workers’ Compensation does have a duty to briefly explain the reasoning for their decision and inform the parties of their decision. If a buyer does not receive notice, then that may be an avenue of appeal.

Therefore, buyers of businesses should proceed with caution, and add the above to their list of due diligence. Contact an attorney if you have any questions regarding buying a business or premiums for workers’ compensation.

For more information, see the Ohio Supreme Court case in its entirety:

State ex rel. RFFG, L.L.C. v. Ohio Bureau of Workers' Comp, 2014-Ohio-5199, P1, 2014 Ohio LEXIS 3028, 1, 141 Ohio St. 3d 331, 23 N.E.3d 1172 (Ohio 2014)

THE AFFORDABLE CARE ACT - Could Your Business Face Penalties in 2016?

Who has to comply with the Affordable Care Act (“ACA”)?

Businesses with 50-99 full time and Full-Time Equivalent (“FTE”) employees and Businesses with 100 or more full time and FTE employees.

What is a FTE employee?

A full-time equivalent employee only determines whether or not the ACA applies to you. For purposes of determining whether you have 50 or more employees, you have to consider both your full time employees (those who work 30 or more hours a week) and your part time employees (29 hours or less, who combined, make up a FTE employee). For example, if you have 40 full time employees, and 20 part-time employees who work an average of 24 hours a week (17.3 FTE employees)[1], you actually have a total of 58 employees, which means that the ACA would apply to you.

What happens if I don’t comply with the ACA?

There are two types of penalties. A more severe penalty is applied where an employer offers no coverage at all. A more moderate penalty applies if the employer offers minimum essential coverage under an employer sponsored plan. The first penalty applies if you don’t provide insurance at all, and one of your full time employees receives federal insurance subsidies in the individual exchange. In this case you will pay a penalty of approximately $2,000 per full time equivalent employee for the year (minus the first 30 employees). For example, if you have 50 full time employees, (minus the first 30 would be 20), you would be paying approximately $40,000 in penalties for the year. (If you provide coverage for some months but not others, the calculation is by the month and a little different.)

If you fail to offer coverage that meets the requirements for affordable and comprehensive coverage, the fine is $3,000 per the number of employees who receives federal insurance subsidies in the individual exchange. (Or $2,000 per full time equivalent employee whichever is less.) So again, if you have 50 employees and 3 of them get coverage on the exchange instead of using the coverage offered by you, the fine would be $9,000 (3 times $3,000).

I know the ACA applies to me, now what?

Once you have determined if the ACA applies to you, you must provide health insurance to all full time employees only (i.e. those who work 30 or more hours a week). In 2015 an employer with 100 or more employees must offer 70% of their full time employees health insurance that complies with the ACA regulations or they will pay a penalty. In 2016 both employers with 50-99 and employers with 100 or more employees must offer 95% of their full-time employees health insurance that complies with ACA regulations or they will pay a penalty. The coverage has to be both affordable and comprehensive.

What is affordable coverage?

Affordable coverage is if the “employee’s contribution for individual coverage does not exceed 9.5% of the employee’s income (or between 100%-400% of the federal poverty level).”[2]

What is comprehensive coverage?

“The plan’s share of the health insurance costs must be at least 60% of the costs of covered services.”[3]

There are additional requirements under the ACA, such as reporting, that the Act requires. It is important to ensure you properly determine whether the Act applies to you, and everything that is expected of you under the Act. For more information, or for assistance in determining whether the ACA applies to you, contact us at (614) 534-1355.[4]

[1] 24 hrs x 52 weeks/12 months= 104 hr/mo/employee. 104 x 20 ees= 2, 080 total hrs/mo for 20 ees. 2,080/120(max hr/mo part-time employees)= 17.3.

[2] The Employer Mandate-What does it Mean for your Company?, Info.sequent.biz/ACAheadache

[3] Id.

[4] Sources: http://www.hhs.gov/healthcare/rights/; The Employer Mandate-What does it Mean for your Company?, Info.sequent.biz/ACAheadache; http://www.forbes.com/sites/theapothecary/2013/05/21/employers-can-minimize-their-exposure-to-obamacares-health-insurance-mandate-by-offering-low-cost-skinny-coverage/; http://healthcoverageguide.org/affordable-care-act/shared-responsibility-requirements/#Are+small+employers+that+don%E2%80%99t+offer+health+insurance+required+to+pay+a+penalty%3F

He's Done it Again!

For the fourth year running (fifth overall), Darren has been selected to the Ohio Rising Stars list for Family Law.

Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. This will be the 5th time Darren has been so recognized.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Ohio High School Mock Trial

On January 30, 2015, Sunni DiNicola participated as a Judge for the District competition of the Ohio High School Mock Trial competition, held at the Franklin County Municipal Court. The program is a statewide educational program that gives students an opportunity to learn about the law and constitutional rights, and gives them real world instruction with critical thinking and public speaking.

She reported back to the firm, “I was so impressed with the level of poise and articulation these high school kids had, even their knowledge of the law could give some working lawyers a run for their money.” The teams that advance from the District Competition go on to compete in the Regional Competition in the end of February. To learn more about the program, visit http://www.oclre.org/programs/HSMT.