Older Worker Benefit Protection Act (OWBPA)

Severance agreements: departing employees 40 years of age and older receive special legal protections when it comes to severance agreements under the Older Worker Benefit Protection Act (OWBPA). The severance document must contain certain language advising the employee of their rights under federal law, and must advise them to take the document to a lawyer to have it reviewed.

The OWBPA requires a mandatory waiting period of at least seven days between the time you originally enter into the agreement and the time when the agreement can be countersigned and the severance paid. This cooling-off period could be used for the employee to go to a lawyer, who might advise them of their opportunity to file a legal claim or threaten a lawsuit instead. The OWBPA also ensures that no employee is coerced or pressured into signing legal waivers of rights under the Age Discrimination in Employment Act (ADEA).

Under the OWBPA, employees eligible for early retirement incentive plans must be provided with complete and accurate information concerning what benefits are available under the plan. If certain conditions of the OWBPA are met, employees may legally sign waivers of their ADEA rights to sue for age discrimination.

There are nine main conditions an employer must provide to employee's in their retirement waiver to comply with the OWBPA:

1. In return for signing the waiver, the employee must be given something more than what he/she is already entitled to by right. If an employer provides a severance package to all employees as a matter of right, then older employees must be given something of value in excess of the severance pay in exchange for their waiver of ADEA rights.
2. The waiver must be part of an agreement between the employer and the employee and must be written in clear and unambiguous language, absent of any jargon or legalese, and “calculated to be understood” by the employee.
3. Prior to the execution of any waiver in connection with an incentive or other employee retirement termination program offered to a group of employees, the employees must be informed in writing about the class, unit, or group covered by the program, any eligibility factors for the program, and any applicable time limits.
4. The employer also must make clear to employees the job titles and ages of all individuals eligible for the program, and the ages of all individuals in the same job classification, or organizational unit who are not eligible or selected for the program.
5. The waiver must specifically refer to rights or claims arising under the ADEA (discrimination because of age in employment or employment benefits).
6. After signing the agreement, the employee has seven days to revoke it, and the agreement is not effective until the end of the seven days.
7. The employee must be advised in writing to consult with a lawyer before signing the agreement.
8. The employer must provide employees with sufficient time to consider the waiver. Before signing the agreement, an employee negotiating a waiver must be given 21 days to consider the matter. If the employee is part of a group of employees being offered an early retirement incentive program or other employment termination program, he/she must be provided 45 days to consider the matter before signing the agreement.
9. An employee may not waive rights or claims which may arise after the date the waiver is executed.

If a waiver becomes invalid, must an employee return the money he originally received in exchange for signing it before he can challenge it in court?  The U.S. Supreme Court in 1998 made a ruling that employers must draft valid waivers. They ruled that if a signed waiver is later found invalid, the employee: 1) can file a discrimination lawsuit; and 2) does not have to give back the money he already received in exchange for signing the waiver. Oubre v. Entergy Operations, 522 U.S. 422.

What does the court consider in determining the validity of a waiver? Courts consider the totality of circumstances based on some of the following but they can look at other factors too: the employee's education and business experience; respective roles of the employer and the employee in deciding the provisions of the waiver; clarity of the agreement; amount of time in which the employee had to study the agreement; whether the employee  was able to consult with legal counsel; and the consideration the employee received for signing the waiver, such as severance.

Age discrimination claims are common when there is a reduction in workforce, particularly of long time employees. The OWBPA also established specific requirements for a "knowing and voluntary" waiver of ADEA claims.

Age Discrimination in Employment Act (ADEA)

The ADEA is federal law regarding age discrimination in the workplace. Many states also have laws prohibiting private persons, organizations and governments from discriminating against people because of age. Under the ADEA and most State laws workers over the age of 40 are protected.


What are some of the ways an employer can discriminate in the workplace? Through job advertisements and recruitment; hiring; firing; pay; compensation; benefits both regular and fringe; apprenticeship programs; serverance packages where they require you to waive your right to sue; and possibly through age preference or age limitations in job notices or advertisements; harassment due to your age; not providing equal benefits; and retaliation after filing a claim or participating in an investigation of age discrimination.


Who investigates age discrimination claims? In Ohio, it can be the EEOC (Equal Employment Opportunity Commission) or the (OCRC) Ohio Civil Rights Commission. An employee who believes they have been discriminated against must file a claim with the EEOC or OCRC within 180 days after the age discriminatroy act occurred. If you don't file within the 180 days, you lose? The investigators have one year to investigate your claims. After 90 days of investigation time you can request a "Right To Sue" letter from the EEOC, hire a private attorney and pursue your age discrimination case in a Court of Common Pleas in the county where the discrimination occurred.


Under Ohio law, a case of age discrimination may be proved either directly or indirectly. An employee "may establish a case of age discrimination directly by presenting evidence, of any nature, to show that an employer more likely than not was motivated by discriminatory intent. If, however, the employee is unable to establish a causal link or nexus between the employer's discriminatory statements or conduct and the act that allegedly violated the employee's rights under the statute, then the employee has not proved age discrimination by the direct method of proof. Without direct proof of discrimination, an employee may establish a claim of age discrimination indirectly by demonstrating he or she (1) was a member of the statutorily protected class, (2) was discharged, (3) was qualified for the position, and (4) was replaced by, or the discharge permitted the retention of, a person of substantially younger age.  If a plaintiff establishes a case of age discrimination, the burden shifts to the employer to provide some legitimate, nondiscriminatory reason for the action taken. If the employer establishes a nondiscriminatory reason, the employee then bears the burden of showing the employer's proffered reason was a pretext for impermissible discrimination. The employee must demonstrate the employer's nondiscriminatory reason was pretextual (a false or weak reason or motive said to hide the actual reason or motive). While age-related comments directed toward the employee may support an inference of age discrimination, isolated, ambiguous, or abstract comments cannot support a finding of age discrimination.


Hostile work environment under the ADEA. The criteria for a claim of hostile work environment under the ADEA is  the emplyee has to be 40 years of age or older; the employee was subjected to harassment either through words or actions based on age; the harassment had the effect of unreasonably interfering with the employee's work performance and creating an objectively intimidating, hostile, or offensive work environment and there exists some basis for liability on the part of the employer. We must keep in mind that a discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Further, whether harassment is sufficiently severe or pervasive to create an abusive work environment is quintessentially a question of fact. A court must consider all of the relevant circumstances in order to determine whether an environment is hostile or abusive. These circumstances “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a merely offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.


If I win what damages can I get?  Compensatory damages such as: back pay for any income you have loss, attorney fees, emotional distress, force employer to re-hire you, lost future wages. Punitive damages which serve to punish an employer for their bad behavior.


Always talk to an attorney before filing a claim with EEOC or OCRC. Always talk to an attorney before you sign a waiver of your rights to sue or a severance package.

Planning for Divorce: Documents You Need and Other Considerations

1. Becoming a financial victim by not planning for your divorce.
2. Have copies of your marriage certificate, state/county/city/date of marriage.
3. Common mistake is relying more on the advice of family and friends than on your lawyer.
4. Common mistake is withholding information from your lawyer because you’re afraid of things you said or did will get you into trouble.
5. Common mistake is letting your emotions control your decisions, keep your emotions under control, use your head not your heart.
6. Not knowing your assets and their worth.  Real estate, cars, trucks, boats, jet-skis, household furniture, furnishings, bank accounts, investments, stocks, stock options, bonds, other securities, 401k, pensions, IRA’s, life insurance, annuities, oil and gas interests, royalties, antiques, guns, coins, jewelry, fine art, property owned prior to marriage, accounts receivable, investment property, rental properties, vacation homes.
7. Bringing an emotional attachment to assets.
8. Failure to Consider the Impact of Taxes.
9. Not Understanding the Rules of Retirement Accounts.
10. Overlooking Debt and Credit Rating Issues. Credit cards, debit cards, notes payable, loans, medical bills, utilities.
11. Get a copy of your credit ratings from all three companies.
12. Not Maintaining Control Over Insurance Policies
13. Failure to Accurately Budget
14. Failure to Identify Hidden Assets
15. Failing to include college costs for the children and impact of inflation

16. Failing to take into consideration Social Security Benefits
17. Failing to adequately insure the divorce settlement. If premature death or disability occurs this could affect spousal support, child support, college tuition of property settlement.
18. After divorce failing to change will and beneficiaries
19. Counting on your ex to honor financial commitments.
20. Failing to make a clean financial break.
21. Hanging onto the house at all costs.
22. Consider changing your name to maiden name.
23. Prepare for health coverage after the divorce.
24. If domestic violence has occurred: consider name change of children and social security numbers changed for children and wife/husband victim.
25. Vital documents you should have for the divorce.  Prenuptial agreement, Deeds, mortgages, closing statements, tax records/returns (5 years), real estate appraisals, pay stubs both spouses, bank statements, canceled checks, deposit slips (at least 5 years bank records), monthly expenses, home improvements, records of all sources of income, judgments against either spouse, judgments held by either spouse, records of previous child support payments, charge card statements 3 years, all promissory notes, car loan documents, dividend and interest statements, safe deposit box list of all contents make copies, documentation of any inheritance, loan applications (car, personal loan, any other), savings account statements, statements of certificates of deposits, IRA statements, trust documents, other documents sowing savings, life insurance policies, property and liability insurance policies, disability insurance policies, family hospitalization plan/insurance coverage, living wills, durable power of attorney for health care, durable power of attorney financial, advance health care directives, appointment diaries, U.S. Passports, copies of power of attorney, claims made for auto accidents/accidents at work, workers compensation claims, unemployment claims, claims against others for damage, resume of both parties, Keogh plan documents, 401K documents, pension plan records, business tax returns 5 years, business bank statements, canceled checks and deposit slips, business loan documents, business appointment diaries, advertising brochures and material given to prospective customers, partnership agreements and other business agreements, buy/sell agreements, business credit card records, corporate documents including by-laws, operating agreements, articles of incorporation, records filed with secretary of state, documents filed with SEC,  business cards, office/building leases, records showing business accounts receivable and accounts payable, business appraisals, business deeds, mortgage notes, profit sharing through employment documents, employment contracts.

Are Employment Cases Torts Under Ohio Law

Currently there is a split in Ohio Appellate Courts as to whether employment actions, such as age discrimination, ADA disability, gender, race, religious, GINA, sexual harrassment, national origin, retaliation and any other Title VII discrimination should be classified as "tort actions" in Ohio.

You may ask: What is a Tort Action?  A tort is a civil wrong committed by one person against another. There are three board cateogories of torts; intentional torts (battery, assault, false imprisonment,  intentional infliction of emotional distress, etc.); negligence; and strict liability.

Why does it matter? Well it matters if punitive damages are to be awarded in an employment discrimination suit.  In general there are two types of damages that are awarded in employment discrimination suits, compensatory damages and punitive damages.

If an employment discrimination suit is considered a tort action, then in Ohio, punitive damages have a tort cap and are limited to two (2) times compensatory damages.  If the employment suit is not a tort then there is no cap on punitive damages. Example: compensatory damages $3.5 million and punitive damages $43 million. In the example punitive damages would be 12 times compensatory damages.  In general punitive damages are usually in single digits (1-9) times compensatory damages but there is no limit if not a tort action.

Another affect on employment cases, if they are tort actions, is the tax liability the client's award would have.  If a tort then the award of damages is a personal injury to the client and as far as I know personal injury awards are not taxable to the client.  However, I am not a tax attorney and would like to have any CPA or tax attorney respond to this question.

A recent case October 2011, Luri v. Republic Services, Inc., 2011 Ohio 2389, 953 N.E.2d 859, Eighth Appellate District, Cuyahoga County decided this issue for the Eighth District.  Luri was a retaliation case.  The jury awarded $3.5 million in compensatory damages and $43 million in punitive damages for the largest retaliatory discharge verdict in Ohio history. However, the Eighth Appellate District held that the Ohio Tort Reform Act would apply to employment cases and therefore limited punitive damages to two (2) times the compensatory damages reducing the punitive damages to $7 million dollars from $43 million. (2 x $3.5 million compensatory = $7 million punitive).

I guess we will have to wait on the Supreme Court of Ohio to rule since there is a split in several of the appellate district courts.

Breaks Now Required for Nursing Mothers Under Fair Labor Standards Act

Under the new law, employers must provide reasonable unpaid breaks for lactating employees to express breast milk.  Employers must furnish a private location, other than a bathroom, for the breaks.  The employer must provide lactation breaks for up to one year after the child's birth.  The new law does not specify how many breaks must be provided each day or the length of the lactating breaks.

The Patient Protection and Affordable Care Act includes the new amendment to the Fair Labor Standards Act regarding breaks for nursing mothers.  Employers with less than 50 employees may be exempt from providing breaks if the breaks would cause an "undue hardship" by causing the employer significant difficulty or expense.  Employers with 50 or more employees are required to follow the statute's requirements.

Ohio Name Change of Minor Child

Ohio Name Change Procedures For Minors

The Ohio Revised Code sets forth the filing and notice requirements that apply to name change petitions filed on behalf of minors. The application may be filed on by the child’s parent, legal guardian, or guardian ad litem. If one of the parents does not consent, he or she must be notified of the hearing by several methods.

To change the name of a minor by a minor's parents, a legal guardian, or a guardian ad litem an application is filed with the court.  Notice and proof is required and the consent of both living, legal parents of the minor shall be filed, or notice of hearing given to parent or parents not consenting.  If there is no known father of the minor, the notice shall be given to the person who the mother of the minor alleges to be the father. If no father is so alleged, or if either parent or the address of either parent is unknown, notice pursuant to Ohio Revised Code shall be sufficient as to the father or parent.

Ohio courts are required to decide whether the proposed name change would be in the child's best interest. The court uses several factors in determining name change applications for minor children and their best interest such as but not limited to:

1. The effect of the change on the preservation and development of the child's relationship with each parent;

2. The preference of the child if the child is of sufficient maturity to express a meaningful preference;

3. The embarrassment, discomfort, or inconvenience that may result when a child bears a surname different from the residential parent's;

4. Parental failure to maintain contact with and support of the child; and any other factor relevant to the child's best interest.

There is a residency requirement, you must reside in the county where the petition is filed for at least one year prior to filing.

Publication is required.  The Ohio Revised Code sets forth the publication requirements.  There must be publication in a newspaper of general circulation in the county of residence.

A reasonable and proper cause must be set forth for changing the minor's name.

The Court of Appeals of Ohio upheld a trial court’s decision to grant a name change application filed on behalf of two minor children, despite the natural father’s objections. Among other factors, the Court noted that the natural father was incarcerated and that he would continued to be incarcerated for a lengthy period of time. The Court determined that the proposed name change was in the children’s best interests to avoid embarrassment that arose from having a different surname from the residential parent.

Family and Medical Leave Act (FMLA)

Ohio does not have a state law in regards to Family and Medical Leave.  All claims in Ohio are based on the Department of Labor's Family and Medical Leave Act ("FMLA").

What employers are required to abide by the FMLA?  Those employers with 50 or more employees within 75 miles of the company's work site are required to provide FMLA leave to their employees, this is commonly called the "50/75 rule".  In Ohio, if an employer has 49 or less employees they are not required to follow the FMLA.  However, an employer with less than 50 employees could subject themselves to the FMLA regulations by promising such leave in their employee handbook (Reaux v. Infohealth Management Corp., Illinois District Court).  The law covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the "50 employee" test. Title II of FMLA covers most federal employees, who are subject to regulations issued by the Office of Personnel Management.

Be aware of another situation: a person works for a staffing agency that has 50 or more employees (covered under FMLA) but the company that the staffing employee is working for does not have to abide by the FMLA because they do not have 50 or more employees.  According to DOL and Grace v. USCAR, the primary employer (staffing agency) has the responisbility of offering and granting leave, and informing employees about their rights.  But the "secondary employer" (the company) is responsible for putting an eligible employee back into his or her previous assignment.

What employees are eligible?  Employees who have worked for at least 12 months and at least 1250 hours during the previous 12 months.

What does the FMLA provide to eligible employees?  Up to 12 weeks of unpaid leave in a 12 month period for the serious health condition of the employee or a family member, for the birth or adoption of a child, or because a child, parent or spouse of the employee has been called to active duty in the military.  Up to 26 weeks of unpaid leave during a 12 month period to care for a spouse, child or parent who is an injured member of the military.

What is a serious health condition?  The concept of serious health condition is key to several types of leave under the FMLA. An eligible employee is entitled to FMLA leave when the employee is unable to perform the functions of the job because of the employee's own serious health condition or when the employee is needed to care for a spouse, son, daughter or parent with a serious health condition.  In short, a "serious health condition" entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves either (1) inpatient care or (2) continuing treatment by a health care provider.  Continuing treatment has numerous scenarios which include the following:
1. Incapacity and treatment
2. Pregnancy or prenatal care: any period of incapacity due to
3. Chronic conditions: 2 visits a yr. for treatment or continues over an extended period of time; and may cause episodic rather than a continuing period of incapacity (asthma, diabetes, epilepsy, etc.)
4. Permanent or long term conditions (Alzheimer’s, severe stroke, terminal states of a disease).
5. Multiple treatments: period of absence to receive multiple treatments or a condition resulting in period of incapacity of more than three consecutive, full calendar days (cancer: chemotherapy, radiation, etc), severe arthritis (physical therapy), or kidney disease (dialysis).
6. Substance Abuse: only treatment of substance abuse. An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.

The following conditions ordinarily do not qualify as serious health conditions: common cold, flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc. However, if complications arise and any of these conditions meet the requirements they will be considered serious health conditions.

An employer can require or an employee can voluntarily elect to use paid leave benefits during FMLA leave.  FMLA leave can not count towards no-fault attendance policies.
 
The potential penalites for employers violating the FMLA is back pay, reinstatement, benefits, and attorneys' fees.

Hostile Work Environment

A hostile work environment is a workplace that the harassment is so frequent or severe and pervasive insult, intimidation and/or ridicule based on a person’s race, national origin, disability, religion, age or sex such that a reasonable person would find it hostile or abusive or when it results in an adverse employment decision (such as the victim being fired or demoted).  For example, co-workers who make unwanted sexual advances or comments or treating a person like a sexual object.

Sexual harassment is any unwanted attention of a sexual nature (verbal or physical) that creates discomfort and/or interferes with the job.  Sexual harassment can occur in several ways including unwelcomed sexual advances, requests for sexual favors, verbal abuse (e.g., suggestive comments or demands), or physical conduct of a sexual nature (e.g., touching, pinching, and patting).

Sexual harassment in the workplace is illegal under both state and federal law and can present itself in various ways.  Under Federal law employers with 15 or more employees are covered by the primary anti-harassment law.  Under Ohio State law employers with 4 or more employees are covered.

Quid Pro Quo harassment, occurs when employment terms, conditions or benefits are conditioned on the victim’s submission to unwelcome sexual advances made by his or her supervisor. For example, a supervisor stating or implying to an employee that his/her job depends on meeting sexual demands.  A victim who eventually succumbs to the advances still may have a claim.  The person creating the harassment must be a person with managerial authority.  The employer is strictly liable for any proven harassment.

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Victims of sexual harassment often encounter harassing behavior from fellow employees, supervisors, co-workers, clients or customers. The majority of sexual harassment victims are women; however, the victim and harasser do not have to be members of the opposite sex. Victims can face harassment from employees, supervisors, coworkers, clients or customers of the same or opposite sex.  The environment can be caused by vulgar comments, stories or jokes, offensive documents or postings, leering, or inappropriate physical conduct.

Ohio law prohibits retaliatory action against any person filing a sexual harassment complaint.

If you believe you are being sexually harassed or you are working in a hostile work environment file a written complaint with your HR dept.  If the business is small and your boss is doing the harassing and there is no HR dept. file a written complaint with the Ohio Civil Rights Commission.  You have 180 days to file a charge with Ohio Civil Rights Commission or the U.S. Equal Employment Opportunity Commission (EEOC).

Employment Retaliation

Retaliation:  According to the Equal Employment Opportunity Commission (EEOC), an employer (15 or more employees) may not fire, demote, harass or otherwise "retaliate" against people (applicants or employees) because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit)  The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

The Americans with Disabilities Act (ADA) (20 or more employees) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else's exercise of rights granted by the ADA.

Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity.

An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Such as: termination, refusal to hire, and denial of promotion, other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.

Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, "snubbing" a colleague, or negative comments that are justified by an employee's poor work performance or history.  Employees are not excused from continuing to perform their jobs or follow their company's legitimate workplace rules just because they have filed a complaint with the EEOC or opposed discrimination. A protected activity can include requesting a reasonable accommodation based on religion or disability.

The Fair Labor Standard Act (FSLA) provides that it shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee. 

To establish a cause of action for retaliation a plaintiff must prove the following elements: he or she engaged in a protected activity; his or her exercise of this right was known by the employer; thereafter, the employer took an employment action adverse to her; and there was a connection between the protected activity and the adverse employment action.

1.  Anyone who participates in bringing a claim of unlawful discriminatory practice is engaging in a protected activity.

2.  To establish a causal connection, a plaintiff must produce evidence from which a reasonable finder of fact could infer that the employer would not have taken the adverse action had the plaintiff not engaged in the protected activity. A plaintiff may satisfy this burden by offering evidence of the employer's knowledge that the plaintiff engaged in protected activity coupled with closeness in time between that knowledge and the adverse action.

Pregnancy Discrimination Law

The Pregnancy Discrimination Act "PDA" prohibits discrimination against employees and applicants on the basis of “pregnancy, childbirth and related medical conditions.” Any employer that’s subject to Title VII of the Civil Rights Act of 1964 must comply with the PDA. Under the law, an employer can not deny a woman a job or a promotion merely because she’s pregnant or has had an abortion. Nor can you fire her because of her condition or force her to go on leave as long as she’s physically capable of performing her job.

The law requires employers to treat pregnant employees the same as other employees on the basis of their ability or inability to work. Employers must provide the same accommodations for an expectant worker that they do for any employees unable to perform their regular duties. If an employer provides other work for an employee who can’t lift heavy boxes because of a bad back, you must make similar arrangements for a pregnant employee. A normal pregnancy is not considered a disability under the ADA. But if a woman experiences pregnancy complications that substantially limit a major life activity, she may be considered disabled under the ADA and, therefore, entitled to reasonable accommodation to perform her job.

Employers with 15 or more employees are required to follow the Federal PDA.  Ohio Revised Code makes it unlawful for employers to discriminate on the basis of pregnancy.  Termination of an employee who is temporarily disabled due to pregnancy or a related medical condition that is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.”

The Ohio Administrative Code indicates, “Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer’s leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. If the employer
has no leave policy, childbearing must be considered by the employer to be a justification for leave of absence for a female employee for a reasonable period of time. Following childbirth, and upon signifying her intent to return within a reasonable time, such female employee shall be reinstated to her original position or to a position of like status and pay, without loss of service credits.

An Ohio Appellate Court has held that an employer’s application of a minimum length of service requirement to qualify for maternity leave is unlawful.  Female employees are entitled to reasonable leave for pregnancy or a related medical condition, regardless of length of service. Enforcement of a length-of service policy to deny pregnancy-related requests for leave exposes employers to liability for pregnancy discrimination, even if the employer applies its policy in the same way to other types of leave requests.

Employers may not apply light-duty programs haphazardly, allowing some employees to take light-duty jobs, but not others. If they do, it could be a cause of action for pregnancy discrimination. Employers are required to provide sick leave and disability benefits on the same basis or conditions that apply to other employees who are granted leave for a temporary disability. Women who take maternity leave must be reinstated under the same conditions as employees returning from disability leave according to the PDA.

Employers are allowed to apply to pregnant employees the same requirements they impose on other employees such as requiring an employee to obtain a doctor’s note before allowing them to take sick leave and collect benefits.  An employer can not exclude single women from maternity benefits, they must provide the same coverage for pregnancy-related conditions as they do for illnesses and disabilities.  An employer can require a pregnant employee to use her vacation benefits before she can collect sick leave or disability pay as long as employers require other employees for absences for other types of disabiolities or illnesses. 

Insurance coverage: insurance clauses excluding pre-existing conditions can include pregnancy if same restrictions apply to other conditions.  An employer can not force an employee to purchase a family policy to be covered when she becomes pregnant, but employers can permit an employee to switch to a family plan after the birth of the child so the baby can be covered.

Family Medical Leave Act (FMLA): Any organization with 50 or more employees working within a 75-mile radius of the work site must comply with the FMLA.  Employees can also use their allowable FMLA leave if they suffer complications during pregnancy or prenatal care that constitute a “serious health condition.” (The FMLA defines a “serious health condition” as “an illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider.”) 

Eligible employees can take up to 12 weeks of unpaid, job-protected FMLA leave for the birth, adoption or foster care of a child; caring for a child, spouse or parent with a serious health condition; or convalescence after an employee’s own serious health condition. To qualify for FMLA leave, an employee must have worked for the same employer for at least 12 months (not necessarily continuously) and clocked at least 1,250 hours of service (slightly more than 24 hours per week) during the 12 months leading up to FMLA leave.

New parents (both mothers and fathers) can take FMLA leave any time in the first 12 months after a child’s arrival. But employees must conclude their leave before the 12-month period ends. Presumably, the idea is that if a working mother takes her 12 weeks and then returns to work, the father can care for the child for the next 12 weeks. If both parents work for the same company then their combined leave is only 12 weeks.

Pregnant employees can not be forced to take leave or remain on leave as long as they are able to perform their jobs.  Employers must hold a job open for a pregnant employee for the same length of time it would hold open a job for employees on sick or disability leave.  Employers can not have a rule that prohibits an employee from returning to work for a pre-determined period after childbirth.  The PDA does not prohibit employment practices that favor pregnant women.  The ADA does not cover normal pregnancy however, if the employee experiences substantial complications that limit a major life activity she is then considered disable and entitled to an accommodation.

Revocable "Living Trust"

A trust holds legal title to property. You as the “Settlor” hold legal title to the property in the trust. The settlor keeps all the benefits of the property placed into the trust. The terms of the revocable trust are established in a written agreement signed by the settlor and the trustee, and spell out what happens to the trust property during both the settlor’s life and following his or her death. Frequently, the settlor serves as his or her own trustee during the settlor’s lifetime. A "living trust" is a trust you create while you are alive it varies from a trust that is created at death under your will.

The main advantage to a living trust is property left through the trust does not have to be submitted to the probate court process and it is a private matter. Control of your assets in another reason. The living trust will speed the process of transferring all your assets and reduce the probability of litigation among your heirs. The probate process is the court-supervised process of paying your debts and distributing your property and is a public record available to everyone. The average probate drags on for months before the inheritors get anything. When you have a trust and die, your successor trustee (the person you appointed before your death) simply transfers ownership of property to the beneficiaries you named in the trust. To make the trust effective, you must fund your trust. To fund the trust all property to be distributed under its terms must be transferred into the name of the trust using a deed or other transfer documents.

If you answer “yes” to any of the following questions, you may want to consider a revocable living trust:

1. Do you want to avoid probate, its expense, and keep your estate a private matter.
2. Do you have childred or beneficiaries under the age of 25?
3. Do you have children with special needs that will never be able to financially support themselves?
4. Are you on bad terms with any of your heirs?
5. Are any family members physically ill?
6. Are you in a second or third marriage?
7. Do you have a financial interest in a business?
8. Is any family member bad at managing money?
9. Do you own real estate of any value in more than one state?

Does everyone need a living trust, NO. Living trusts do have a downside. Compared to wills, living trusts are more time consuming to establish, more expensive to create, involve more ongoing maintenance and are more trouble to modify. There are longer statute of limitations for a challenge to a trust.  A challenge to a will must be made within three months of its probate as compared to two years for a trust.

Auto Accident - Personal Injury

According the National Highway Traffic Safety Administration (NHTSA) 2008 national statistics, injuries in traffic crashes:

5,777,000 non-fatal crashes

2,072,000 persons injured

96,000 motorcyclists injured

69,000 pedestrians injured

52,000 bicyclists injured

If you have been involved in a traffic accident, after you are safe and secure, and capable:

1. Write down as much as you can about the accident and injury. Who, What, When, Where, Why, How, Witnesses, all losses your aware of (wages, etc.). Get as many names of people that was involved or know about your accident & injuries.

2. Make notes of conversations that you have with people involved in the accident or the injury (police, ambulance personnel, tow truck driver, nurse, doctor, social worker, hospital or nursing home personnel, etc.) Try to write the day, time, name of person and what you talked about.

3. Save and keep all evidence. Take pictures of the accident and/or your injuries (try to use a good camera (best and most reliable) but cell phone pictures will be ok if that is all you have. Collect any physical evidence (paperwork, etc.) Think CSI, what will help me prove this person injured me and cause my damages.

4. Locate people who witnessed the accident or the nurse, doctor, dentist, chiropractor, nursing home personnel that caused the injury and who might be able to help you prove your case.

5. Keep a daily diary of how you feel after the injury: amount of pain (1-10), medicine your taking and if any reactions or how medicine is making you feel, take pictures of how your injury is healing or not, take pictures of any injuries or bruises that pop up after the accident, sometimes they will not show up for a day or two. Write anything you feel is a concern or unusual.

6. Ohio has time limits in which you must file your claim. Ohio has certain time limits, called "statutes of limitations," in which you must file a personal injury lawsuit. If you miss the deadline for filing a case, your case is thrown out of court. There are different time limits for the various personal injury type cases.

Dissolution of Marriage

A dissolution of marriage is a “no-fault” legal proceeding to dissolve or terminate a marriage. The two parties file a joint petition in which the court reviews and permits the agreement to divide property, allocate debt, establish parental rights, spousal support, child support, etc., and terminate the marriage. All issuses need to be resolved or the court will not permit the dissolution and a divorce must be sought. Parties would choose dissolution over divorce in terminating their marriage because it avoids conflicts, confrontations, less expensive, quicker, and the outcome is more predictable.

One of the parties must be a resident of Ohio for at least six months immediately preceding the filing of the petition. The dissolution petition must be signed by both parties. A separation agreement must be attached to the petition. The separation agreement shall provide for a division of all property; spousal support; if there are minor children of the marriage, the allocation of parental rights and responsibilities for the care of the minor children, the designation of a residential parent and legal custodian of the minor children, child support, and parenting time rights; and, if the spouses so desire, an authorization for the court to modify the amount or terms of spousal support provided in the separation agreement. If there are minor children of the marriage, the spouses may address the allocation of the parental rights and responsibilities for the care of the minor children by including in the separation agreement a plan under which both parents will have shared rights and responsibilities for the care of the minor children. An attorney should only represent one of the parties and not both.

Body Art and Tattoo's at Work

Body art and tattoos in the workplace, OH MY! What does an employer do if a receptionist reports for work on Monday morning wearing several large earrings, multiple eyebrow piercings, pierced lips, tongue piercing, and a wildly inappropriate neck tattoo? The employer can remind the employee about the company’s dress code policy and ask the employee to cover the piercings and tatto however, the employee replys. “I cannot cover them up because it is required by my new church and against my religious beliefs”. The employer fires the receptionist. The employee sues. Does she win?

No, the employee loses this one. In general, employers can enforce reasonable job related workplace appearance rules if applied consistently. However, cultural or religious exemptions from a corporate dress code may apply for some eastern religions especially if they practice Ayurvedic medicine. Even the Church of Body Modification does not require that piercings remain in the body at all times. Employers should not ask if a facial piercing is linked to religious observance. An employer should inform the employee that the piercing is not permitted and against the company’s dress code. If the employee says the piercing is for religious observance, the manager should neither accept that reason at face value nor dismiss that reason at face value but instead consult with human resources.

According to a study published in the Journal of American Academy of Dermatology in June, half of people in their 20s have either a tattoo or a body piercing other than traditional earrings and 15 percent of those people have tattoos on their face, neck or hands.

The leading case on body art and tattoos is Cloutier v. Costco Wholesale, 311 F.Supp.2d 190 (D.Mass. 2004)

Americans with Disabilities Act ("ADA")

The Americans with Disabilities Act (“ADA”) is a federal civil rights law designed to prevent discrimination and enable individuals with disabilities to participate fully in all aspects of society. The ADA applies to a person with a physical or mental impairment that substantially limits one or more major life activities (like walkering, sitting, standing, breathing, sleeping, etc). The ADA protects a person who is regarded (or treated by an employer) as if he or she has a substantially limiting impairment.

Employers with 15 or more employees are covered and required to follow the ADA. What is prohibited by the ADA is discrimination against individuals with a disability or preceived to have an impairment, discrimination against a person based on their relationship to a disabled individual, and retaliation or harassment for exercising their ADA rights.

Employers covered by the ADA have to make sure that people with disabilities have an equal opportunity to apply for jobs and to work in jobs for which they are qualified; have an equal opportunity to be promoted once they are working; have equal access to benefits and privileges of employment that are offered to other employees, such as employer-provided health insurance or training; and are not harassed because of their disability.

Major Life Activities: people who are deaf, blind, or use wheelchairs. People who have physical conditions such as epilepsy, diabetes, HIV infection or severe forms of arthritis, hypertension, or carpal tunnel syndrome may be individuals with disabilities. People with mental impairments such as major depression, bipolar (manic-depressive) disorder, and mental retardation may also be covered. Protects a person with a record of a substantially limiting impairment such as; having a history of cancer that is now in remission. Other major life activities include breathing, seeing, hearing, sitting, standing, walking, learning, lifting, bending, reading, thinking, performing manual tasks, working, circulatory and reproductive functions, and many more. The ADA protects rehabilitated drug users, drug users currently in rehabilitation and alcoholics. The ADA does not protect current users of illegal drugs that are not in rehabilitation.

Employers must provide a reasonable accommodation to a disabled individual upon request. A reasonable accommodation can be a modification that allows the person to perform the job’s essential functions. An accommodation causing an undue hardship on the employer need not be provided.

The ADA does not allow the employer to ask questions about disability or use medical examinations until after they make someone a conditional job offer. After making a job offer, the employer may ask any disability related questions and conduct medical examinations as long as they do this for everybody in the same job category. The employer may withdraw a job offer from an applicant with a disability only if it becomes clear that he or she cannot do the essential functions of the job or would pose a direct threat to the health or safety of him or others. Reasonable accommodations must be assessed to see if the person could perform the job.

The ADA strictly limits the circumstances in which employers may ask questions about disability or require medical examinations of employees. Questions and exams are only permitted by employers where the employer has a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition.

If an employer violates the ADA then the employee is entitled to back pay, compensatory damages (actual damages), punitive damages (to deter), and attorney’s fees.

Martial Arts - Attitude in Self Defense

To change the mix once in awhile I will blog on martial arts or another interest of mine, motorcycles. Many of you are aware that I was involved in the martial arts from 1957 to 2000. My black belts are: 8th degree Chinese Kenpo, 6th degree American Kenpo, 2nd degree Gokei Shin’yo Ryu Jiu Jitsu, and 1st degree Judo.

Attitude in Self Defense

Attitude is a key element in being able to defend yourself. Have you ever seen or heard of a thin, wiry, short person that just knocked the crap out of a person much larger. If you have not I can tell you it happens all the time.  I am not talking about a trained boxer, martial artist, mma fighter, cage fighter but someone untrained, even though it still applies to trained fighters.

Why does this happen? In the majority of cases based on my personal research and 43 years in the martial arts the answer is: “ATTITUDE”.

I always taught my students only two things happen in a self-defense situation; a winner and a loser. When you make the decision to defend yourself for whatever reason, you must totally commit to be a winner. Your attitude must become totally engulfed with the goal to win because the other alternative is not acceptable.

Preliminary FBI statistics for 2009 indicate in Ohio’s largest cities you have a 1 in 104 chance of being a victim of a violent crime, murder, forceable rape, robbery or aggravated assault. One out of every 104 people will experience violence. One of the problems with the statistics is they are only the reported cases and it is voluntary for Ohio police to report the statistics to FBI. My guess is the chance of attack is much higher.

Over the years I have interviewed hundreds of individuals who were attacked. From domestic violence, bar fights, parking lot brawls, men, women, children, etc. The most often comment I have heard is; “Well, I didn’t want to hurt them.” I have never heard this from someone who won the fight or came out on top in a self-defense situation. Believe it or not, I am not a proponent of violence however, I am a proponent of self-defense. In many situations you can just walk or run away or defuse the situation.

Bottom line: two things happen in a self-defense situation (winner & loser). If your attitude is “I didn’t want to hurt them” then enjoy losing and suffering the consequences. Call me and we will sue the person for injuring you. But if you want to win, you must completely and totally commit to the attitude of winning.

Legal Aspects in Ohio:  To establish the affirmative defense of self-defense, the defendant must show:
1. He was not at fault in creating the situation which gave rise to the use of force;
2. He had a bona fide belief that he was in imminent danger of death or great bodily harm, and the only recourse was to use force;
3. He did not violate any duty to retreat or avoid the danger. State v. Cassano, 96 Ohio St. 3d 94, 107, 2002 Ohio 3751, 772 N.E.2d 81 (2002). State v. Jackson (1986), 22 Ohio St. 3d 281, 490 N.E.2d 84.

Battery - Civil Suit Against Someone That Harmed You

Battery can be considered a criminal offense and it can be considered an intentional tort in civil court. A battery as an intentional tort has the same elements as a criminal battery except that criminal intent need not be present. For a tortious battery to occur, the requisite intent is merely to touch or make contact without consent. It need not be an intention to do wrong, and the wrongdoer need not intend to cause the particular harm that occurs.

The elements to establish a case for battery are:
1. An act by a person (defendant) with
2. An intent to cause harmful or offensive contact; and
3. Harmful or offensive contact does occur to another person (plaintiff).

The victim (plaintiff) need only prove that the defendant is liable "more likely than not". A "preponderance of evidence" is all that is needed, more than 50% and the defendant is liable for your damages. In a criminal case it is “beyond a reasonable doubt”, a much higher standard to meet.

A civil battery is valid grounds for seeking relief through a civil case. The victim of battery can receive money for their damages from the person who committed the battery. A civil case is brought separately from any criminal charges that may have been brought against the offender (defendant). Regardless of the outcome of the criminal prosecution, or even if there was no prosecution, crime victims can file civil lawsuits against offenders and other responsible parties. Think about the OJ Simpson case where he was criminally not guilty of murder but a civil case was brought against him and the family won millions of dollars (collecting the money can sometimes be a problem, especially if they do not own anything or have a job).

Battery requires no minimum degree of force or force does not need to be directly applied. Two ways of causing a battery without applying any force is to poison someone or transmitting a disease. Accidents and ordinary negligence are not battery. Reasonable force used in the performance of duty by a police officer is not battery.

What kind of batteries can a victim bring through a civil case?
• Bar fight
• Road rage where damages occurred
• Sports injuries where sports players used excessive force in their tactics
• Domestic violence
• A doctor, dentist, chiropractor, psychiatrist, nurse, mental health worker, etc. who fails to obtain informed consent for non-emergency treatment or causes the unauthorized touching of the victim’s person
• Nursing home batteries can occur through sexual assault or by forcing residents to do things or restraining the person unreasonably, etc
• Sexual assault victims can recover costs of counseling, medical care, and time lost from work. Compensation also for pain and suffering, damage to family relationships, and psychological damage. The perpetrator can be compelled to testify in a civil case but not in a criminal case. The victim may pursue justice after a "not guilty" or "guilty" verdict in a criminal case.
• Childhood sexual battery: a childhood sexual battery victim can bring a civil battery case against their attacker 12 years after the age of majority (which is 18yrs. of age); ORC 2305.111 (C).

When Do I Need A Will or When To Update One

You need a will now if you own anything and you would like someone to receive your things, if you were to die today (If not the State of Ohio will be happy to distribute your possessions for you).  You must be at least 18 yrs of age to make a will in Ohio.  The old rule of thumb was 35 and up should have a will.  But today many young people have inherited money and property or have earned a substantial estate at an early age.  Your will should always be tailored to your current family and financial situation not last years situations or ten years ago.

Here are some events that should encourage you to make a will or a new one.

• You get married.
• You are unmarried but have a new partner.
• You get divorced.
• You change substantial assets, sell your home, sell a vacation home, buy new.
• You have new stepchildren.
• You adopted a child.
• You had a new baby.
• You moved from a community property state to a common law state.
• You change your mind about who should get what (redistribution of assets).

There are many times you should evaluate your estate plan.  Do it every year, at least.  When reviewing your estate plan don't forget to look at beneficiaries for life insurance, IRA's, retirement plans, joint accounts, etc.  Also check your Transfers on Death (TOD) and Paid on Death (POD) designations on bank accounts, cars, and mobile homes.

There are two ways to modify a will. 

• One is by adding a "codicil" (cod e sil).  It is a written addition to the will that revokes something or adds something to it.  Kind-of-like a P.S. Yeah I forgot to add Aunt Joan to the will she gets my Cherry Red 1969 Pontiac GTO that she dearly loved. (who wouldn't).
• The other is to destroy the current will and create a new will revoking all past wills and codicils.  Today, this is probably the easiest way to go.  Most wills are computerized and relatively easy to recreate and modify.  A codicil can cause confusion in the will and may even conflict with the will.
• Another thing to consider is a revocable living trust.

Your Medical Record Rights In Ohio

In Ohio you have the right to:
1.  See and get a copy of your medical record within 30 days of your request to the health care provider.

2.  Your health care provider may charge you for copying your record. The provider can also charge for the cost of postage and delivery.

3.  You have the right to amend your medical record to make it more accurate or complete.

4.  If your right to see, get a copy of or to amend your medical record is violated then you may file a complaint with the Office of Civil Rights, U.S. Department of Health and Human Services.  You also can file a complaint with the state agency that regulates the health care provider.

5.  You may bring a lawsuit in Ohio against your health care provider if they fail to provide you with your medical records as requested.

6.  Under Ohio law your health care provider owns the actual medical record.

7.  A parent may see, get a copy of or amend their childs medical record if the child is under 18 yrs. of age.  If a health care provider reasonably believes that a parent is abusing, or neglecting a child the provider does not have to give the parent access to the child's record.

8.  Under Ohio law, you do not have the right to get the medical records of a deceased person unless you are the administrator or executor of the person's estate.

9.  There is no rule in Ohio as to how long medical doctors or hospitals must keep your medical records.  Although some medical practitioners must keep records for a certain period of time such as: chiropractor's must keep treatment records for 5 years after a patient ends his care.

10.  Most health care providers (doctors and hospitals) must follow HIPPA Privacy Rules and state law in providing your medical records.  Most nursing homes must follow HIPPA rules along with other specific rules that apply only to nursing homes.

11.  In Ohio, an independent tort exists (meaning an individual can sue) for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship." Biddle v. Warren Gen. Hosp. (1999), 86 Ohio.St.3d 395, paragraph one of the syllabus and Garland v Seven Seventeen Credit Union, Inc., 184 Ohio App.3d 339 (2009).

Ohio General Employment Law

Ohio employment is regulated by state and federal laws. Most employees in Ohio are employed as at-will-employees unless the employee has an employment contract with the employer or protected by law.

At-will-employees serve at the will of their employers. They may be terminated at any time, for no reason, or for a lawful reason, with or without notice. In the same regards, an at-will-employee is free to quit their job at anytime for any reason or no reason, with or without notice.

Employee handbooks may or may not give you more rights in relationship to your at-will-employment. A wise employee will always check the employee handbook for additional information on severance, firing policy, hiring policy, and disciplinary policies.

Employees are generally entitled to a "reasonable expectation" of privacy. The American with Disabilities Act (ADA), the Drug-Free Workplace Act, and the Federal Employee Polygraph Protection Act are laws that affect workplace privacy.

The Fair Labor Standards Act (FLSA) establish minimum wage, overtime pay, and record keeping affecting full-time and part-time workers in the private sector and in federal, state, and local governments. The Ohio Wage and Hour Bureau of the Ohio Department of Commerce enforces Ohio minimum wage, child labor, and prevailing wage laws. Ohio Revised Code section 4115 applies specifically to construction projects.