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Goals
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Enact sensible reforms to Ohio's employment discrimination law.
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Return the law to its original intent.
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Provide consistency with federal civil rights laws.
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Reasonable caps on economic damages resulting from a discrimination lawsuit.
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Under Ohio law, compensatory and punitive damages for discrimination are not capped and could result in multi-million dollar awards.
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SHRM supports legislation to limit economic damages to the levels under the federal Civil Rights Act of 1991 (between $50,000 and $300,000, depending on number of employees).
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Identify reasonable, uniform statute of limitations for employment discrimination law
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With the exception of age discrimination lawsuits which must be brought within 180 days, Ohio's employment discrimination law has a 6-year statute of limitations (imposed by the Supreme Court).
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Under federal discrimination laws, the statute of limitations is 300 days.
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SHRM supports a 300-day limitation for claims under Ohio's employment discrimination law.
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Reverse decision of Supreme Court creating individual liability for supervisors and managers —SHRM supports legislative revision to restore the original intent of RC ORC 4112 by recognizing that companies, not employees, are in the best position to remedy discrimination through back pay, restoration of lost benefits, and reinstatement.
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No more double-dipping by piggybacking duplicative tort claims
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Ohio's Supreme Court has said filing a suit claiming violation of ORC 4112 and discharge in violation of public policy is proper unless General Assembly establishes ORC 4112 is the exclusive remedy.
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SHRM supports making clear that ORC 4112 is the sole remedy for employment discrimination claims.
Eliminate wasted time and cost defending same claim in two forums
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Individuals can currently file a complaint with the OCRC, lose on the merits, appeal to the court, lose the appeal, and still file a lawsuit.
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SHRM supports enacting a reasonable election of remedies provision to ORC 4112.
Workers' Compensation Reforms Supported By SHRM
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Return the law to its original intent.
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Improve competitiveness of Ohio's businesses.
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Build on positive changes enacted over the past decade.
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Require an injured worker to provide objective medical evidence of “substantial” aggravation of a pre-existing condition rather than a mere allegation of increased pain. Claimants can currently receive workers' compensation for “slight” aggravation of a pre-existing condition such as arthritis or back pain without objective medical evidence of “substantial” aggravation creating fraud and abuse in the system.
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Reduce the number of years an inactive workers' compensation claim can stay open. Currently, claims where the employee is off for less than one week stays open for six years and all other claims remain open for ten years. SHRM proposes legislation to close claims four years after the last payment of medical compensation. In addition, the law should allow for those claims that may need to stay open longer, such as gradually developing diseases or claims that involve prostheses.
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Eliminate a claimant's right to dismiss an employer's appeal. An employer can appeal a claim to the court, but since the employee remains the plaintiff, he or she can dismiss the claim. The effect is that the employee can delay the claim while continuing to collect compensation. SHRM supports legislation that eliminates the employee's ability to dismiss the claim when it is the employer who is appealing the workers' compensation administrative decision.
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Bring the number of weeks a claimant can collect “non-working wage loss” benefits in line with the number of weeks unemployment compensation is allowed. Under current law, claimant can collect the “non-working wage loss” benefit for up to four years. SHRM supports eliminating this benefit. At the very least, the non-working wage loss benefit should be limited to the same number of weeks as unemployment compensation.
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Clarify requirements for statutory permanent total disability (“PTD”). Under an Ohio Supreme Court decision, individuals who may be capable of working after an injury, can now qualify for PTD. SHRM supports returning to the original definition of PTD and ensuring that those who can continue to work do not qualify.
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Protect the integrity of the system from mental only claims. The Ohio Supreme Court has agreed to hear case on a mental only claim. In McCrone v. Bank One , a bank teller claimed she suffered post-traumatic stress from a robbery. The Court of Appeals upheld the decision of the Court of Common Pleas which allowed the claim for the mental injury without an accompanying physical injury. The Court of Common Pleas found the statutory exception that only allowed mental claims where the claim was linked to a physical injury (mental-mental exception) unconstitutional. Should the Supreme Court rule that mental-only claims are allowed, the decision could have a devastating effect on workers' compensation costs in Ohio.
Pre-Conference General Session: How to Avoid Hiring Disasters & Lawsuits through Effective Pre-Employment Screening Practices
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Relying on Internet advertising only—can this practice create a disparate impact? Possibly. Employers should avoid using solely the Internet to advertise jobs. For example, employers should advertise a position on the Internet, in newspapers, and in periodicals when possible.
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Use the Ohio Civil Rights Commission's guide to pre-employment inquires to structure job applications and interviews. If a discrimination complaint is filed, the OCRC will evaluate your pre-employment questions using the guide and may expressly ask if the employer used it.
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Post-offer, but pre-employment disqualifications based on medical exams or background checks must be related to the job.
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Ensure a release is obtained before performing background checks.
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Obtain a written consent and a release from liability before providing information on a former employee to a new employer—only give new employer factual information and not opinions about the former employee—put policy in the employee handbook.
A Decade Later and It's Still a Headache—Administering FMLA and Other Leave Rights
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Although the DOL has not released specific information, it has expressed that it is considering changes to FMLA—several groups proposing changes have requested the following reforms:
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Redefining what qualifies as a “serious health condition,” eliminating such conditions as migraine headaches, colds, or the flu.
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Giving employers more options to verify the need for time off, such as the freedom to contact physicians.
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Stricter guidelines for intermittent leave.
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Clarifying the definition of “incapacitated.”
Discussion on foreseeable leave:
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30 days advance notice
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Notice must be sufficient to make employer aware of qualifying reason for leave—employer has burden to further inquire.
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Internal procedure may require notice in writing—yet FMLA only requires verbal notice, and an employer may not deny or delay the leave based on failure to follow internal procedures.
Discussion on unforeseeable leave:
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Employee must give notice as soon as practical.
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Employer must have enough information to reasonably conclude the leave may qualify under the FMLA--employer then has burden to further inquire.
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Courts have been moving closer to employer's view on this issue and have denied claims where the employee:
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demanded leave, but did not make employer aware of qualifying reason.
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in a note said she had a lot of pain in her side and would not be able to work that day.
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was fired for excessive absenteeism, but never told employer his absences were related to his diabetes.
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Some limited discussion on the impact of COBRA and Workers' Compensation on FMLA
