“Do you want ‘sighs’ with that?” : McDonald’s Disgruntled Over Recent NLRB Ruling

The National Labor Relations Board issues a ruling on July 29, 2014 that held that McDonald’s Corp. could be subject to liability, along with its individual franchises, for any wage and labor violations.

Rulings like this emphasize the need to have franchise agreements and other contracts carefully reviewed.

In the United States alone, McDonald’s has more than 14,000 restaurants. About 90 percent of those restaurants are owned by franchisees. This is significant because previously any lawsuits filed against McDonald’s restaurants for wage and labor violations would be filed against the individual restaurant. Because McDonald’s Corp. didn’t directly own the restaurant, they would not have been joined as a Defendant.

This ruling potentially changes the landscape for franchisors. McDonald’s can now be held liable and joined as a Defendant in such labor and wage cases. This exposes them to much more potential liability. It also eases the way for larger nationwide lawsuits, and opens the door for unionization of McDonald’s employees across the country.

McDonald’s provides intense training for its franchisees, and requires them to attend their university upon purchasing the franchise. The NLRB cited this control as one reason to include McDonald’s Corp. as jointly liable. McDonald’s orders its franchisees to strictly follow its rules on food, cleanliness, and most notably, employment practices.

Other franchises around the country are watching the outcome of this closely, as McDonald’s has indicated that it will contest the NLRB’s decision.

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

Expanding the Definition of Sex Discrimination and Sexual Harassment

New rules and guidelines adopted by the Equal Employment Opportunity Commission make it clear that employers are prohibited from engaging in any form of workplace discrimination or harassment against pregnant employees. Any such discrimination or harassment is deemed a form of “sex discrimination” and is illegal.

In support of their decision to update the guidelines, the EEOC cited “persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.” According to reports by the EEOC, there has been a 46% increase in pregnancy-related complaints to the EEOC from 1997 to 2011.

In summary, the new guidelines: (1) prohibit employers from forcing pregnant workers to take leave; (2) require employers to provide any accommodations for pregnant employees that they provide for other temporarily disabled employees; including light duty, alternative assignments, and paid or unpaid disability leave; (3) recognizes impairments resulting from pregnancy as potential disabilities under the Americans with Disabilities Act; and (4) requires employers to treat similarly situation men and women on the same terms.

It is important for employers to be sure employee handbooks and guidelines comply with the new standards adopted by the EEOC.

References: EEOC Issues Updated Enforcement Guidance on Pregnancy Discrimination and Related Issues, U.S. Equal Employment Opportunity Commission, Press Release, www1.eeoc.gov//eeoc/newsroom/release/7-14-14.cfm?renderforprint=1, July 14, 2014.

Pregnancy Discrimination, U.S. Equal Employment Opportunity Commission, www.eeoc.gov/laws/types/pregnancy.cfm, accessed July 28, 2014.

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

In Ohio Eviction Actions, the Real Party in Interest rule does not apply

In a recent Fifth Appellate District decision, a landlord won an appeal from the Mansfield Municipal Court’s order granting possession of the subject premises to the landlord in her forcible entry and detainer action. The issue before the Court was Ohio Civil Rule 17 (A) Real Party in interest, which states that:

“Every action shall be prosecuted in the name of the real party in interest … No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.”

The tenant argued that the trial court erred in failure to obtain ratification in the case. The appellate court disagreed, looking at Ohio Civil Rule 1(C)(3), which limits the scope of the Ohio Civil Rules in actions in “forcible entry and detainer,” and several other courts that have held the real party in interest rule in Civ. R. 17(A) does not apply to forcible entry and detainer actions (Ohio’s Second District, Seventh District, First District and Fifth District.)

In dealing with forcible entry and detainer actions, Ohio Revised Code § 1923.01(C)(2) authorizes the “landlord” to bring the action and defines the “landlord” as “the owner, lessor, or sublessor of premises, or the agent or person the landlord authorizes to manage premises or to receive rent from a tenant under a rental agreement.”

Tucker v. Pfirsch, 2014-Ohio-3151, Richland County, Ohio, Fifth Appellate District.

Divorce, Dissolution or Legal Separation in Ohio

How to determine what is the right choice in your difficult choice to end your marriage.

Divorce

A divorce is typically an adversarial proceeding where one party files a complaint for divorce alleging the grounds for ending the marriage. The other party is served with a complaint and has twenty-eight days to answer the complaint and allege a counterclaim for divorce.

Grounds for Divorce in Ohio

The court may grant divorces for the following causes:

ORC 3105.01

(A) Either party had a husband or wife living at the time of the marriage from which the divorce is sought;

(B) Willful absence of the adverse party for one year;

(D) Extreme cruelty;

(E) Fraudulent contract;

(F) Any gross neglect of duty;

(G) Habitual drunkenness;

(H) Imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint;

(I) Procurement of a divorce outside this state, by a husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while those obligations remain binding upon the other party;

(J) On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation;

(K) Incompatibility, unless denied by either party.

Dissolution

Dissolution is a way to terminate the marriage by agreement, with no fault-grounds necessary. The Parties can simply be incompatible or have lived apart for one year or more. However, both parties must agree to all of the terms of a separation agreement and parenting plan if minor children are involved. The separation agreement divides all assets and liabilities. The parenting plan discusses all matters related to the minor children of the marriage, including custody, visitation and support.

Grounds for dissolution

There are no at fault-grounds for a dissolution because the parties have agreed upon every aspect of the termination of the marriage. A dissolution is a quicker and must less expensive alternative to divorce.

Legal Separation

A legal separation is a court order outlining that the husband and wife will remain married, but have decided to live separately. The court may issue orders dividing the assets and liabilities of the parties, including allocating parental rights and responsibilities of any minor children.

Adoption Law Change

In 2013, House Bill 61 represented hope to Ohioans adopted between January 1, 1964 and September 18, 1996. Near the end of the year, the bill was passed by the Ohio Legislature and signed into law. It will take effect in 2015.

Previously, if you were born in the above timeframe, you were unable to access your adoption files. This included not being able to access your birth certificate without a court order. Those born before January 1, 1964 or after September 18, 1996 did not have the same restrictions.

The new law allows all Ohioans the ability to obtain their entire adoption files provided they meet the minimum requirements:

(1) They are 18 years of age;

(2) They make the necessary request to the Ohio Department of Health;

(3) They pay $20; and

(4) The biological parents did not ask that the files be sealed.

This legislation equals the playing field for all adopted Ohioans, and allows them better access to their own records. It is estimated the law applies to 400,000 people.

If you have questions about adoptions and domestic law, please contact Lardiere McNair LLC. To read the full bill as it was passed by the house, click here.

Could Ohio Domestic Violence Protection Orders Include the Protection of the Family Pet?

In June 2014, the Ohio Senate passed SB 177, which introduces legislation that would amend Ohio’s domestic protection order laws to include the protection of the family pet. The bill is currently being reviewed by the Ohio House of Representatives. The new law would add “companion animal” to what the protective order can protect. The new language will allow the court to protect the victim’s animal from any abuse as well.

According to the American Humane Society, “71% of pet-owning women entering women’s shelters reported that their batterer had injured, maimed, killed or threatened family pets for revenge or to psychologically control victims.”

The protection order granted by the court may include any companion animal that is in the complainant’s or alleged victim’s residence and may issue additional orders as it considers appropriate for the protection of the companion animal, including ordering the removal of a companion animal, or depriving an alleged batterer from seeing the animal or having any contact with the animal. The alleged batterer would not even be able to threaten the companion animal. Essentially, this proposed new law establishes a restraining order for the victim’s pet.

Click here to follow this bill.

Not all of the Supreme Court Justices appreciate the theory of voluntary abandonment of employment in defending workers’ compensation cases

Jacobs v. Industrial Commission of Ohio, 139 Ohio St.3d 86, 2014-Ohio-1560

The Ohio Supreme Court decided on April 15, 2014 that “when a claimant is discharged because of actions that were initiated by the claimant and that were not related to the industrial injury, a voluntary separation from employment has occurred that breaks the casual relationship between the industrial injury and the loss of earnings.” However, Justice O’Neill wrote a scathing dissenting decision calling into question the defense of voluntary abandonment of employment in workers’ compensation cases. We have the feeling this defense will be chipped away at over time. As always, proper documentation and proper record keeping will always help minimize risks of future claims.

Supreme Court rebukes Obama on recess appointments.

The Supreme Court ruled unanimously Thursday that President Obama exceeded his constitutional authority in making high-level government appointments in 2012 when he declared he Senate to be in recess and unable to act on the nominations

What does the Supreme Court’s NLRB ruling mean for hundreds of labor cases?

Talk about timing. If you were with us at our lunch and learn on Wednesday, you will recall we discussed this case.

Hundreds of National Labor Relations Board decisions were thrown into legal limbo Thursday by a Supreme Court ruling that President Obama overstepped his authority by naming three members of the panel while the Senate was on a break.

Obama made appointments to the NLRB at a time when the Senate was holding sessions as a formality every few days to try to prevent the president’s ability to exercise the power.

The NLRB adjudicates employment disputes and oversees union organizing elections, making it a frequent place for political football to occur.

Most of the NLRB decisions thrown into question by Thursday’s Supreme Court ruling are noncontroversial, board officials said. But 100 are before appeals courts because of the legal questions surrounding Obama’s recess appointees.

History reveals not much may really change. In 2010, the Supreme Court threw out decisions made when the labor board attempted to operate with only two of its seats filled. That decision left about 600 cases decided during the 27 months when the board had only two members into limbo. But, in the end, the vast majority of those cases were never brought back to the board, an NLRB official said.

The latest case could result in a similar outcome. “From a financial standpoint, companies are going to have to make a determination about whether they want to pursue these cases, with the likelihood of different decisions being as slim as they are,” said Joe Trauger, vice president for human resource policy for the National Association of Manufacturers.

The content of this publication is intended for general information purposes only, and is not legal advice. Readers should be aware that while certain principles outlined on this site may be similar to principles followed in their own state or province, laws can vary considerably. ©

Employee or Independent Contractor?

Have you ever wondered what the difference is between an employee and an independent contractor? Every situation is different, but here is a list of tips and hints.

• A worker required to comply with others' instructions on when, where, and how to work is usually an employee.

• Training a worker indicates that services are to be performed in a particular manner/method.

• Integration of a worker's services into the business operations indicates control.

• Services to be rendered personally indicates control.

• The right to hire, supervise, and pay assistants shows control.

• A continuing relationship indicates control.

• Set hours for the work indicates control.

• Full time work indicates control. An independent contractor is free to work when and for whom he/she chooses.

• Work performed on a business' s premises suggests control.

• A requirement that the worker submit regular or written reports indicates control.

• Payment by the hour, week or month indicates an employment relationship.

• Payment/reimbursement of business expenses indicates an employment relationship.

• Furnishing of tools and equipment indicates an employment relationship.

• Investment by the worker in facilities indicates an independent contractor.

• Ability to realize profit or loss from services indicates an independent contractor.

• Working for more than one firm or business at a time indicates an independent contractor.

• Services available to the general public on a regular and consistent basis indicates an independent contractor.

• The right to discharge a worker indicates an employment relationship.

• The worker's right to terminate the relationship without liability indicates an employment relationship.

If you have any questions, please contact Lardiere McNair.

National Business Institute

Charles McClenaghan was recently a presenter for a National Business Institute Seminar. Charles spoke at the Estate Planning for Farmers and Ranchers seminar in Toledo, Ohio on May 5, 2014. His presentation covered the Ohio Legacy Trust Act. Use the links below to view a pdf version of the brochure for more information.

Brochure Cover Faculty Description Seminar Schedule

People on the Move

Allison is in Business First! She has an announcement in the People on the Move section.

Congratulations to our newest Associate!

Allison L. Romelfanger passed the Ohio Bar this spring and was also admitted to the Federal Bar for the Southern District of Ohio.

Allison will be practicing in our Litigation and Business practice groups.

Chris Lardiere is Speaking at an Upcoming Seminar

Chris Lardiere is Speaking at an upcoming Seminar

Chris Lardiere is one of the speakers at the seminar "Collection Law from Start to Finish." The Seminar is Tuesday, June 3rd. Click on the link for more details.