Ohio Car Tow Settlement

Were you a victim of a towed car in Central Ohio in the last seven years? Cars that were towed by either Shamrock Towing or CamCar between September 1, 2008 and July 17, 2014 may be eligible for “administrative fees” of up to $28.00 after a Franklin County Judge ruled such fees unlawful.

Even if you do not have a receipt from the tow, a claims form must be filled out and notarized, or you may receive a form in the mail.

The deadline to make your claim is May 29, 2015. Please visit http://www.ohiotowclasssettlement.com/ for more information.

Increase in Ohio Minimum Wages

Effective January 1, 2015, Ohio has raised minimum wage requirements. Now, Ohio employers grossing at least $297,000.00 per year must pay minimum wages to non-tipped employees of $8.10 per hour and tipped employees $4.05 per hour plus tips. (Tipped employees are those who “engage in an occupation in which he/she customarily and regularly receives more than $30.00 per month in tips”[1]).

Smaller businesses grossing under $297,000 per year, and those with employees under the age of 16 are required to pay the lower federal minimum wage of $7.25 per hour.

All employers subject to Ohio’s minimum wage must prominently display a current 2015 minimum wage notice. The free poster can be downloaded at: http://www.com.ohio.gov/documents/dico_2015MinimumWageposter.pdf

For any questions relating to this new law, or for any of your other employment law questions, contact us today.

[1] 2015 State of Ohio Minimum Wage Poster, www.com.ohio.gov, accessed January 5, 2015.

Laws to Consider Before Blogging

It seems like everyone has a blog nowadays. Here you are, reading our blog! Blogs are great for companies to generate content and share information and while more and more people and companies are blogging, lawsuits are a potential risk.

“Freedom of the press is a right that individuals have, not just newspapers and television.” New York Times Co. v. United States, 403 U.S. 713 (1971). However, always keep in mind that even protected speech has limits, and bloggers need to be mindful of their audience, plagiarism and very controversial topics.

Some areas of the law to consider when blogging would be invasion of someone’s privacy, defamation, and copyright infringement.

Under Ohio Law, an invasion of privacy is defined as an exploitation of someone’s personality, which would include the appropriation of their name or likeness; publishing someone’s private affairs when the public has no legitimate concern; a wrongful intrusion into someone’s private life which causes outrage, mental suffering, humiliation or shame. Truth is no defense to an invasion of privacy action. (See Ohio Jurisprudence, 2d Privacy § 9.)

Defamation in Ohio is defined as a “false publication that injures a person’s reputation or exposes that person to public hatred, contempt, ridicule, or shame, or affects him adversely in his trade or business.” Dale v. Ohio Civil Service Employees Ass’n., 57 Ohio St.3d 112, 117 (1991).

Copyright infringement happens when the blogger uses someone’s work, like words or photographs, without that person’s permission. Federal Copyright laws preempt Ohio laws.

By all means, go ahead and blog, but please just think twice before hitting send.

Treating Pregnant Women Appropriately in the Workplace

The pregnant woman is one category of employee that employers often are unsure how to treat.  And pregnant women are also often curious about their rights.  The simple answer to these questions is: The Equal Employment Opportunity Commission wants employers to treat pregnant employees as they would treat any other employee.

This, of course, has limitations.  If the employee is healthy, then the pregnant employee should be no different than any other employee.  However, with pregnancy can often come complications.  Some women are unable to perform their duties the same as they would have while not pregnant.  Therefore, the EEOC states that employers should provide accommodations in the workplace that assist the pregnant employee.  This standard is still consistent with treating pregnant women the same as other employees.  Imagine you had an employee who was injured on the job.  The accommodations you would make for that employee should be similar to the pregnant employee.

Further, as a general rule of thumb, pregnant employees should never be discriminated against in the workplace.  This extends to hiring, firing, promoting, compensation, duties, benefits, and more.  Additionally, it extends to current pregnancy, past pregnancy, or potential future pregnancy.  Therefore, as an example, an employer choosing not to hire a young female employee with family aspirations, simply because she may become pregnant, would be discrimination under this standard.

Our country (and state) provides standards to employers for all types of employees.  They can range disabled workers, minority workers, and injured works.  Additionally, there are standards for time off, vacation, benefits, and more that vary based on the size of your business.  If you have any doubts about what your rights are as an employee, or as an employer, we encourage you to speak to an attorney.

For more information, please contact an attorney.

New Ohio Law no Longer Limits Opportunity to Seal Records to First Time Offenders

Ohio recently changed the laws on getting your criminal record “expunged” or “sealed.” On September 19, 2014, a new law went into effect which expanded the group of offenders who can apply to have their criminal record sealed. Before September 19, 2014, only first time offenders could apply to have their record expunged. The new law changed this, and now allows anyone who qualifies as an “eligible offender” to apply to have their criminal record sealed. So who exactly is an eligible offender?

Eligible Offenders include those who have been convicted in Ohio or any other jurisdiction for:

(i) no more than one (1) felony conviction; OR

(ii) no more than two (2) misdemeanor convictions (if not from the same offense); OR

(iii) no more than one (1) felony conviction and (1) misdemeanor conviction.

If you have two (2) or more convictions resulting from or connected with the same act, or resulting from the same offenses committed at the same time, this counts as one conviction for purposes of determining whether you are an eligible offender.

When you have two (2) or (3) convictions that result from the same indictment, information or complaint, guilty plea or official proceeding AND they resulted from related criminal acts that were committed within a three (3) month period (but ARE NOT the SAME act or from offenses committed at the same time) the Court MAY treat these as one conviction. (For example you are charged with theft on May 15, 2014 and June 2, 2014, the Court may treat these convictions as one for purposes of determining if you are an eligible offender).

Other rules come into play when determining whether or not you can apply to have your criminal record sealed, and ultimately, whether or not to grant an “expungement” or to seal a person’s record is in the discretion of the Court. Factors the Court examines includes: whether you are an eligible offender, whether there are criminal proceedings pending against you, whether you have been rehabilitated to the satisfaction of the court, whether the prosecutor filed an objection, and the interests of having the records sealed v. the court’s interest in keeping them open. It is important to check with your attorney to see what options may be available to you under this new law.

Sources: ORC 2953.32, ORC 2953.31, ORC 2953.36, Fresh Start Clinic, Hamilton County Public Defender’s Office, http://www.hamiltoncountypd.org/index.php?page=fresh-start-2.

How marriage AND divorce affects your business: Some important factors to consider

If you have an ownership interest in a business, it may be wise to obtain a pre-nuptial agreement before getting married to protect your interest in that business and keep it a separate property, not part of the marriage.

However, if you neglect to protect that business OR you acquire interest in a business after you are married, any interest that has appreciated after the marriage or anything acquired during the marriage is considered “Marital Property.”

In a divorce in Ohio, the courts typically divide anything considered “martial property” according to an equitable distribution analysis.

Additionally, if you and your spouse are both actively involved in running the business, but the marriage fails, the court encourages the parties to separate all of their interests, including the business interests. The debts and the equity related to the business will be factored into the net value of the business to be divided by the equitable distribution analysis.

The “Honest Belief Rule”, does it Apply to FMLA?

Generally, the “honest belief rule” is a defense available to employers where an employee has brought a discrimination action against them. This rule allows an employer to proffer a non-discriminatory basis for the adverse employment action by establishing its “reasonable reliance on particularized facts that were before it at the time the decision was made.”[1]

However, a recent Southern District of Ohio decision questioned the applicability of the honest belief rule in Family and Medical Leave Act (FMLA) actions. In Yontz v. Dole Fresh Vegetables, Inc., the Plaintiff filed an action against Dole for retaliation against him in exercising his rights under FMLA.[2] Defendant filed a motion for summary judgment, alleging, among other things, that the honest belief rule protected it from liability for terminating Yontz.[3] In questioning whether the honest belief rule could be asserted as a defense in an FMLA action, the Court opined, that while the 6th Circuit has not determined the availability of this defense in regards to the FMLA, “to so rule would be to reward and encourage ignorance of the law our democratic process has seen fit to enshrine in law.”[4] The Court went on to state that even if such a rule would apply in a FMLA case, that this rule is not absolute, and an employer must make a “reasonably informed and considered” decision in taking adverse actions against employees.[5]

As a result, employers should always strive to make sure they are making “reasonably informed and considered” decisions in taking any adverse actions against an employee. Most notably, employers should be aware that while they may hold an “honest belief” in the adverse action taken against an employee, this generally available defense may not be a shield against liability in FMLA cases.

[1] Blizzard v. Marion Tech. College, et. al, 3:09-cv-1643 (ND Ohio, October 19, 2012); Yontz v. Dole Fresh Vegatables, Inc., 3:13-cv-066 (SD Ohio, October 10, 2014).

[2] 3:13-cv-066 (SD Ohio, October 10, 2014).

[3] Id.

[4] Id.

[5] Id.

Copies are Okay, Right? ...Wrong.

With advances in technology, the increased acceptance of "images" for the purposes of authentication have become widely accepted. However, in Ohio, many businesses use Cognovit Notes when credit is obtained. Cognovit Notes are preferred because they streamline the collection process. They allow a confession of judgment. However, not only are they frowned upon in most other states, in Ohio, the laws dealing with Cognovit Notes must be strictly adhered to.

In Buzby v. Chamoun, 2014-Ohio-4676 (October 23, 2014), the Eighth Appellate District Court (Cuyahoga County) found that a cognovit judgment could be set aside because the original was not produced. The statutory provisions regarding Cognovit Notes are strictly construed and must be met in order for a valid judgment to be granted upon a Cognovit Note. The Court determined that there was a complete lack of jurisdiction because of the failure of the plaintiff to produce the original Cognovit Note. The Eighth District cited with approval the Franklin County Tenth District's Decision in Huntington Natl. Bank v. 199 S. Fifth St. Co., L.L.C., 2011-Ohio-3707.

When dealing with business loans and transactions, it is critical to keep track of and maintain the original documents. Technology has not caught up on all fronts and on all issues...yet!

Now is a Good Time to Review Your Employee Agreements

The Equal Employment Opportunity Commission (“EEOC”) has recently taken a stance on agreements between employers and employees.  Specifically, they want to protect employees rights in agreements with employers that waive potential claims and release the employer from liability.  The EEOC has entered into litigation with a number of employers seeking to prevent these agreements.

The EEOC has notably taken issues with the following types of agreements used by employers:

Employers need to be cautious about the language they are including in agreements with employees.  They should seek counsel to ensure all proper steps are taken when drafting the language.  It is important to ensure that the agreements do not explicitly prohibit an employee from filing a charge.  Additionally, there should be a disclaimer stating that no provision of the agreement is intended to interfere with the employee’s right to file a charge with the EEOC.

 

An entity set up and run properly CAN protect a sole shareholder/member

Sole control of a corporation, by itself, is insufficient to establish that the corporate veil should be pierced. To find that such a scheme creates an automatic right to pierce the corporate veil would virtually undue all small businesses functioning as LLCs or sub-chapter S corporations. The true issue is not dominion and control, but whether the shareholder was the "alter ego" of the corporation.

In Erb Poultry, Inc. v. CEME, LLC, the Court of Appeals for Montgomery County (October 10, 2014) held that the corporate veil should not be pierced even when the sole shareholder of a corporation issues stop payment orders on checks. Erb Poultry, Inc. v. CEME, LLC, 2014-Ohio-4504.

A corporation is a separate legal entity from its shareholders even where there is only one shareholder in the corporation. Zimmerman v. Eagle Mtge. Corp., 110 Ohio App.3d 762, 675 N.E.2d 480 (2d Dist. 1996). Therefore, shareholders, officers, and directors will generally not be held personally liable for the acts of a corporation. Charvat v. Farmers Ins. Columbus, Inc., 178 Ohio App.3d 118, 2008-Ohio-4353, 897 N.E.2d 167, ¶21 (10th Dist.). However, in certain circumstances, the corporate form may be disregarded and the corporate veil may be pierced. Belvedere Condominium Unit Owners' Assn. v. RE. Roark Cos., Inc., 67 Ohio St.3d 274, 287, 617 N.E.2d 1075 (1993). In order to reach the personal assets of the corporation's individual shareholders, the creditor must show that "(1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner as to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to the plaintiff from such control and wrong." Id. at 289. The burden of proving these elements rested with Erb. Zimmerman at 772.

OHIO WORKER’S COMPENSATION LAWSUIT SETTLED FOR $420 MILLION

The Ohio Bureau of Workers’ Compensation (“OBWC”) settled a $420 million class action settlement for charging inflated premiums. Business owners may be eligible to share in the settlement, but must submit their form by October 22, 2014.

Eligible business owners were sent a notice from the Settlement Administrator in August of this year and if you received a notice, you should visit http://www.ohiobwclawsuit.com/, click on the Online Policy Information Portal and submit your Ohio Bureau of Workers’ Compensation Policy Number and the claim number listed on any form sent by the Settlement Administrator. If you are a business owner who has not received a notice, but believe you may be eligible, you should contact the Settlement Administrator at (844) 322-8230, as soon as possible.

In 2007, a class action lawsuit was filed against the OBWC alleging that it illegally charged individual employers higher premiums to offset lower prices given to group members. In 2012, the Cuyahoga Common Pleas court initially awarded the business owners $859 million; however the Eight District Court of Appeal reduced the amount to $650 million in May of this year and while it was once again appealed to the Ohio Supreme Court, the case was settled for $420 million. This settlement affects approximately 270,000 Ohio businesses, churches and charities.

The settlement class includes private non-group rated employers who, in one or more policy years from 2001-2008: (1) subscribed to the state workers’ compensation fund; (2) were not group-rated; and (3) reported payroll and paid premiums in a manual classification for which the non-group effective base rate was ‘inflated’ due to application of the group experience rating plan.

Potential new Ohio Law will affect Landlords

The Ohio house has introduced a bill, HB 297, that if passed would allow a tenant to terminate or modify a rental agreement if that tenant or a member of that tenant’s household is a victim of domestic violence.

The bill would require the tenant to notify the landlord within sixty (60) days after filing a petition for a protection order. The Landlord must either allow the tenant to terminate the lease, remove victim-tenant’s name from the lease and/or offer to move the tenant to another unit, if one is available.

The proposed bill will limit the number of requests to terminate a rental agreement to one request of the same landlord in five years.

How marriage and/or a subsequent divorce can affect your business

  1. How to protect your business before you get married

a. An Antenuptial Agreement (also known as a pre-nuptial agreement)

b. A pre-nuptial will carve out business as separate property

c. Ohio does not recognize post-nuptial agreements, but does recognize separation agreements

  1. What could happen if you did not protect your business and your marriage fails

a. Any business interests that have appreciated after the marriage or anything acquired during the marriage may be considered “martial property”

b. The value of your business interest could be considered “marital property” and Ohio divides that according to an equitable distribution analysis.

c. Any value of the business accumulated before marriage is considered your “separate property” and usually is solely awarded to you – however the duty/burden is upon the person attempting to have the property classified as “separate” to prove the same.

d. If you receive a pension or retirement from your business, the value that has accumulated during the marriage is also “martial property.”

  1. What if my spouse and I are both actively involved in the business and our marriage fails?

a. Ohio does not require one party to leave the business simply because the marriage is over. However, the court does encourage the parties to separate their business interests, as well as their marital interests.

b. For LLCs, this may require an amendment to the operating agreement.

  1. What happens to the debts in the business?

a. Debts are also divided those related to the business will be factored into the net value of the business interest that will be distributed.

  1. What happens to your ownership interests in the business if you die before your spouse?

a. Without a pre-nuptial agreement, the spouse may be entitled to some value of your interest.

b. If you wrote a will leaving the entire interest to anyone other than your spouse, your spouse could contest the will.

c. The Operating agreement may state what happens to membership units.

  1. Child Support payments /Requests for business information

a. You must comply with court orders withholding your employees’ wages

b. Make sure you do not commingle your personal income and expenses with your business expenses.

c. Keep accurate business records, the books of a business are discoverable in domestic court.

d. If you are served a subpoena for an employee’s personnel file, you may have to appear in court or hire a lawyer to quash the subpoena or put on a protective order if any of the information sought could be deemed a trade secret or confidential. The court can hold a company in contempt for failure to comply with a subpoena. Always err on the side of communication and transparency, but also with an eye for protection.

Business Valuations in Ohio

The increase in a business during the marriage can, as stated above, be determined to be marital property. The value of a business is proven in court by expert testimony. Said expert is generally selected by the lawyer and hired by the client.

An accurate business appraisal requires gathering the underlying documents and records of the business. The value of the business is measured typically both at the time of the marriage and at the time of the final divorce or dissolution hearing. Marital and separate property are also considered.

Options for a Court to Divide a Business Asset-

-- If enough assets are available, one party would be awarded the business and the other party would be awarded a comparable amount.

-- The business can be sold and the proceeds can be divided.

-- One party could be ordered to buy out the other party- can

For more information or to contact us, go to www.lmcounsel.com.