Ohio Supreme Court Upholds Appellate Decision Overturning Industrial Commission

Ohio Supreme Court Upholds Appellate Decision Overturning Industrial Commission

State ex rel. Quest Diagnostics, Inc. v. Indus. Comm., Slip Opinion No. 2023-Ohio-2213

In this appeal, the employer won at the Staff Level Hearing Officer level and was overturned by the Workers’ Compensation Review Commission, a rare occurrence. The employer appealed to Court and was successful before both the 10th District Court of Appeals and The Ohio Supreme Court.

Stone, a phlebotomist (draws samples of blood), began her employment with the employer in 1991. In 2018, Stone notified her supervisor that she would be moving to California with her husband, who was taking a new position there. Stone expressed her desire to transfer her employment within the company and, according to her affidavit, was told that she would be permitted to transfer.

Stone submitted multiple transfer requests with the employer in California, which were signed and dated by her supervisor.

Three days later, Stone was injured at work when she fell from a stepladder. Her workers’ compensation claim was allowed for various shoulder injuries. She was released to work with temporary restrictions. For the next few days, Stone’s responsibilities consisted of greeting patients as they entered the office.

Stone informed her supervisor that she was moving to California. Stone had not received any response to her transfer requests. Stone and her supervisor called the employer’s recruiting office, which informed them that Stone could not transfer her employment because she was not certified as a phlebotomist in California.

This new information did not change Stone’s plans to relocate, and Stone’s supervisor asked for a resignation letter. Stone sent her supervisor an email saying, “I am putting in my resignation with Quest Diagnostics due to moving to California this Saturday,” and she moved shortly thereafter. In an affidavit, Stone refers to the resignation letter as a “transfer document” because she intended to become certified and continue to work for the employer.

Stone became certified as a phlebotomy technician in California the following spring. She was not reemployed by the employer. That summer, she applied for temporary total disability (TTD) benefits. She was denied at the District and Staff hearing officer levels. The hearing officers found that she had abandoned the job by resigning with no indication that there was further work for her when she did so.

Stone appealed to the Review Commission for reconsideration. It determined that in denying compensation, the SHO had misapplied the law of voluntary abandonment. The Commission concluded that Stone was entitled to TTD compensation because she did not intend to abandon the workforce and did not voluntarily remove herself from her former position of employment.

The Supreme Court noted that the “question is whether [the] circumstances demonstrate a voluntary abandonment of the workforce—permanent or temporary—such that the injured worker’s wage loss is not the result of the work injury. In other words, do the circumstances indicate that the injured worker would be working—somewhere—but for the injury?” Hence, an injury-induced departure from the workforce (involuntary abandonment) and a departure based on the claimant’s intentional conduct (voluntary abandonment) are mutually exclusive. The former is compensable; the latter is not.

Had Stone not been injured, she would have experienced the same wage loss upon relocating to California without the proper certification. Had Stone remained employed by Quest in Ohio, she would not have experienced any wage loss. Accordingly, Stone’s industrial injury was not the “but for” cause of her lost earnings. Albeit understandable, Stone’s reasons for abandoning the workforce and experiencing lost wages lack the necessary causal relationship to her industrial injury.

What this means for your District
We must always carefully analyze the circumstances of an employee’s departure in the context of a workers’ compensation claim to determine the true cause of the employee’s lost wages. If the loss is due to something other than the injury itself, we may have a defense against liability for TTD payments. Eligibility for TTD compensation has always depended on whether the separation from employment was injury-induced.

Appeals Court Upholds Denial Of Benefits for Employee who Resigned Without Just Cause.

Appeals Court Upholds Denial Of Benefits for Employee who Resigned Without Just Cause.

Gbortoe v. Dir., Ohio Dept. of Job & Family Servs., 2023-Ohio-4844

The Tenth Circuit Court of Appeals (Franklin County) upheld a denial of benefits to an employee who quit work after receiving only a written disciplinary letter.

According to the employee, he resigned his position after “an incident regarding another individual’s gender preferences.” In his telling, he had a phone conversation in which he welcomed a newly promoted member of the team. The employee testified there was no discussion of gender preferences during that call, and it was not until the following week that a different coworker informed the employee about the newly promoted employee’s gender pronouns. The employee responded to this coworker’s comment, expressing he was “not interested” in that topic and he “[does not] believe in that.” That comment led to corrective action meetings with company leadership. In one of the meetings, the employer informed the employee he would receive a disciplinary warning for his conduct.

The manager testified that the employer received a complaint about the employee after he audibly opined the newly promoted employee was not capable of succeeding in their new role. The employer accused the employee of violating the code of conduct by vocalizing his opinion loudly enough to be audible around the office. The manager explained that the employee was issued a written warning, but his job was not in jeopardy at the time of his resignation. In part, the written warning admonished the employee as follows: “You must demonstrate consistently appropriate behavior in the workplace going forward in accordance with [employer’s] Code of Conduct. Failure to do so may result in further corrective action, up to and including termination of employment.”

The employee lost at all levels before the Unemployment Compensation Review Commission and then filed an appeal to the Court of Common Pleas. To no one’s surprise, except perhaps the employee, the Court upheld the Commission’s denial. The employee appealed.

The Court of Appeals held that the employee failed to prove he was entitled to unemployment benefits. “Although he contends his employer created a hostile work environment and threatened to fire him, the record shows employer merely issued [employee] a written warning admonishing him for his behavior. Although the warning noted the employer could impose future sanctions up to and including firing for continued inappropriate workplace behavior, it did not threaten [employee’s] employment status.

What this means for your District
From time to time to time, employees quit and then claim they were threatened with termination or were “constructively discharged,” essentially leaving them with no choice but to resign.

An employee who resigns from employment with good case to do so can obtain unemployment benefits. Such good cause might be the existence of work conditions that are a danger to health and safety when the employer refuses to fix the conditions after being notified (constructive discharge), or the employee was given the option to resign or be fired, and resigned under circumstances where the employer had no cause to terminate employment, If an employee resigns in lieu of being terminated, the Unemployment Commission will analyze whether the employer had just cause to terminate in the first place.

Where here, the employer is not threatening to terminate the employee unless he resigns, and did not refuse to mitigate unsafe working conditions, the employer will be able to defend against the claim for benefits. Make sure you are always documenting the circumstances of an employee’s separation so that you will have evidence to establish what the truth is.

CTC Corner: Ohio Governor Announces Career Technical Construction Grant Recipients and New Equipment Funding Opportunity

CTC Corner: Ohio Governor Announces Career Technical Construction Grant Recipients and New Equipment Funding Opportunity

On November 3, 2023, the Governor announced 35 recipients of $200 million in grant funds for constructing new space for career technical programming enabling more students to receive vocational education in industries such as Agriculture, Construction, Healthcare, IT, manufacturing and more. Among the recipients were JVSDs, Comprehensive Districts, and Compact Districts.  The 35 recipients were selected from among 59 applicants.

Additionally, a new equipment funding opportunity was announced and the application window for that grant is currently open until December 15. 2023. The purpose of the Ohio Career Technical Education Equipment Grant Program is to award competitive grants to schools to establish or expand Career Technical Education (“CTE”) programs, with priority for programs that support careers on Ohio’s Top Jobs List and establish or expand credentialing programs from the Governor’s Office of Workforce Transformation Innovative Workforce Incentive Program list.  Eligible applicants are defined as city, local and exempted village school districts, community schools, Science, Technology, Engineering and Mathematics schools and joint vocational school districts. Eligible applicants “must plan to offer a qualifying CTE program that supports a career on Ohio’s Top Jobs List or a qualifying credential program from the Governor’s Office of Workforce Transformation Innovative Workforce Incentive Program list,” according to the request for applications published by the Department of Education and Workforce. 

Priority will be given to applicants with less than 10% of the student body reported as “CTE concentrators.” A CTE concentrator is a student who has completed at least two CTE courses in a single approved career pathway or program of study. Priority will also be given to applicants proposing programs in priority industry areas, such as advanced manufacturing and telecommunications. 

The request for Applications and additional instructions can be found here.















































































































































































































































































































































































































































































Want to Use Cooperative Purchasing Power for Construction Services? Call Your Representatives!

HB 145, 135th  General Assembly

There is legislation currently pending in the House to clarify that ORC 9.48 applies to construction services.  The attorneys here at Ennis Britton frequently hear from superintendents, treasurers, and business managers from around the State that they would like cooperative purchasing to be more accessible for some construction services.  This is an opportunity to do just that, so now is the time to contact your representatives to support this bill.

By way of background, cooperative purchasing is a procurement process whereby large purchasing power is leveraged to secure a wider range of vendors and better prices.  The contracts available through cooperative purchasing are publicly and competitively secured so the individual district taking advantage of an available contract does not have to go through competitive bidding itself.

In 1997, the General Assembly allowed cooperative purchasing for counties and townships. Then, in 2008, cooperative purchasing was expanded to all political subdivisions of the State, including school districts through section 9.48 of the Ohio Revised Code.

9.48 provides that a school district may acquire equipment, materials, supplies, or services through cooperative (joint) purchasing programs operated by any state or national association of political subdivisions.

Unfortunately, The Ohio Attorney General issued an opinion in 2019 that concluded that political subdivisions could not use cooperative purchasing pursuant to Section 9.48 in order to procure construction services because the statute does not use that term. “If the legislature intended to include “construction services” in R.C. 9.48, it could have used language to do so. R.C. 9.48, however, does not contain the terms “construction” or “construction services.” Consequently, we conclude that the General Assembly did not intend to include construction or construction services among the list of items, which a political subdivision may secure under the purchasing authority described in R.C. 9.48.”

While it is true that an Attorney General opinion is not binding law, school districts are cautioned against using this method or procurement to secure construction services. In the absence of any other interpretation, an auditor or grant coordinator could determine that cooperative purchasing under 9.48 is not a valid method of procurement for construction services using this opinion as support.

This bill would clarify that “services” include “construction services.” This change would grant school districts and other political subdivisions more options, flexibility, and control over their purchasing decisions. The Bill, introduced by representatives Thomas Hall and Brian Lampton, was referred to the State and Local Government Committee on April 28, 2023.

What does this mean for your district?

While caution is warranted about RC 9.48, there are other methods through which cooperative purchasing may be used for improvements. If you have a project for which you are thinking of using cooperative purchasing, contact one of the attorneys at Ennis Britton to make sure you stay in compliance.






































































































































































































































































































































































































































Court of Appeals Holds that a Township’s Email Lists are Not Public Records

Court of Appeals Holds that a Township’s Email Lists are Not Public Records

Hicks v. Union Twp., 2023-Ohio-874

The Twelfth District Court of Appeals (Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble, Warren) recently ruled in a public records case that a township’s email and mail lists, used by the township for the publication of newsletters and other communications, were not public records because the lists did not “document the activities or operations of the office.”

The requester asked for the “the full email list used for township newsletters” and “the full mail list used for township newsletters.” After several exchanges between the requester and the township, during which the requester was repeatedly told that the lists were not public records and would not be produced, the requester filed suit, pro se.

The requester argued, in essence, that the township uses the lists to and keep citizens informed of the activities of the office.  Thus, according to the requester, the lists document the functions and activities of the township.

The Court of Claims appointed a special master and the case was unsuccessfully referred to mediation.

The township administrator testified via affidavit that a third-party vendor facilitates the mailing of the newsletter and the mailing lists for the newsletter. The township also provides an opportunity for interested persons to subscribe and receive the newsletter electronically. On the township website, subscribers are asked to enter their names and email addresses to receive the newsletter.  The township maintains the list, but it is used only for the administrative purpose of issuing the electronic newsletter.

The requester submitted an affidavit of a former township administrator, but it largely focused on the content and development of the newsletter over time. The affidavit confirmed how the lists were maintained.  Based on the affidavit, the requester argued that the “requested information is essential to the ability of Requester to understand and form a critique of a specific function of the government, staffed and paid for with tax dollars.” The requester indicated he desired to obtain the lists to “evaluate the conduct of the newsletter program.” For example, the requester indicated he wished to learn to whom the newsletter was being sent  (residences and businesses, or only residences), if there were any citizens being omitted, if there was an overlap of individuals receiving the newsletter by mail and email, how “well-saturated” the email list was, and whether the emails included “valid or bot accounts.”

The Court of Appeals reasoned that while the lists did constitute “documents, devices or items” which are “kept” by the Township, the third prong of the analysis, (i.e., that the record document the “organization, functions, policies, decisions, procedures, operations, or other activities” of the public office) was not met. The Court looked to precedents which held that simply because an item is received and kept by a public office does not transform it into a record.  Home addresses have been analyzed in other contexts, such as requests for personnel files.  The Ohio Supreme Court has held that “at best, home addresses represent contact information used as a matter of administrative convenience,” and that they “reveal little or nothing about the employing agencies or their activities.” 

 Furthermore, the Court found that the recipients of the newsletters, (who could be anyone, not just citizens) were not part of the decision-making process surrounding the newsletter and they do not assist the township in the performance of its functions.  The Court applied essentially the same analysis to the hard copy mailing list.

What this Means for Your District

Not every record in the possession of the school district is a public record. The document must meet all three parts of the test in order to be a public record. Careful analysis is always required however. It would not be wise to categorically deny a request for a distribution list, for example, without first considering the nature of the list, what it is used for, how the persons on the list are placed there and for what purpose.