by Gary Stedronsky | Jan 15, 2021 | General, Labor and Employment
The Ohio Court of Appeals for the Eleventh Appellate District recently addressed a dispute between the Portage County Educators Association for Developmental Disabilities-Unit B, OEA/NEA and the Portage County Board of Developmental Disabilities. During a labor dispute, members of the union picketed on sidewalks outside the private residences of six Board members and outside the employer of one Board member. The State Employment Relations Board (SERB) determined that was an unfair labor practice based on language in R.C. 4117.11(B)(7), which makes picketing related to a labor relations dispute at the residence or place of private employment of any public official an unfair labor practice.
The union argued that the statute was an unconstitutional restriction on speech because the picketing in question took place on public sidewalks and streets. Those are quintessential public forums where speech enjoys a great deal of protection.
The court of appeals needed to first determine if the unfair labor practice statute was “content-based” or “content-neutral.” Content-neutral restrictions enjoy intermediate scrutiny and are presumed valid. Content-based restrictions are subject to strict scrutiny review and are presumed invalid. In this case, the court found that the statutory restriction was content-based because it prohibited picketing in certain locations only when that picketing was related to a labor relations dispute.
Given the determination that the statute was a content-based restriction on speech, the presumption of unconstitutionality could only be overcome by a showing that the regulation is (a) necessary to serve a compelling state interest; and (b) narrowly tailored to achieve that interest by the least restrictive means. Ultimately, the court found that SERB failed to show that the statute served a compelling state interest or that it was narrowly tailored. As a result, the court held that the statutory language was unconstitutional, and the union did not commit an unfair labor practice.
What this means for your District?
Picketing outside the homes or places of employment of school board members is permissible in certain counties in Ohio. The Eleventh Appellate District has jurisdiction over Ashtabula, Geauga, Lake, Portage and Trumbull Counties. This decision is binding in those counties. The Eighth Appellate District, which serves Cuyahoga County, previously reached the same conclusion in 1998. At least in those counties, an unfair labor practice will not be found if union members picket on public streets or sidewalks in front of board of education members’ homes or places of employment.
The Seventh Appellate District reached the opposite conclusion in 2016. Given the conflict among these courts, it is not clear throughout Ohio whether it is an unfair labor practice to picket outside the homes or places of employment of public officials. It is possible that this decision will be appealed to the Ohio Supreme Court where a definitive answer can be had. We will certainly update our clients if this case is appealed and decided by the Ohio Supreme Court.
by Gary Stedronsky | Oct 14, 2020 | Construction & Real Estate, COVID-19 (Coronavirus), General
The COVID-19 pandemic has impacted our lives and businesses in ways we never envisioned. The real estate market has certainly not been spared. Office space, hotels, restaurants and retail establishments have been particularly hard hit. Demand for office space is likely to decline given our adaptation to working at home. As of July 30th, the American Hotel and Lodging Association reported that more than half of hotel rooms were empty across the country with many hotels being completely closed.1 Many of our favorite restaurants and retail establishments have also been forced to close during the pandemic. All of this is likely to affect real estate values for years to come.
Starting in January, property owners will have the option to file complaints with their county boards of revision seeking to lower the county auditor’s value assigned to their properties (and their tax bills). We anticipate that many property owner’s will take advantage of this opportunity. However, their complaints may be premature. That is because real estate taxes are paid one year in arrears. Thus, any complaint filed next year is for valuation during the 2020 tax year. By law, boards of revision must establish value next year as of January 1, 2020. As of that date, the COVID-19 pandemic had not greatly impacted our lives or the real estate market. Nonetheless, many property owners will not realize this distinction and will file anyway.
County boards of revision understand and appreciate this aspect of the law. However, the individuals who sit on those boards, which sometimes include elected officials, are often empathetic toward property owners who face significant challenges with their commercial businesses or properties. For that reason, it is not uncommon for boards of revision to grant relief even though they technically should not do so under law. They are easily able to do so when property owners are unopposed.
Faced with similar issues during the great recession, the Ohio Board of Tax Appeals made it clear that general references to decreased real estate values will not be enough to sustain a reduction in property value. In Price v. Summit County Board of Revision, 2012 WL 440783 (February 7, 2012), a property owner sought to reduce the value of his properties due to the recession and foreclosure crisis. The BTA rejected his request because it “has consistently rejected the notion that real property values must necessarily rise or fall commensurate with some preconceived notion of ‘historical trending’ or inflationary/deflationary rates.”
To help ensure county boards of revision uphold the law, school districts are advised to strongly consider filing counter-complaints against requests for reduction that appear unwarranted. Under R.C. 5715.19, boards of education are entitled to notice of all valuation complaints that seek to decrease the value of real property by $50,000 or more. Boards of education have the option to file counter-complaints contesting those decrease requests within 30 days of receipt of that notification.
What this means for your district?
Decreases in value through the county board of revision process directly impact the tax revenue received by school districts. Any decrease in valuation will result in a refund issued to the property owner. Those refunds are directly taken from school funding via the county treasurer settlement statements. We anticipate that school districts will face many decrease complaints next year, some of which are sure to be unwarranted. Ennis Britton attorneys can help school districts determine when it is appropriate to file counter-complaints to contest unwarranted decrease complaints to help maintain the tax valuation of the district.
1https://www.ahla.com/covid-19s-impact-hotel-industry
by Jeremy Neff | Oct 2, 2020 | COVID-19 (Coronavirus), General, Special Education
The U.S. Department of Education’s Office of Special Education Programs (OSEP) published a new COVID-19 Q&A on September 28, 2020 (OSEP QA 20-01). While OSEP explicitly cautions that the Q&A “is intended only to provide clarity to the public regarding existing requirements,” it nonetheless provides insights on how long-standing rules and laws will be applied to the novel COVID-19 virus.
In support of school districts that are guiding their decision-making based on the health and safety of students and staff, OSEP repeatedly describes health and safety as “most important” and “paramount.” If a hearing officer or court is making a decision based on the equities (i.e. fairness) the emphasis of OSEP on safety will weigh in favor of schools making reasonable adjustments to how IDEA is implemented. However, OSEP also repeatedly states that school districts “remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities.” This requires an individualized response to COVID-19 that focuses on “each child’s unique needs” and ensures “challenging objectives.”
To strike the balance of protecting health and safety while also providing FAPE, OSEP points school districts to the normal IDEA processes. The Q&A notes that no changes to the law or regulations have been made at the federal level. Interestingly, when discussing the timeline for initial evaluations OSEP advises that states “have the flexibility to establish additional exceptions” to the 60 day initial evaluation timeline. As of this writing, the Ohio Department of Education has not taken actions to allow for COVID-19 specific exceptions from the timeline.
Otherwise, OSEP’s Q&A largely points to approaches that have been addressed in prior “Special Education Spotlight” articles, Ennis Britton blog posts, and in our Coffee Chat webinar series. These approaches include conducting records review evaluations when in-person evaluations are not possible, using virtual team meeting platforms, and delivering services flexibly (e.g. teletherapy, consultation with parents.). OSEP warns against conducting remote evaluations if doing so would violate the instructions of the test publishers.
The discussion of extended school year (ESY) services is perhaps the topic most likely to generate interest in the short-term. After clearly distinguishing ESY from compensatory education or recovery services, OSEP acknowledges the authority of the states to establish standards for ESY. Note that in Ohio the standard is based on excessive regression and recoupment. OSEP proceeds to observe that, understandably, ESY services may not have been provided over the past summer due to COVID-19 restrictions. In such cases, OSEP encourages school districts to “consider” providing ESY during times such as the regular school year or scheduled breaks (e.g. winter break).
The Ennis Britton Special Education Team will continue to monitor and share with clients the latest developments as we navigate this unusual school year. Please contact a member of our team with questions or concerns.
by Gary Stedronsky | Sep 8, 2020 | General
The U.S. District Court in the Southern District of New York recently denied a request for a preliminary injunction to prevent new Title IX regulations from becoming effective on August 14, 2020.
In general, Title IX prohibits discrimination on the basis of sex in schools. It is often used in sexual harassment claims of students involving teacher-on-student harassment or student-on-student harassment. Since 1997, the U.S. Department of Education (the “DOE”) issued guidance discussing how schools should resolve allegations concerning sexual harassment and sexual violence.
The DOE adopted formal regulations in 2020 after publishing a notice of proposed rulemaking in 2018. The regulations contain several provisions that depart from past guidance. The plaintiffs, the State of New York and New York City School District, requested an injunction alleging that the regulations exceed the DOE’s authority; that they are arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with federal law; and that the DOE failed to follow procedures required by law in issuing the regulations.
In order to obtain a preliminary injunction, a plaintiff must show a clear or substantial likelihood of success on the merits of the underlying claim. The court found that it is undisputed that DOE has the authority to promulgate rules and regulations implementing Title IX. It also found that the DOE had the authority to define the operations of a school to which Title IX applies and to specify how the grievance procedure contained in the regulations would apply to both the alleged victim and the alleged perpetrator of harassment. Further, the DOE regulations were not determined to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Therefore, the court determined that the plaintiffs did not have a clear or substantial likelihood of success on the merits so the request for a preliminary injunction was denied.
What this means for your district: The new Title IX regulations became effective on August 14, 2020. Districts should have adopted a revised Title IX policy to comply with the new regulations. In addition, it is recommended that all K-12 employees be trained on the new Title IX regulations because a school district will be presumed to have actual knowledge of sexual harassment if any employee has knowledge of such conduct. To assist our clients with this training, Ennis Britton has recorded a training module that is available to clients for employee training purposes. If you wish to utilize those training modules, please contact Barb Billow via email at bbillow@ennisbritton.com.
State of New York v. United States Department of Education, U.S. Dist. S. NY, 20-CV-4260 (August 9, 2020).
by Ryan LaFlamme | Aug 14, 2020 | General, Labor and Employment, Unemployment
In somewhat of a novelty decision, the Fifth District Court of Appeals of Ohio has upheld a trial court decision affirming the denial of unemployment benefits to 51 non-teaching employees who went on strike after OAPSE and the Board of Education were unable to reach an agreement on a successor contract.
In Ohio, employees are entitled to unemployment benefits in cases of a lockout. However, employees engaged in a labor dispute during which they can continue working while negotiations proceed are not eligible for benefits. Here, the Unemployment Commission found that the employees were engaged in a labor dispute, other than a lockout when they applied for benefits and were therefore not eligible.
The Ohio Supreme Court has defined a lockout as a “cessation of the furnishing of work to employees or a withholding of work from them in an effort to get for the employer more desirable terms.” A lockout can be actual or constructive. A constructive lockout occurs when “the conditions of further employment announced by the employer are such that the employees could not reasonably be expected to accept them and the terms manifest a purpose on the part of the employer to coerce his employees into accepting them or some other terms.”
In reconciling these disputes, the Unemployment Commission will analyze whether the employer will allow employees to continue working under the status quo of the expiring agreement while negotiations continue and whether the employees agree to continue working. It boils down to whether management or the union changed the status quo.
The court found that the record established that the Board did not withhold work in an effort to gain a bargaining advantage. The applicable CBA expired in July of 2017. The parties began negotiating in April of 2017 and the Board permitted work to continue under the preexisting agreement all the way into March of 2019 when the strike commenced. The Court further found that the Board had made a last, best, and final offer to the union but did not implement it or threaten to implement it. Therefore, the Court found that it was not the employer who had changed the status quo. The union on the other hand, did not act reasonably under the circumstances because it could have pulled its strike notice, continued to negotiate and continued to work while doing so, and then it could have ultimately refiled the strike notice if need be. Because it was the union that changed the status quo, and doing so was unreasonable under the circumstances, there was credible evidence for the Unemployment Commission to find that the employees were ineligible for benefits because they were not subjected to a lockout.
Ohio Assn. of Pub. School Emps. v. Unemp. Comp. Rev. Comm., 2020-Ohio-4028
by Erin Wessendorf-Wortman | Jun 29, 2020 | Board Policy & Representation, General, Labor and Employment
The United States District Court for the Southern District of Ohio recently ruled in favor of a school district when an employee brought disability discrimination and retaliation claims after he was terminated for working for the local police department while being out on sick leave. Schwendeman v. Marietta City Schools, S.D. Ohio No. 2:18-CV-588, 2020 WL 519626 (Jan. 31, 2020).
The Plaintiff in this case was a bus driver employed by the Defendant school district, who also worked as a noon duty supervisor throughout the school day. In August of 2016, the Employee was required to have surgery on his foot. Following surgery, the Employee requested sick leave in order to recover. The Employee’s sick leave request was granted and the Employee returned to work on October 27, 2016.
When the Employee returned to work, the District set up a meeting because an employee’s wife had seen the Employee walking around in a Belpre Police Department uniform while out on sick leave. The District called the Chief of Police and discovered that the Employee was a volunteer for the police department, hired through a local subcontracting company. The Employee acknowledged that he was volunteering with the police department, but was not specific as to what days he was working and whether or not he was getting paid. After holding two subsequent meetings, the District was unable to determine which days the Employee was working with the police department or whether he was receiving compensation. Shortly thereafter, the Employee sent the District an email asking about the status of the investigation. The District replied stating the investigation was closed because of their inability to confirm whether the Employee was paid by the police department or by their subcontractor or the exact dates in which the Employee was working while out on leave.
Unsatisfied with the District’s response, the Employee filed Charges of Discrimination against the District with the EEOC and OCRC for the events that transpired throughout the investigation. The Employee’s claims were denied along with his appeals. Shortly after the discrimination charges were filed, the District reopened the investigation in order to defend the allegations stated within the charge. At that time, the District received records from the police department indicating that the Employee had been paid for working six days for four hours a day during the time he was on sick leave.
Upon learning this information, the District sent the Employee a Notice of Suspension and a Notice of Proposed Discharge for working with the police department during his sick leave. The grounds for termination included violation of O.R.C. § 2921.13 “falsification for the purpose of obtaining governmental benefits”, and O.R.C. § 3319.141 “falsification of an application for sick leave from public school employment.” The notices also stated that the Employee was being disciplined for his dishonesty during the school’s investigation. The District ultimately terminated the Employee’s employment for the reasons stated above.
The Employee then filed Charges of Retaliation against the District with the EEOC and OCRC. Again, these charges and the appeals thereof were ultimately denied. The Employee then filed a grievance in accordance with the collective bargaining agreement. The grievance was ultimately withdrawn in order for the Employee to seek legal help. This suit followed.
Lawsuit
The Employee brought an action alleging disability discrimination, FMLA retaliation, Retaliation, and Intentional Infliction of Emotional Distress.
Disability Discrimination under the ADA and Ohio Law
The Court found that the Employee had established a prima facie case of disability discrimination and considered the Employee as “disabled” considering the fact that the Employee had foot surgery and was impaired for three weeks while recovering.
However, the Court agreed that the District had legitimate non-discriminatory reasons for their employment action: falsification of sick leave, falsification of benefits, and dishonesty were legitimate reasons for termination. Further, the Court found that the District had an “honest belief” in the non-discriminatory reason it made in its employment decision and therefore the Employee’s claims were unsupportable. The key inquiry in this regard is to determine whether the employer made a reasonably informed decision before taking action. (Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007).) In this case, the District reopened their investigation into the Employee after receiving charges of discrimination on an honest belief and in pursuit of new information: that the Employee worked with the Belpre PD on six days while on sick leave and had received payment from the subcontractor as a result of working with the Belpre PD while on leave. Upon learning this information, the District sent notices of termination based on these grounds.
The Court further shut down the Employee’s argument that he did not mislead the District nor did he falsify any documentation regarding his surgery or his need for sick leave. The Court determined that a reasonable jury could not doubt the District’s explanation that they terminated him for falsifying sick leave. The District terminated the Employee because they believed he was dishonest and falsified his sick leave. Additionally, the Court noted that even if the District was mistaken in believing that the Employee had been dishonest of falsified leave, such a mistake is not a sufficient reason to doubt the District’s honest belief. (Clay v. United Parcel Serv., Inc., 501 F.3d at 713-15.) Moreover, the Employee’s assertion that the District wrongly assumed he could perform his duties because he was working during sick leave is insufficient to cast doubt on the District’s honest belief. Furthermore, the Employee also failed to establish any evidence that would establish discrimination as the real reason for the District’s employment decision. Thus, summary judgment on the Employee’s ADA and Ohio law discrimination claims were appropriate.
Retaliation Under the ADA
The Employee also brought retaliation claims under the ADA. However, the Court found that there was not temporal proximity between the Employee’s protected activity (filing charges with the EEOC and OCRC) and the adverse employment action (termination). When there is some time lapse between the activity and the adverse employment action, the Employee must couple that with some other evidence of retaliatory conduct in order to show causation. (Little v. BP Expl. & Oil Co., 265 F.3d 357, 365 (6th Cir. 2001).) In this case, the Employee was terminated three months after he filed Discrimination Charges with the EEOC and OCRC. Thus, he must point to some other evidence of retaliatory conduct in order to show causation. The Employee attempted to show this retaliatory conduct by the fact that the District reopened the investigation into the Employee because he filed the Discrimination Charges. However, the Court had already previously determined the District properly reopened the investigation in order to respond to the allegations therein and not as a general response to the charges being filed. Thus, the Court ultimately concluded that the Employee failed to establish a causal connection between his protected activity and his termination. Therefore, his ADA retaliation claim failed.
Ultimately, all of the Employee’s claims failed and were dismissed. This case is support for school districts taking action based on an employee’s dishonest actions while out on leave, even when such action appears in close proximate time to certain protected actions of an employee (e.g. filing charges of discrimination with EEOC and/or OCRC). If a district learns new information it is not prohibited from acting on the new information even though an employee may have sought other legal avenues.
