More and more these days it seems like the obligations of being a lawyer, husband, father, son, sports fan, etc, get in the way of blogging. As a result, I end up accumulating a number of worthwhile topics for blog posts that end up in the discard pile. Twitter helps keep the backlog to a minimum, but I really don’t know how many of you actually follow me @briandhallesq (hint, hint). So, while I am by no means committing to make this a regular feature of Employer Law Report, I will now clear – in no particular order — my backlog for the month:

According to a Wall Street Journal article, a recent lawsuit seeks a declaration from the New York Department of Labor that putting a GPS tracker on an employee’s family car to uncover time sheet violations was a violation of the state constitution’s guarantee against unreasonable searches and seizures. According to the lawsuit, the monitoring continued during evenings, weekends and a family vacation. This won’t turn out well for the employer.

An Ohio appellate court has upheld a physician’s non-compete agreement that prohibited him from engaging in a hematology or oncology practice in his former employer’s "primary service area." This decision continues the Ohio trend of upholding physician non-competes and Ohio courts have repeatedly rejected the argument that covenants are not enforceable against physicians solely because they impair patients’ choice.Continue Reading Clearing the Backlog – September

Under Ohio law, employees may sue their employer to recover damages for an employer intentional tort – even when the injuries are otherwise covered by workers’ compensation.  Because these cases can be costly to defend, employers historically have purchased commercial general liability policies with “stop-gap” insurance endorsements for years, believing these provisions imposed a duty to defend the employer against an employer intentional tort lawsuit.

On July 6, however, the Ohio Supreme Court decided Ward v. United Foundries, Inc., determining that Gulf Underwriters Insurance Company did not have a duty to defend United Foundries, Inc. under such a stop-gap endorsement in an employer intentional tort action.Continue Reading Supreme Court Says No Duty To Defend Employer Intentional Tort Claims Under Stop Gap Insurance Endorsements

On June 9, 2011, the Ohio Supreme Court issued its long awaited decision in Sutton v. Tomco Machining, Inc., in which the Court expanded the scope of workers’ compensation retaliation protection to include employees who are injured on the job but have not yet filed an actual workers’ compensation claim.
Continue Reading Sutton v. Tomco Machining, Inc.: Ohio Supreme Court Expands Workers’ Compensation Retaliation Protection

In the day-to-day administration of their Ohio workers’ compensation programs, self-insured employers (or a TPA or law firm on their behalf) often will obtain a medical authorization from the injured worker and then obtain medical records as part of the employers’ medical investigation. Though the authorization is often limited to specific injuries or body parts, they are just as likely not to be so limited. In addition, despite HIPAA requirements, healthcare providers often produce records in excess of what has been authorized (presumably because they don’t want to take the time or effort to cull through the records and produce only what has been asked for.)  As a result, the records obtained frequently will include medical information wholly unrelated to the alleged workers’ compensation injuries and sometimes that information reveals genetic information, such as whether an individual had a test done to determine whether she is at greater risk for breast cancer.  Hospital records are notorious for including family history information that may reflect, for instance, that a parent died of cancer or a heart attack at a relatively young age, even when the individual went to the hospital only to have an injured knee looked at.

As a result, in the workers’ compensation context, employers are frequently obtaining genetic information even though they really haven’t asked for it.  Should the EEOC’s final rule on Title II of GINA then have any impact on employers’ approaches to their medical investigations conducted in the defense of workers’ compensation claims?  Though the rule states that GINA is not intended to “limit or expand the protections, rights, or obligations of employees or employers under applicable workers’ compensation laws,” does that language provide clearance to employers to obtain through its workers’ compensation administration what otherwise would be protected genetic information?  According to the EEOC, “genetic information” does not include the fact that an individual has a diagnosed disease, disorder, or pathological condition, so it is difficult (at least for me) to come up with examples of situations when an employer would need genetic information on an employee to assist in the defense of a workers’ compensation claim.  Therefore, one could argue that application of GINA to an employer’s medical inquiries and examinations for workers’ compensation purposes does not limit an employer’s rights or expand an employee’s protections under the workers’ compensation laws.

 Continue Reading Will GINA Impact Ohio Employers’ Ability to Conduct Medical Investigations In Workers’ Compensation Claims?

In June 2009, we reported on the Ohio Supreme Court’s decision to create a narrow exception to the broad BWC successor rules. The Ohio Supreme Court’s decision in State ex rel. Valley Roofing, LLC v. Ohio Bureau of Workers’ Compensation created a small exception to the BWC’s broad authority to impose successorship liability when it held that a business that acquired another business’s assets via a bank foreclosure was not a successor to the previous business.

Ohio’s courts have long held that the workers’ compensation statute authorizes the BWC to find successorship whenever “any employer transfers a business in whole or in part or otherwise reorganizes the business.” This broad definition permits the BWC to transfer the experience of a predecessor business to the purchasing business if the purchaser is succeeding the predecessor in some part of the operations of the business. Based on whether the purchase was of all or part of the operations, the BWC will transfer all or part of the predecessor’s experience, rights and obligations to the purchaser.

 Continue Reading Ohio BWC Creates New Rule Circumventing the Ohio Supreme Court’s Decision

On Tuesday, May 25, 2010, Representatives Phillips and Driehaus introduced in the Ohio General Assembly a bill that effectively would create a single definition of “employee” for purposes of Ohio workers’ compensation, unemployment compensation, payroll taxes, minimum wage and other purposes. Presently, each statute contains its own test for determining whether an individual is an employee or an independent contractor, often resulting in conflicting results.

If passed, this legislation would create a single seven-factor test for evaluation whether an individual truly is an independent contractor.

For an individual to be an independent contractor under H.B. 523, all of the following factors would have to be met:

  1. The individual has been and continues to be free from control and direction in connection with the performance of the service.
  2. The individual customarily is engaged in an independently established trade, occupation, profession, or business of the same nature of the trade, occupation, profession, or business involved in the service performed.
  3. The individual is a separate and distinct business entity from the entity for which the service is being performed or, if the individual is providing construction services and is a sole proprietorship or partnership, the individual is a legitimate sole proprietorship or a partner in a legitimate partnership.
  4. The individual incurs the main expenses and has continuing or recurring business liabilities related to the service performed.
  5. The individual is liable for breach of contract for failure to complete the service.
  6. An agreement, written or oral, express or implied, exists describing the service to be performed, the payment the individual will receive for performance of the service, and the time frame for completion of the service.
  7. The service performed by the individual is outside of the usual course of business of the employer.

Continue Reading Ohio H.B. 523 Would Unify Definition of Employee, Make it Easier to Find Misclassification

On Tuesday, in two separate decisions, the Ohio Supreme Court finally resolved the lingering question as to the constitutionality of a state law that limits the ability of workers who are injured on the job to sue their employers for a “workplace intentional tort” in addition to receiving workers’ compensation benefits.
Continue Reading Ohio Employer Intentional Tort Statute Survives Challenge