by Ryan LaFlamme | Oct 20, 2015 | Labor and Employment, Unemployment
Friedel v. Quota, 2015-Ohio-4060
The Sixth Appellate District (Williams County) has reversed a trial court ruling which overturned the unemployment Commission’s (ODJFS) grant of benefits to a truck driver who quit his job. At the initial hearing, the truck driver claimed to have quit because his truck broke down and his employer refused to assist.
The truck driver claimed that the employer provided debit card did not have enough funds to make the repairs, that the employer refused to assist because he was intoxicated and that he had to summon his son-in-law to the scene for assistance, who had to drive eighty miles in the middle of the night.
The employer testified that his understanding at the time of hire was that the employee was able to make minor repairs, that there were in fact sufficient funds on the card provided, that the employer recommended he call his son-in-law because he was employed as a road services tech and that the trip was only thirty miles.
ODJFS found in favor of the employer denying the benefits and finding that the employee quit without just cause. The employee appealed. At the appeal hearing, the truck driver claimed for the first time that he quit because his employer asked him to violate federal regulations regarding down time for truck drivers who have driven a certain number of hours. The employee claimed that the employer insisted that he drive a route in violation of law. This caused an argument to ensue and the employee quit. The employer did not participate and the initial decision was reversed, finding that the employee had just cause to quit and was therefore entitled to benefits.
The employer unsuccessfully appealed to the Review Commission and then to the trial court. Before the court, the employer challenged the employee’s credibility by questioning why the employee set forth his most recent justification for the first time on appeal. The trial court agreed finding that the employee had really quit because of the roadside breakdown incident and found in favor of the employer.
ODJFS appealed to the Sixth Appellate District. There, the Court reviewed the standard on appeal. Courts reviewing decisions of the Unemployment Commission are to limit their inquiry as to whether the decision by unemployment is “unlawful, unreasonable, or against the manifest weight of the evidence.” This is a high standard. That reasonable minds might disagree is not enough for a court to overturn the unemployment decision so long as there is “some competent, credible evidence in the record” to support it. The Appellate Court found that the Trial Court had improperly considered the credibility arguments on appeal because there is no rule providing that a claim or defense is waived if not made in the initial application or hearing.
Accordingly there are lessons to be learned from this case:
1. Do not rest until the fight is finished. Here, the employer did not participate in the appeal where the employee’s ultimately successful argument was made. Credibility could have been attacked at this time, rather than improperly before the court. Therefore, make sure you are represented and are participating at all levels of the appeal.
2. The standard on appeal to a court of common pleas is difficult. Courts are generally limited to the record provided by ODJFS. The scope of the review by the court is limited as to whether the hearing officer’s decision was “unlawful, unreasonable, or against the manifest weight of the evidence.”
Please do not hesitate to contact an attorney at Ennis Britton Co., L.P.A., with your questions regarding unemployment.
by Ryan LaFlamme | Sep 10, 2014 | Workers’ Compensation
Along with the Mid-Biennium Budget Review and other education related bills signed into law earlier this summer, HB 493 became law and becomes effective on September 17, 2014. This bill focuses solely on the workers compensation system and impacts all employers, including school districts. These are mostly fiscal changes and some of the highlights are as follows:
1. Requires, rather than permits as under former law, the Administrator of Workers’ Compensation (the “Administrator”) to calculate workers’ compensation premiums for most employers on a prospective, rather than retrospective, basis, beginning policy year 2015. Public employers, other than state agencies, will transition to prospective payment of premiums by the policy year commencing on January 1, 2017.
2. Allows the Administrator to adopt rules to permit periodic premium payments and to set an administrative fee for these periodic payments.
3. Revises the requirements for qualified public sector payroll reports. For each policy year commencing on or after January 1, 2016, BWC must to furnish to the fiscal officer of each taxing district public employer (which includes school districts), by November 1, forms showing the estimated premium due from the public employer for the forthcoming policy year. On or before February 15 immediately following the conclusion of a policy year, the fiscal officer must report the amount of money expended by the public employer during the policy year for the services of employees covered by Ohio’s Workers’ Compensation Law. BWC must then reconcile the report with the premiums and assessments charged to the public employer to account for the difference between estimated gross payroll and the actual gross payroll. The public employer must immediately pay any balance due to BWC, and any balance found due to the public employer must be credited to the public employer’s account.
4. Increases, beginning in policy year 2015, the additional amount of premium or assessment due from an employer who fails to timely submit a payroll report from 1% of the amount due to 10% of the amount due and eliminates the cap for the penalty amount.
5. Requires, beginning in policy year 2015, the Administrator to adopt a rule to allow the Administrator to assess a penalty on an employer who fails to pay a premium or assessment when due at the interest rate established by the State Tax Commissioner for most delinquent taxes and eliminates the existing tiered penalty system.
6. Eliminates the requirement to obtain Ohio coverage for an out-of-state employee who temporarily works in Ohio if the employee’s home state law lacks a provision similar to the Ohio law that exempts out-of-state employees temporarily working in Ohio from the duty to obtain Ohio coverage.
7. Allows the Administrator to pay for the first fill of prescriptions occurring during an earlier timeframe than under continuing law (normally after either the Staff Hearing Officers determination of the issue or the final judicial determination, if applicable). The Bill also allows for the first fill of prescriptions to be charged to the Surplus Fund Account if the claim is ultimately denied and the employer is a state fund employer who pays assessments into that account.
8. Eliminates the requirement that most self-insuring public employers annually obtain an actuarial report certifying the sufficiency of reserved funds to cover the costs that the employer may potentially incur under Ohio’s Workers’ Compensation Law and the reliability of computations and statements made with regard to those funds.
9. Permits a state fund, taxing district employer (which includes a school district) to participate in the “One Claim Program.” Under that Program, the employer may mitigate the impact of a significant claim that comes into the employer’s experience for the first time and that is a contributing factor in the employer being excluded from a group-rated plan under the BWC’s group rating program. Under former law, only private sector state fund employers could participate in the One Claim Program.
Please feel free to contact us to discuss these or any other changes and for general workers’ compensation related inquiries.
by Ryan LaFlamme | Apr 25, 2014 | General
State ex rel. Jacobs v. Indus. Comm.
This month, the Ohio Supreme Court upheld a denial of temporary total disability (TTD) benefits for an employee based on job abandonment. TTD benefits serve as wage replacement for employees who have suffered a workplace injury which causes the employee not to be able to return to work. Generally, an employee cannot be terminated for absenteeism while receiving TTD benefits.
Here, the employee was released to work with restrictions which the employer accommodated with a light duty assignment that met the restrictions in place. The employee accepted the light duty assignment, reported to work for one hour, and then left complaining of pain and indicating that she was going to visit her doctor. The employee did not return to work and the employer confirmed that the employee did not visit her doctor. The employer sent two letters to the employee over a 15 day period indicating that the employee was AWOL and in jeopardy of termination. The employee was then terminated for job abandonment after failing to respond to the letters.
Subsequent to the termination, the employee sought TTD benefits which were denied based on her termination for job abandonment. The employee argued that she was unable to return to work due the industrial injury (the basic standard for awarding TTD), that she had not abandoned her job because reporting her inability to continue her light duty work constituted a rejection of the employer’s light duty offer, and that because the employer terminated her while she was disabled, the employer could not argue that she voluntarily abandoned her job. The Industrial Commission as well as the lower courts rejected these arguments.
The Ohio Supreme Court rejected the employee’s arguments as well, holding that by accepting the employer’s light duty offer, she was subject to the employer’s absenteeism policy. Further, the employee failed to provide any medical certification that the light duty work was beyond her capabilities, let alone providing any explanation at all for her failure to return to work. The Court concluded; “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 causal relationship between the industrial injury and the loss of earnings.”
Accordingly, employers should be aware that employees serving in light duty assignments can be treated just like any other employee with regard to workplace rules and regulations.
by Ryan LaFlamme | Nov 26, 2013 | General, Workers’ Compensation
One of the goals of the workers’ compensation system is to get employees back to work as quickly and as safely as possible. One way that employers may be able to bring employees back quickly is by offering light duty work to the employee. In order to enable the employee to accept light duty work, it must accommodate any restrictions the employee’s physician of record may order with regard to physical activity. Simply creating busy work for an employee to return to may not always be efficient and there are some employees who may be completely disabled due to their work injury or who may have restrictions that an employer cannot accommodate. Accordingly, not all claims are open to this particular remedy.
However, where an employee has restrictions but cannot return to the former position of employment, employers should at least consider whether light duty work can be created. In addition to getting the employee acclimated to working again and perhaps hastening the time in which the employee can return to the former position of employment, offers of light duty work can also be a means to bring and end to stagnating periods of temporary total disability.
Temporary total disability is a wage substitute for claims in which the employee, due to the work related injury has suffered a disability which prevents them from returning to the former position of employment. Where the employer chooses not to provide salary continuation, the Bureau will pay wage substitute benefits to the employee. Temporary total disability benefits can only be cut off under certain circumstances:
- The employee returns to the former position of employment or any other work for any employer.
- The employee is released by the employee’s physician to return to the former position of employment.
- The employer offers the employee work within the employee’s physical capabilities.
- The employee has reached maximum medical improvement.
- The benefits have been paid due to a substantial aggravation of a preexisting injury and the injury has returned to the level it was prior to the aggravation.
Caution is advised as it is not enough to simply inform the employee that light duty work is available. The offer must identify the position offered and must include a description of the duties required of the position and clearly specify the physical demands of the job. For example, if the job will require lifting, information on the weight and frequency involved. An oral job offer is acceptable, but if the employee refuses and the employer desires to use that refusal as a basis for terminating temporary total disability benefits, the offer must be reduced to writing.
Therefore, the best practice for any light duty offer would be to make the offer in writing, by certified letter, which clearly identifies the work available, and which clearly describes the duties and physical demands. Skip the oral offer and start off with a written offer as it must be in writing to be enforceable in any case.
by Ryan LaFlamme | Jun 28, 2013 | Labor and Employment
Vance v. Ball State Univ., 11-556, 2013 WL 3155228 (U.S. June 24, 2013).
Univ. of Texas Sw. Med. Ctr. v. Nassar, 12-484, 2013 WL 3155234 (U.S. June 24, 2013).
On Monday, June 24, 2013, the U.S. Supreme Court ruled on two cases involving Title VII harassment claims. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, sex, religion, or national origin.
In the case of Vance v. Ball State University, the Court addressed the definition of a “supervisor” as it relates to Title VII harassment claims. In University of Texas Southwestern Medical Center v. Nassar, the Court addressed the appropriate standard to determine whether an employer engaged in retaliatory actions against an employee.
In Vance, an African-American employee of Ball State claimed that she had been racially harassed by a co-worker causing a hostile work environment. She claimed that the co-worker was her supervisor, and as such, the University should be held to a higher standard of liability. Under this higher standard, the University would be liable unless it could prove that (1) it used reasonable care to prevent the harassment and (2) the employee was unreasonable in not taking advantage of the opportunities provided by the employer. On the other hand, if the co-worker was not a supervisor, as argued by the University, the University would only be liable if found to be negligent.
The Court indicated that a co-worker is a supervisor under Title VII only if the co-worker is given the authority by the employer to engage in “tangible employment actions” against the employee. Tangible employment actions include actions such as hiring, firing, reassigning different responsibilities, changing employment benefits, and promoting/failing to promote. The Court indicated that the co-worker in this case was not a “supervisor” of the complainant because the co-worker did not have the authority to engage in tangible employment actions against the employee.
In Nassar, a physician of middle eastern descent claimed that the University of Texas Southwestern Medical Center violated Title VII when (1) his supervisor allegedly discharged his employment as faculty for the University due to racial and religious discrimination and then (2) another supervisor retaliated against him because of his complaint regarding the alleged discrimination by preventing him from being hired at a local hospital.
As is the test used with some types of Title VII discrimination claims, the physician argued that the motive of retaliation need only be a motivating factor of the employer’s actions, allowing for other legal factors to also play a part in the employer’s actions. The Court ruled against this argument by determining that with regard to Title VII retaliation claims, an employer’s actions must be more than partially motivated by retaliation and must meet the higher standard of “but-for” cause; “But-for” the wrongful action (retaliation), the consequence (loss of job) would not have occurred. Therefore, the retaliation must be the reason that the employer acted, rather than one factor among many.
