Monday, December 28, 2015

New Rule Interpreting FLSA Gives Overtime Pay Protections to HomeCaregivers

Purpose of the Home Health Care Exemption

The home health care exemption was initially implemented to protect people and their families who need health care but who want to remain in the home instead of going to a nursing home. Congress wanted to provide for this type of care without requiring the person receiving the care to pay overtime. They did this by carving out an exemption to the normal overtime rules. These workers were more akin to baby sitters than they were to doctors or nurses, so it made sense to not require a family paying out of their pocket to have to pay overtime.

Purpose of Overtime

This also makes a lot of sense because the purpose of requiring overtime compensation in the first place is to encourage employers to hire more people, therefore lowering the unemployment rate. The thought was that having to pay overtime to one employee who was working 60 hours per week would create an incentive for an employer to hire another employee to work the additional 20 hours instead of paying the overtime wage rate, thereby serving the additional purpose of providing more work for the otherwise unemployed worker.

New Rule Interpreting FLSA Gives Overtime Pay Protections to Home Caregivers

The new rule interpreting the overtime exemption for home caregivers takes into to account the fact that the home health care industry has developed into a model far different than the single person providing home care for an elderly family member or a family member with special needs. Today, the home health care industry is a powerful group with lobbyists on their payroll. Today, the Home Care Association of America represents more than 2,500 member organizations and over 300,000 employees throughout the United States. That's 300,000 employees who without the rule interpretation will be denied overtime compensation. Surely not the result that was intended when the rules were initially promulgated by the Department of Labor.

Wednesday, December 9, 2015

Steve Sarkisian’s Complaint for Disability Discrimination

How many employees does an employer have to have in order to be covered by the federal and Ohio disability discrimination laws?

Disability discrimination claims can be brought under either state law (if your state has an employment discrimination law) or federal law. Title I of the ADA applies to employers, employment agencies, labor organizations or joint labor-management committees. The Act became applicable to employers with 15 or more employees, beginning July 26, 1994. Under Ohio law, a minimum of 4 employees is required to file a claim for disability discrimination. Additionally, Ohio law allows an aggrieved party to file a “public policy” claim, which may be filed regardless of the number of employees.

What must an employee prove in order to win in a disability discrimination lawsuit?

A prima facie case of disability discrimination in Ohio is shown by proving the following elements: “(1) that he was [disabled or regarded as disabled], (2) that an adverse employment action was taken by an employer, at least in part, because the individual was [disabled], and (3) that the person, though disabled], can safely and substantially perform the essential functions of the job in question.” DeBolt v. Eastman Kodak Co., 146 Ohio App.3d 474, 2001-Ohio-3996, 766 N.E.2d 1040, ¶ 39 (10th Dist.), citing Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571, 697 N.E.2d 204 (1998).

What is the definition of disability under Ohio’s disability discrimination law?

Disability is defined in Ohio as follows: “a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.” R.C. 4112.01(A)(13).
Since the amendments to the federal Americans with Disabilities Act in 2008, the definition of disability has been broadened, at least under federal law.

What happens after it is determined that the employee is disabled and that the employer is covered by the anti-discrimination laws?

Once it is determined that someone has a disability, certain other issues arise which must be ascertained before obligations on the part of the employer arise. Probably the most important issue is whether the employee can perform the essential functions of the position at issue, either with or without reasonable accommodation.

How is it determined whether there is a reasonable accommodation for the disabled employee?

In determining the availability of a reasonable accommodation, the employer and the employee must engage in an interactive process. The legal sufficiency of that interactive process depends on the factual circumstances of each individual case. However, the failure of an employer to engage in the interactive process at all can lead to liability. An important point in this regard is whether or not the accommodation settled upon makes it so that the employee can perform the essential functions of the position thereby making the employee qualified for the position.

How can Steve Sarkisian sue USC for disability discrimination because he is an alcoholic?

There is no doubt about it this is a very tricky area of law for employers. What makes it even more difficult to deal with is that with few exceptions, conduct resulting from disability is considered to be part of disability rather than separate basis for termination.
According to the Equal Employment Opportunity Commission, an employer is not required to excuse past misconduct that violated a uniformly applied conduct rule that is job-related and consistent with business necessity, but an employer must make a reasonable accommodation to enable an otherwise qualified employee with a disability to meet that conduct standard in the future, except when the punishment for the violation is termination.
A number of court decisions have dealt with the difficult issue of an employer’s entitlement to discipline an employee for conduct that is arguably the product of a mental disability or of a condition such as alcoholism or drug addiction.
In Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128 (9th Cir. 2001), the Ninth Circuit, reversing summary judgment, held that the employer could not deny a requested accommodation by citing the plaintiff’s past disciplinary problems, where those disciplinary problems–lateness and absenteeism–had been the result of the same disability–obsessive-compulsive disorder–for which the employee was seeking accommodation.
Creating further uncertainty, is the fact that an employee who is an alcoholic may be held to the same standards of performance and behavior as other employees. 42 U.S.C. § 12114(c)(4). Rejecting ADA claims involving alcohol-related misconduct, see, e.g., Budde v. Kane County Forest Preserve, 597 F.3d 860 (7th Cir. 2010) ; Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995) , cert. denied, 516 U.S. 1048 (1996) ; Gonzalez v. California Personnel Bd., 33 Cal. App. 4th 422, 4 AD Cases 337 (Cal. App. 1995); Dovenmuehler v. St. Cloud Hospital, 509 F.3d 435 (8th Cir. 2007). Similarly, employers may continue to prohibit use of alcohol on the job and intoxication on the job.
So, in the case of Steve Sarkisian, if his workplace misconduct was related to his disability, then USC’s termination of him may have violated the ADA and California law. However, Steve Sarkisian may be held to the same standards of performance and behavior as other employees. Therefore, if other employees would have been terminated for the same behavior, then USC may have an argument.
It will be interesting to see how this case plays out in the Courts.

Friday, November 13, 2015

Wrongful Termination in Ohio

Doctor who was fired claimed was wrongfully terminated

What is wrongful termination in Ohio?

Wrongful termination in Ohio requires a plaintiff to "establish the existence of clear public policy, that a dismissal of employees under the circumstances employed in the particular case would jeopardize the public policy, that the dismissal was related to the public policy, and that the employer lacked an overriding legitimate business justification for the dismissal."

Case Example:

That's just what the jury found happened in the case of McGowan v. Medpace, Inc., 2015-Ohio-3743. That case dealt with wrongful termination in Ohio and the claims made by Dr. McGowan, which were that she was wrongfully terminated in retaliation for reporting what, in her opinion and determination, were violations of HIPAA privacy violations and insurance fraud.

What Damages are Available for a Wrongful Termination in Ohio?

The jury found for Dr. McGowan and determined that her damages totaled $800,000. Of those amounts, $500,000 was for punitive damages; and $300,000 was in lost income. She was also awarded prejudgment interest and attorney's fees, for a total of approximately $1.3 million. The trial lasted approximately 5 hours. The jury was composed of 4 females and 4 males and deliberated for 4 hours and came back with a jury vote of 8-0.

Monday, October 5, 2015

Negotiating a Severance Agreement

Negotiating a Severance Agreement

What is a severance agreement?

Many times when an employee is terminated or is threatened with termination from their job the employer will discuss with the employee the possibility of a severance agreement. Even if the employer does not discuss this possibility with the employee, it may be an option that is worth pursuing. It is particularly important for employees to have representation in these negotiations. One reason why independent representation is critical is that the severance agreement will invariably include a release of all potential claims that the employee has against the employer in exchange for the severance payment. If you believe you have a claim against the employer because the employer may have violated laws that protect employees, it is important to act quickly to protect your rights and contact a Toledo severance agreement attorney to help you in negotiating a severance agreement. I provide counsel, advice and litigation services to workers with claims against their employers, including claims for wrongful termination, retaliation, sexual harassment, gender, race, religious and disability discrimination, hostile working environment, minimum wage and hours and overtime, and other violations of statutory law, including under the Family and Medical Leave Act (“FMLA”), Title VII, the Americans with Disabilities Act as amended, the Age Discrimination in Employment Act, Fair Labor Standards Act, the Civil Rights Act, the National Labor Relations Act (“NLRA”), constitutional claims against governmental entities, and state and federal whistleblower claims.

How does the process of negotiating a severance agreement usually begin?

Most of the time, the employer will draft the first draft of the severance agreement and present it to the employee along with the news that they have been terminated. The employer will provide the employee with a limited amount of time (usually 21 days) to review the severance agreement, sign, and return the severance agreement to the employer. It is at this point, as soon as the severance agreement is delivered to the employee that it is critical to contact an Ohio severance agreement attorney to review the agreement and to advise the employee regarding the severance agreement.

I’ve just been provided a severance agreement after being terminated from my job. Should I try to negotiate a better deal? Do I really need a lawyer to review my severance agreement?

The answer to this is yes and no. No you shouldn’t negotiate the agreement by yourself. And yes, you should contact an Ohio severance agreement attorney to review the agreement and to advise you regarding the severance agreement. A key to any severance negotiation is determining what negotiating leverage the employee has and can use. Whether the employee has leverage in a given situation involves many complicated employment related legal concepts that should be analyzed by an Ohio severance agreement lawyer.

If you are an executive or other professional employee who has been offered a severance package, I can help you. I am a Toledo Ohio severance agreement lawyer and I represent individuals in the negotiation of severance agreements. It takes an experienced attorney to be able to ensure that the basic provisions that should be included in severance agreements are included. Additionally, it is important that more detailed provisions covering specific items be included to protect the employee.
If you have been presented with a severance agreement and want a professional to review the document and advise you on your legal rights, I can help you. I can make suggested revisions to the severance agreement and provide you with proposed additional paragraphs or sections for you to use in negotiating a fair and equitable bargain, or if the situation merits it – I can negotiate the severance agreement directly with your employer.

Please do not hesitate to contact me to discuss how I can help you.

Friday, June 12, 2015

Class Action Waivers in Employment Arbitration Agreements

Class Action Waivers in Employment Arbitration Agreements

Class action waivers in employment arbitration agreements have gained widespread popularity with employers following the Supreme Court’s decisions in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), and American Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013). This is because the ability of Plaintiffs to challenge arbitration clauses containing class action waivers has been eroded greatly. What is absolutely clear following these cases is that plaintiffs’ attorneys cannot successfully challenge arbitration agreements on the sole basis that they contain class action waivers, but there are creative arguments to make.

Does the Arbitration Agreement Contain a Class Action Waiver?

While it may be so simple that it gets overlooked, the first place to start is to determine whether or not the arbitration agreement contains a class action waiver. If there is no class action waiver, but there is an arbitration agreement, then it does not put your client in a poor strategic position to move forward with the class arbitration.

If the arbitration agreement does not expressly specify whether class wide arbitration is permitted and there is no language expressly precluding class arbitration, then you are still able to proceed on a class-wide basis. Employers will argue that in the case of Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010) the Supreme Court ruled that class-wide arbitration is not permitted in such situations. Essentially, Employers will argue that if the arbitration agreement does not expressly authorize class arbitrations, then they are not allowed. However, in Stolt-Nielsen the parties had agreed that they had not reached an agreement on the issue of class arbitrations. That is, the plaintiffs conceded that the agreement was “silent” regarding whether it would allow for class actions. Therefore, the Court held that “[a]n implicit agreement to authorize class-action arbitration…is not a term that the arbitrator may infer solely from the fact of the parties’ agreement to arbitrate.” The Court further held at p. 684 that a “silent” agreement was one in which the parties “had reached no agreement on th[e] issue” of class arbitration and thus such an agreement must be interpreted to preclude it. Plaintiffs can still successfully argue that class action claims are included in arbitration agreements where the language states that “all claims” or “any claims” are covered by the arbitration agreement. Plaintiff’s counsel should refer to these agreements as “not expressly stating” whether class actions are permitted, and then make contractual arguments as to why class actions should be allowed. The focus of the plaintiff’s argument should be the same as in any arbitration case, the text of the arbitration agreement and most importantly, plaintiff’s counsel should never refer or argue that the arbitration agreement is “silent” regarding arbitration of class claims.

Who Decides Whether the Arbitration Agreement Permits Class-Wide Arbitration: the Arbitrator or the Court?

According to the Sixth Circuit, the question of whether an arbitration agreement allows for class proceedings is a gateway question of arbitrability presumptively for the courts to decide, although the Circuits are split and the Supreme Court has not answered the question. Reed Elsevier, Inc. v. Crockett, 734 F.3d 594, 599 (6th Cir. 2013) (“the question whether an arbitration agreement permits classwide arbitration is a gateway matter, which is reserved ‘for judicial determination unless the parties clearly and unmistakably provide otherwise’”). Of course, there is nothing for the Court to decide if the parties’ agreement clearly and unmistakably assigns the question of classwide arbitration to the arbitrator. In that regard, several courts have held that, where an arbitration agreement references the AAA rules, the parties have evinced their intent to let the arbitrator decide the availability of class-wide arbitration procedures (because the AAA rules expressly provide that the arbitrator will determine the question).

To learn more about class action waivers and suits for overtime compensation, contact the Law Office of Charles S. Herman.

Off the Clock Work Under the Fair Labor Standards Act

Employee Recovery for Off the Clock Work Despite a Contrary Company Policy

In the off the clock work case of Bailey v. Titlemax of Ga., Inc., 776 F.3d 797 (11th Cir. Ga. 2015), the Eleventh Circuit decided a case that has important implications for whether an employee may recover under the Fair Labor Standards Act for unpaid overtime where the employee was “acquiescing” in working off the clock.

The Eleventh Circuit found that the supervisor was aware that the employee was working off the clock and the supervisor’s knowledge was imputed to the employer for the off the clock work. This was so, even though the company had a policy which prohibited off the clock work and even though the employee was aware of this policy. This important case essentially held that an employer cannot assert that an employee has unclean hands because the employee did not report all the hours he worked, although there was a company policy that said the employee was required to do so and which prohibited off the clock work. The important point to take away from this case is that if an employee is working off the clock, and the supervisor knows or should have known, then the employer is liable for the unpaid overtime.

Visit to learn more about your rights under the Fair Labor Standards Act.

Probate Process in Ohio

Informal Stages of Estate Administration and Probate of a Will in Ohio

Generally, the chronological summary of the probate process in Ohio and the administration of an estate once opened with the probate court begins with locating the will or other estate planning documents and the initial examination of the will or other estate planning documents by an attorney licensed to practice law in the State of Ohio. Additional informal preliminary stages of the process include meeting with potential beneficiaries identified in the estate planning documents. The opening of the estate must be accomplished in a reasonable time after the death of the decedent.

Formal Stages of Estate Administration and Probate of a Will in Ohio

Next, are the initial formal stages of the probate process in Ohio, such as probating the will, appointment of the fiduciary, and collection of the estate assets. These initial stages of the probate process in Ohio are accomplished by filing particular forms with the Probate Court and happen fairly quickly after the estate is opened.

Final Matters of Estate Administration and Probate of a Will in Ohio

There follows a consideration of inventory and appraisal, tax planning, and filing of accounts. The final matters involve the approval of attorney fees, payment of claims and taxes, distribution of assets, and termination of the estate.

Visit to learn more about the probate process in Toledo, Ohio and Lucas County, Ohio and to see how an experienced Toledo Probate Attorney can help you.