The Ohio Department of Commerce recently released new prevailing wage guidelines.  These guidelines, which became effective on October 15, 2008 and are available at http://com.ohio.gov/laws/,  focus on construction projects supported by both public and private funds.  Essentially, whenever a public entity contributes funding or other direct support (such as public land) to a project, even an otherwise privately-financed project, prevailing wage must be paid to the workers on that project.  The guidelines also state that, for the most part, projects may not be subdivided into a publicly-supported project and a privately-financed project in order to avoid prevailing wage on certain “phases” of a project. 

 While the guidelines are intended to clarify the existing law, rather than create new standards, some of the examples listed in the guidelines have resulted in much controversy, particularly in the areas of asbestos removal/brownfield remediation.  Nevertheless, the guidelines are considered to be currently in effect and Ohio employers should approach prevailing wage issues conservatively.  Please contact your attorney if you have any questions on prevailing wage or whether a construction project is covered by the state law. 

Effective January 1, 2009, Ohio’s minimum wage will increase to $7.30/hour generally and $3.65/hour for tipped employees (plus tips). 

The state minimum wage will briefly change to $6.55/hour for employers grossing $267,000 or less per year and employees who are 14 or 15 years of age. On July 24, 2009, pursuant to an increase in the federal minimum wage, the Ohio minimum wage increases to $7.25 per hour those employees whose employers gross $267,000 or less and 14 & 15 year olds.

Beginning November 1, 2008, employers covered by the United States Department of Transportation’s controlled-substance testing regulations must conduct direct observation collection for “return to duty” and “follow-up” controlled substance tests. These regulations apply to employers governed by the Federal Highway Administration (such as private motor carriers), the Federal Railroad Administration (which regulates railroad operators), the Federal Aviation Administration (which regulates airlines and related industries), the Federal Transit Authority (which regulates companies doing business with mass transit providers), and the Research and Special Programs Administration (which regulates pipeline industries).

Continue Reading Employers Subject to the U.S. Department of Transportation’s Substance Abuse Testing Requirements Must Now Conduct Direct Observation for Return to Duty and Follow-up Testing

Many employers have been pulling their hair out attempting to address runaway intermittent leave under the FMLA. The Sixth Circuit’s decision in Davis v. Michigan Bell authorizes one creative solution – change your 12-month FMLA period to a calendar-year basis.

On September 24, 2004, – the first day she became eligible for FMLA leave after having worked for her employer since 1997 – Candice Davis was granted FMLA intermittent leave for chronic depression certified by her health care provider. Between September 24 and December 13, 2004, she took several discrete absences from work due to her depression and each absence was approved for FMLA. Beginning on December 13th, she began a more extended leave due to her depression but, despite her employer’s efforts, did not return her FMLA medical certification form for this period. Her employer did, however, initiate a short-term disability leave for her in accordance with the company’s benefits package. On January 7, 2005, Ms. Davis’s therapist informed her employer that she was no longer disabled and could have returned to work as early as January 3rd. As a result, Ms. Davis’s employer informed her that every absence after January 2nd would be considered an unexcused absence unless she sought and received FMLA leave to cover those days off. It also told her that she would be considered to have resigned if she did not report to work on January 14th. When January 14th passed without a return to work, she was suspended pending her dismissal.

Continue Reading Recent Sixth Circuit Decision Authorizes Creative Solution to Address Runaway Intermittent Leave

On October 16, 2008, the Department of Homeland Security adopted the May 9, 2008 proposed regulation without change. Therefore, effective October 16, 2008, qualifying individuals now may obtain initial periods of TN status or extensions of status for up to three years. As noted in the prior post announcing the proposed regulation, this new development certainly is good news for TN employers and employees alike.

The Emergency Economic Stabilization Act of 2008 (“EESA” or the “bailout law”), which was enacted on October 3, 2008, contains significant amendments to the Mental Health Parity Act of 1996 (“MHPA”) that are pertinent to group health plans. For most plans, these changes will be effective January 1, 2010.

Under the provisions of MHPA prior to this amendment, the annual or lifetime dollar limits on mental health benefits could be no lower than the dollar limits for medical and surgical benefits offered by a group health plan or health insurance issuer offering coverage in connection with a group health plan. The original sunset provision of the MHPA has been extended numerous times, with the current extension running through December 31, 2008. The MHPA, which does not apply to benefits for substance abuse or chemical dependency, provides that employers retain discretion regarding the extent and scope of mental health benefits offered. This includes cost sharing, requirements relating to medical necessity, and limits on numbers of visits or days of coverage. MHPA does not apply to small employers (less than 51 employees), and does not apply to a group health plan or group health insurance coverage if the application of the parity provisions would result in an increase in the cost under the plan or coverage of at least one percent. 

Continue Reading Mental Health Parity Provisions of the Bailout Law

President Bush signed the ADA Amendments Act (S. 3406) into law Thursday, September 25. The new provisions, intended to clarify and strengthen protections Congress intended to guarantee in the original ADA, go into effect on January 1, 2009. For more information on the provisions of the new law and what the law means for employers, please read our previous postings where these issues are discussed in more detail.

Posted in EEO

On August 14, 2008, President Bush signed into law the Consumer Product Safety Improvement Act of 2008 (CPSIA), which includes, among many extensive changes to consumer safety laws, a whistle-blower provision.

This provision applies to all manufacturers, distributors, retailers and private labelers of children’s toys, children’s products and child care articles, regardless of the number of employees. Under the Act, children’s toys and children’s products are generally defined as being "designed or intended primarily for children 12 years of age or younger."  "Child care articles" are defined as "a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething."

Continue Reading New Consumer Product Safety Whistleblower Law Enacted

The decision in a recent federal court case against the United States Library of Congress shows clearly the risk an employer takes when making employment decisions based on a person’s gender identity. In Schroer v. Billington, D.D.C., Case No. 05-1090, September 19, 2008, the Library of Congress was found guilty of sex discrimination under Title VII when it withdrew a job offer just after the Library became aware that the person being hired – Diane Schroer – was undergoing medical treatments to change her sex from male to female. Ms. Schroer is a decorated military veteran and had been hired for a terrorism research analyst position at the Library. Shortly after being hired, she disclosed the fact that she was undergoing sex change treatments, and the Library of Congress told her the next day that she would not be a “good fit” for the job.

Continue Reading Transsexuality-Based Decisions May Cause Problems Under Federal Sex Discrimination Laws

Posted in EEO

News confirming that the engineer of the Los Angeles commuter train that crashed last week, killing more than 20 people, engaged in text messaging while on the job underscores the need for employers to consider policies banning employee use of cell phones while driving on company business. Though it remains to be seen whether the engineer was texting at the time of the crash, the proliferation of electronic devices, such as Blackberries, and their potentially addictive use is helping to make "distracted driving" an increasing problem on the road. Simply put, distracted drivers are becoming more dangerous to themselves, their passengers and other motorists. Although distracted driving is a public problem that is not unique to employers, employers must recognize that they likely will be the "deep pockets" should a distracted employee cause a car accident. In fact, if the distracted employee also is injured in the accident, a workers’ compensation claim is also a strong possibility.

Some states have enacted laws restricting cell phone use while driving. Ohio is not one of them. As a result, Ohio law enforcement presumably is not obliged to police distracted driving (except in obvious cases of erratic driving). Therefore, to help manage their potential liability from distracted driving, Ohio employers should strongly consider banning the use of cell phones, Blackberries and similar devices while driving on company business as well as from conducting company business on such devices at anytime while driving. Otherwise, whether as a result of employees texting friends while driving on company business or responding to an urgent e-mail from the boss while driving, employers risk potentially significant liability.

For such policies to work, however, employers and employees will need to work together to ensure that the electronic device policy is enforced in a way that respects the fact that the employee may not be able to instantaneously respond to work issues while they are driving.