Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

Porter Wright is pleased to present the Ohio Employer Class Action Summit, a full-day program co-sponsored by the Ohio Manufacturers Education Council that is designed for in house counsel and other executives concerned about the growing threat of class actions and how they may impact their workforce.

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It may seem odd to include a statement in an employment application or offer that limits the time that an employee has to file legal claims that may arise later in the employment relationship. Recent case law, however, suggests that it is something that all employers should consider and decide if it is appropriate for their business and their employees.

In the last three years, a line of case law has developed in Ohio and the Sixth Circuit that allows employers to limit the time period by which employees must bring claims arising from their employment. The cases all involved employers that included in their employment applications a provision stating that, by signing the application and subsequently accepting employment, the employee agreed to bring all claims arising out of the employment relationship within a certain period of time—a time period that is shorter than statutory limits. Some of the applications stated that any claims had to be filed within a period of time as short as six months.

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U.S. Citizenship and Immigration Services announced on April 18, 2008 a special "cap gap solution" for F-1 students whose Optional Practical Training (OPT) expires before October 1, 2008. An April 8, 2008 interim final rule automatically extended OPT for F-1 students, but it applied only in those cases where the employer requested a "change of status" on the H-1B petition. To be eligible for the change of status from F-1 student to H-1B temporary worker, however, the student must have had less than a 60-day gap between when the OPT expires and October 1, 2008. Therefore, when employers filed H-1B petitions on April 1, it was not possible to request a change of status for any F-1 student/employee whose OPT expired on August 1, 2008 or earlier. Therefore, there were many individuals who could have benefited from the new regulation had it been published before April 1.

Recognizing the inequity of the situation, the solution announced on April 18 allows employers whose H-1B petitions are accepted on behalf of an F-1 student to amend the petition and request a change of status. The OPT then will be extended to October 1, and the individual will be permitted to remain in the United States and continue working without interruption. This is a significant benefit for individuals who otherwise were planning to spend several months abroad after their OPT expired and before they could obtain H-1B visas and return on or after October 1, 2008. After the H-1B filing confirmation has been issued (all notices are to be issued by June 2, 2008), the employer will have 30 days to amend the petition and request the change of status.

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Many employers may feel they are currently in a state of limbo with respect to their FMLA policies and obligations. As we reported on our Blog in January, the FMLA was amended on January 28, 2008 to include “any qualifying exigency” arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty in the military or has been notified of an impending call to active duty status as an additionally qualifying reason for up to 12 weeks of leave. The amendment also created a new leave entitlement of up to 26 weeks of leave for an employee who is the spouse, son, daughter, parent or next of kin of a servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty. 

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The United States Department of Labor (DOL) recently released two new opinion letters. Both are employer-friendly.

Opinion Letter FLSA2008-1 addressed whether purchasing agents in a private sector company were properly categorized as exempt administrative employees. Based on the specific context, DOL determined that the employees were exempt from overtime requirements. As a reminder, to meet the criteria for an administrative exemption, the position must: (1) meet the salary basis test; (2) have a “primary duty” of performing office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) include the exercise of discretion and independent judgment with respect to matters of significance in performing the primary duties. 29 C.F.R. § 541.200(a).  

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In a follow up to my recent post on H-1B visa petitions, U.S. Citizenship and Immigration Services conducted the random selection process on April 14, 2008 and announced that it will issue receipt notices for selected petitions by June 2, 2008. The notice also indicated that the total processing time would be eight to 10 weeks but did not indicate whether the clock would begin from April 14 or from the date of the receipt notice. For premium processing cases ($1,000 extra filing fee for 15-day processing), the 15-day clock began on April 14.

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In a case alleging intentional tort and negligent hiring and retention, the Ohio Tenth District Court of Appeals held that the  employer was not liable when one employee attacked and assaulted a fellow employee at work. Weimerskirch v. Coakley, Case No. 07AP-952, (10th Dist. Franklin County, April 8, 2008). 

David Coakley worked as a mechanic for AMF Bowling Inc. On June 6, 2004, Gary Weimerskirch, an assistant manager at AMF, walked in on Coakley and his girlfriend just after they, apparently, had sexual relations. Unexpectedly, Coakley told Weimerskirch that he quit and  began to collect his personal effects from the work area. As Coakley took his belongings to his vehicle, which was parked behind the building, he spontaneously grabbed a two-by-four, ran toward Weimerskirch, and struck him on the head with the board. Weimerskirch filed a lawsuit against Coakley personally, and also against AMF for employer intentional tort and negligent hiring and retention. The trial court granted summary judgment for AMF, and Weimerskirch filed an appeal.

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On March 18, 2008, the Court of Appeals for the Seventh Appellate District struck down the portion of Ohio’s Tort Reform Act that created a heightened standard for employees bringing intentional tort claims against their employers. Specifically, Kaminski v. Metal & Wire Prods. Co., Case No. 07-CO-15 (7th Dist. March 18, 2008), was the first appellate decision addressing the constitutionality of this heightened standard, and it found the standard improper.

Normally, an employee who suffers a workplace injury cannot file a lawsuit but must, instead, seek compensation under Ohio’s workers’ compensation system. Proof that the employer’s conduct was intentional, however, allows the employee to go around the workers’ compensation system and file a lawsuit for damages. 

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