Attention Employers: ADA Reasonable Accommodation Requirements

The American with Disabilities Act does not require employers to give all disabled persons a job, or a job schedule, of their choosing. Rather, the ADA requires employers to reasonably accommodate their disabled employees. Employers should note the use of the word reasonably. A recent case involving the Ford Motor Company helped clarify what is required from employers.

A Ford employee sought to dictate her entire work schedule by working from home four days per week, because of her disability (irritable bowel syndrome). The Court ultimately ruled that Ford did not have to accommodate the woman’s request to work from home four days per week. To come to this conclusion, they looked at a number of factors:

• Whether physical presence at the office is an essential function of the job.
  1. Crucial to the outcome of this case was that the employee admitted she could not perform four of ten of her essential job functions while at home.

• The business model of the employer.
  1. The Court recognized Ford’s assembly line type business requires employees to be present at the office to run efficiently.

• The job performance of the employee.
  1. The Court noted that the employee’s job performance was already subpar, and she was not performing the basic functions of her position. She ranked in the bottom 10% of her peer employees.

• Job reliability.
  1. The Court stated that the employee’s attendance was already sporadic and unpredictable. On average, she missed 1.5 days per week.

• The employer’s other efforts to reasonably accommodate the employee.
  1. Here, Ford tried to help the employee in other ways. They adjusted her work schedule by giving her four 10-hour days. They tried working from home on an ad-hoc basis. They offered her other positions that would better allow her to work from home. They offered to move her office closer to the restroom.

Employers should have well designed job descriptions, engage in conversations with disabled employees, and provide reasonable accommodations where necessary.

For more information about the above case, please see Equal Employment Opportunity Commission v. Ford Motor Company at: http://www.ca6.uscourts.gov/opinions.pdf/15a0066p-06.pdf

Lardiere McNair LLC has a practice in which advises and assists both employers and employees with their employment concerns. If you have any questions about the above, please contact an attorney.

Chad Stonebrook is an Associate Attorney at Lardiere McNair LLC.  To read more about Chad, please visit http://www.lmcounsel.com/chads-bio.html.

Disclaimer

The information presented here  has been prepared by Lardiere McNair for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Lardiere McNair enters in to a written engagement agreement with a specific client for a specific legal matter.

Chasing Past Bonuses

Employers should take great care in crafting their contracts, agreements, and benefits plans with their employees, or they could wind up owing them a lot of money.

A JP Morgan Chase Bank, N.A. employee recently sued the company to recover an unpaid bonus. The employee received a base salary of $200,000. In addition, in his thirteen years of employment, he also received bonuses ranging from $45,000 to $210,500. Chase has a bonus program in which if certain criteria are met, the bonus increases in value. The employee was terminated from Chase on January 13, 2012. The bonuses for 2011 were not approved until January 17, 2012 and were paid on January 24, 2012. Therefore, Chase refused to pay the employee his bonus for the 2011 calendar year. Based on the bonus program criteria, the employee was due $247,500.

The bonus program is maintained internally by Chase. It is not signed by anyone at Chase, nor is it countersigned by any Chase employees. Further, the program is completely discretionary and subject to the determination of the Board of Directors. Whether or not individuals satisfy the criteria, is at the sole discretion of Chase. This particular employee testified that he never even saw a copy of the handbook.

Ohio’s Tenth Appellate District recently held that this bonus program was effectively an illusory contract. They have determined that there are genuine issues of material fact, and the employee’s claim has survived summary judgment. We’ll see whether Court ultimately awards the bonus to the employee.

Ohio employers need to be aware of the importance of contracts. In this case, the bonus plan was not signed by anyone, was in the total discretion of the employer, and employees hadn’t even seen the policy. Yet, it’s possible the employee may still be able to recover the benefit. Employers should consider this when drafting employment contracts and benefits packages.

Lardiere McNair LLC has a practice which advises and assists both employers and employees with their employment concerns. If you have any questions about the above, please contact an attorney.

For more information about the above case, please see the following case: Pohmer v. JPMorgan Chase Bank, N.A. 2015-Ohio-1229.

Chad Stonebrook is an Associate Attorney at Lardiere McNair LLC.  To read more about Chad, please visit http://www.lmcounsel.com/chads-bio.html.

Disclaimer

The information presented here  has been prepared by Lardiere McNair for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Lardiere McNair enters in to a written engagement agreement with a specific client for a specific legal matter.

Need a Lyft? Employment Laws affecting New Age Travel Companies

Peer-to-peer transportation services have changed the landscape for traditional taxi drivers, and now employment laws are going to affect the future of the industry. Uber is available in 53 countries and more than 200 cities worldwide, including the City of Columbus, and was founded in 2009. A rival company, Lyft, was founded in 2012 and was also previously available in Columbus.   In January of 2015, Lyft left the Columbus market because of the Columbus City Council making changes to the Business Regulation and Licensing Code. But now, legal questions regarding peer-to-peer transportation and potential changes to the industry are going to the national stage.

Peer-to-peer transportation relies on the classification of drivers as “independent contractors” rather than “employees”. If the drivers can remain independent contractors, Uber and Lyft need not pay them a salary, benefits, provide insurance, gasoline reimbursements, Social Security, unemployment insurance, and workers’ compensation. However, if drivers are found to be employees, then the companies may have to provide some, or all, or the above. On one hand, the classification as an employee could be good for the drivers, as they are likely to make more overall money. On the other, the industry thrives on their low transportation fares, and this change would likely increase the rates for consumers. This classification will have far reaching implications for the peer-to-peer transportation industry.

Uber and Lyft are both currently involved in class action lawsuits to determine whether their drivers are independent contractors or employees. On Wednesday March 11, United States District Judges Vince Chhabria and Edward Chen ruled that juries must decide how Uber and Lyft will be classified. Our firm will be closely watching the outcome of these cases to see if there are changes or clarifications in employment law for classifications of independent contractors and employees.

This status of workers is important to consider for all business. Lardiere McNair LLC has a practice in which advises and assists both employers and employees with their employment concerns. If you have any questions about the above, or independent contractor/employee status, please contact an attorney.

Chad Stonebrook is an Associate Attorney at Lardiere McNair LLC.  To read more about Chad, please visit http://www.lmcounsel.com/chads-bio.html.

Disclaimer

The information presented here  has been prepared by Lardiere McNair for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Lardiere McNair enters in to a written engagement agreement with a specific client for a specific legal matter.

Tax Assessment

If you own commercial or residential real estate, the deadline to file an appeal to contest your County’s determination of the 2015 assessed value of the property is Tuesday March 31, 2015.  It is important to ensure that the assessment amount regarding their property is accurate. Factors to consider include the size of property, the use of the property, similar properties, the age of the property, and the types of structures on the property.   If you believe that your property has been assessed incorrectly, with only a few weeks left, now is the time to file an appeal.

Lardiere McNair LLC has experience with assisting clients in filing tax assessment appeals.  If you need assistance in filing your appeal, please contact our firm.

Buying a Business? Check Previous Workers’ Compensation Claims

Buying a business can require a lot of due diligence and proper documentation. There are the obvious evaluations, like infrastructure, finances, and employees. However, one cost that many buyers do not consider when buying a business, is their premium for workers’ compensation claims. Buyers beware, those rates can be determined in a way that may not show up on a balance sheet.

A recent Ohio Supreme Court decision regarding an asset purchase agreement, State ex rel. RFFG, L.L.C. v. Ohio Bureau of Workers’ Comp., stated that Bureau of Workers’ Compensation is authorized to calculate the new buyer’s workers compensation premium rate based on the predecessor’s experience within the most recent experience period. In other words, if the business you are buying had a number of employees make workers’ compensation claims; your premium is likely to be based off of those numbers.

The Court stated for workers’ compensation purposes, the term “successor in interest” means “simply a transferee of a business in whole or in part.”

Fair or unfair, this can lead to unexpected and astronomical fees for workers’ compensation premiums. Businesses already tend to have low profit margins in the beginning; unexpected fees are not welcome.

Proper documentation that would support a conclusion that the purchaser was only a partial successor to the seller was not provided by the purchaser, and thus the Supreme Court refused to set aside the decision of the industrial commission.

The Bureau of Workers’ Compensation has been authorized to set the premiums based on the predecessor’s experience. Additionally, Courts will defer to the Bureau’s decision in all but the most extraordinary circumstances and intervene only when the agency has acted in an arbitrary, capricious, or discriminatory manner. Thus, not only does the Bureau get to set the fees based on the previous owner, there is very little a buyer can do about it once the fees are set.

Keep in mind that the Bureau of Workers’ Compensation does have a duty to briefly explain the reasoning for their decision and inform the parties of their decision. If a buyer does not receive notice, then that may be an avenue of appeal.

Therefore, buyers of businesses should proceed with caution, and add the above to their list of due diligence. Contact an attorney if you have any questions regarding buying a business or premiums for workers’ compensation.

For more information, see the Ohio Supreme Court case in its entirety:

State ex rel. RFFG, L.L.C. v. Ohio Bureau of Workers’ Comp, 2014-Ohio-5199, P1, 2014 Ohio LEXIS 3028, 1, 141 Ohio St. 3d 331, 23 N.E.3d 1172 (Ohio 2014)

THE AFFORDABLE CARE ACT – Could Your Business Face Penalties in 2016?

Who has to comply with the Affordable Care Act (“ACA”)?

Businesses with 50-99 full time and Full-Time Equivalent (“FTE”) employees and Businesses with 100 or more full time and FTE employees.

What is a FTE employee?

A full-time equivalent employee only determines whether or not the ACA applies to you. For purposes of determining whether you have 50 or more employees, you have to consider both your full time employees (those who work 30 or more hours a week) and your part time employees (29 hours or less, who combined, make up a FTE employee). For example, if you have 40 full time employees, and 20 part-time employees who work an average of 24 hours a week (17.3 FTE employees)[1], you actually have a total of 58 employees, which means that the ACA would apply to you.

What happens if I don’t comply with the ACA?

There are two types of penalties. A more severe penalty is applied where an employer offers no coverage at all. A more moderate penalty applies if the employer offers minimum essential coverage under an employer sponsored plan. The first penalty applies if you don’t provide insurance at all, and one of your full time employees receives federal insurance subsidies in the individual exchange. In this case you will pay a penalty of approximately $2,000 per full time equivalent employee for the year (minus the first 30 employees). For example, if you have 50 full time employees, (minus the first 30 would be 20), you would be paying approximately $40,000 in penalties for the year. (If you provide coverage for some months but not others, the calculation is by the month and a little different.)

If you fail to offer coverage that meets the requirements for affordable and comprehensive coverage, the fine is $3,000 per the number of employees who receives federal insurance subsidies in the individual exchange. (Or $2,000 per full time equivalent employee whichever is less.) So again, if you have 50 employees and 3 of them get coverage on the exchange instead of using the coverage offered by you, the fine would be $9,000 (3 times $3,000).

I know the ACA applies to me, now what?

Once you have determined if the ACA applies to you, you must provide health insurance to all full time employees only (i.e. those who work 30 or more hours a week). In 2015 an employer with 100 or more employees must offer 70% of their full time employees health insurance that complies with the ACA regulations or they will pay a penalty. In 2016 both employers with 50-99 and employers with 100 or more employees must offer 95% of their full-time employees health insurance that complies with ACA regulations or they will pay a penalty. The coverage has to be both affordable and comprehensive.

What is affordable coverage?

Affordable coverage is if the “employee’s contribution for individual coverage does not exceed 9.5% of the employee’s income (or between 100%-400% of the federal poverty level).”[2]

What is comprehensive coverage?

“The plan’s share of the health insurance costs must be at least 60% of the costs of covered services.”[3]

There are additional requirements under the ACA, such as reporting, that the Act requires. It is important to ensure you properly determine whether the Act applies to you, and everything that is expected of you under the Act. For more information, or for assistance in determining whether the ACA applies to you, contact us at (614) 534-1355.[4]

[1] 24 hrs x 52 weeks/12 months= 104 hr/mo/employee. 104 x 20 ees= 2, 080 total hrs/mo for 20 ees. 2,080/120(max hr/mo part-time employees)= 17.3.

[2] The Employer Mandate-What does it Mean for your Company?, Info.sequent.biz/ACAheadache

[3] Id.

[4] Sources: http://www.hhs.gov/healthcare/rights/; The Employer Mandate-What does it Mean for your Company?, Info.sequent.biz/ACAheadache; http://www.forbes.com/sites/theapothecary/2013/05/21/employers-can-minimize-their-exposure-to-obamacares-health-insurance-mandate-by-offering-low-cost-skinny-coverage/; http://healthcoverageguide.org/affordable-care-act/shared-responsibility-requirements/#Are+small+employers+that+don%E2%80%99t+offer+health+insurance+required+to+pay+a+penalty%3F

Increase in Ohio Minimum Wages

Effective January 1, 2015, Ohio has raised minimum wage requirements. Now, Ohio employers grossing at least $297,000.00 per year must pay minimum wages to non-tipped employees of $8.10 per hour and tipped employees $4.05 per hour plus tips. (Tipped employees are those who “engage in an occupation in which he/she customarily and regularly receives more than $30.00 per month in tips”[1]).

Smaller businesses grossing under $297,000 per year, and those with employees under the age of 16 are required to pay the lower federal minimum wage of $7.25 per hour.

All employers subject to Ohio’s minimum wage must prominently display a current 2015 minimum wage notice. The free poster can be downloaded at: http://www.com.ohio.gov/documents/dico_2015MinimumWageposter.pdf

For any questions relating to this new law, or for any of your other employment law questions, contact us today.

[1] 2015 State of Ohio Minimum Wage Poster, www.com.ohio.gov, accessed January 5, 2015.

Laws to Consider Before Blogging

It seems like everyone has a blog nowadays. Here you are, reading our blog! Blogs are great for companies to generate content and share information and while more and more people and companies are blogging, lawsuits are a potential risk.

“Freedom of the press is a right that individuals have, not just newspapers and television.” New York Times Co. v. United States, 403 U.S. 713 (1971). However, always keep in mind that even protected speech has limits, and bloggers need to be mindful of their audience, plagiarism and very controversial topics.

Some areas of the law to consider when blogging would be invasion of someone’s privacy, defamation, and copyright infringement.

Under Ohio Law, an invasion of privacy is defined as an exploitation of someone’s personality, which would include the appropriation of their name or likeness; publishing someone’s private affairs when the public has no legitimate concern; a wrongful intrusion into someone’s private life which causes outrage, mental suffering, humiliation or shame. Truth is no defense to an invasion of privacy action. (See Ohio Jurisprudence, 2d Privacy § 9.)

Defamation in Ohio is defined as a “false publication that injures a person’s reputation or exposes that person to public hatred, contempt, ridicule, or shame, or affects him adversely in his trade or business.” Dale v. Ohio Civil Service Employees Ass’n., 57 Ohio St.3d 112, 117 (1991).

Copyright infringement happens when the blogger uses someone’s work, like words or photographs, without that person’s permission. Federal Copyright laws preempt Ohio laws.

By all means, go ahead and blog, but please just think twice before hitting send.

Treating Pregnant Women Appropriately in the Workplace

The pregnant woman is one category of employee that employers often are unsure how to treat.  And pregnant women are also often curious about their rights.  The simple answer to these questions is: The Equal Employment Opportunity Commission wants employers to treat pregnant employees as they would treat any other employee.

This, of course, has limitations.  If the employee is healthy, then the pregnant employee should be no different than any other employee.  However, with pregnancy can often come complications.  Some women are unable to perform their duties the same as they would have while not pregnant.  Therefore, the EEOC states that employers should provide accommodations in the workplace that assist the pregnant employee.  This standard is still consistent with treating pregnant women the same as other employees.  Imagine you had an employee who was injured on the job.  The accommodations you would make for that employee should be similar to the pregnant employee.

Further, as a general rule of thumb, pregnant employees should never be discriminated against in the workplace.  This extends to hiring, firing, promoting, compensation, duties, benefits, and more.  Additionally, it extends to current pregnancy, past pregnancy, or potential future pregnancy.  Therefore, as an example, an employer choosing not to hire a young female employee with family aspirations, simply because she may become pregnant, would be discrimination under this standard.

Our country (and state) provides standards to employers for all types of employees.  They can range disabled workers, minority workers, and injured works.  Additionally, there are standards for time off, vacation, benefits, and more that vary based on the size of your business.  If you have any doubts about what your rights are as an employee, or as an employer, we encourage you to speak to an attorney.

For more information, please contact an attorney.

How marriage AND divorce affects your business: Some important factors to consider

If you have an ownership interest in a business, it may be wise to obtain a pre-nuptial agreement before getting married to protect your interest in that business and keep it a separate property, not part of the marriage.

However, if you neglect to protect that business OR you acquire interest in a business after you are married, any interest that has appreciated after the marriage or anything acquired during the marriage is considered “Marital Property.”

In a divorce in Ohio, the courts typically divide anything considered “martial property” according to an equitable distribution analysis.

Additionally, if you and your spouse are both actively involved in running the business, but the marriage fails, the court encourages the parties to separate all of their interests, including the business interests. The debts and the equity related to the business will be factored into the net value of the business to be divided by the equitable distribution analysis.