Labor Law - Superseniority

In N.L.R.B. v. Joy Technologies, Inc., 990 F.2d 104 (3rd Cir. 1993), the Court observed that "[a]ny exercise of superseniority raises potential problems under the NLRA because a superseniority clause necessarily ties job right and benefits to union activities, thereby encouraging union participation." Id. at 108. In Joy Technologies, the Court upheld a Board order that found than an employee whose natural seniority was adversely affected by an exercise of super-seniority that caused him to be bumped was an unfair labor practice. Essentially, the court found that this exercise of super-seniority extended beyond layoff and recall; the provision that permitted this practice was overly broad and was unlawful.

Negligent Hiring, Retention

The party seeking to prevail on a claim for the negligent hiring, supervision and retention of an employee by an employer must show: "`"(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5) the employer's negligence in hiring or retaining the employee as the proximate cause of plaintiff's injuries."' Steppe v. Kmart (1999), 136 Ohio App.3d 454, 465.

Non-Compete Clause

1. A covenant not to compete which imposes unreasonable restrictions upon an employee will be enforced to the extent necessary to protect an employer's legitimate interests. * * *

2. A covenant restraining an employee from competing with his former employer upon termination of employment is reasonable if the restraint is no greater than is required for the protection of the employer, does not impose undue hardship on the employee, and is not injurious to the public. Raimonde v. Van Vlerah (1975), 42 Ohio St.2d 21, Syllabus.

Factors which may be considered in determining whether a noncompete clause is reasonable include the clauses' geographic and temporal limits, if any; whether the employee represents the sole customer contact; whether the employee possesses confidential information or trade secrets; whether the clause seeks to restrain ordinary, rather than unfair, competition; whether the clause stifles the pre-existing skills of the employee or only those skills that were developed while working for the employer; the balance of the clause's detriment to employer and employee; whether the clause restricts the employee's sole means of support; and whether the restricted employment is merely incidental to the main employment.

An employer who seeks an injunction to enforce a noncompete clause must not only establish the reasonableness of the noncompete clause at issue but must also show that the employer is likely to suffer irreparable harm as a result of the employee's breach of that clause. Levine v. Beckman (1988), 48 Ohio App.3d 24.

Retaliation - Proof

Neal v. Hamilton Cty. (1993), 87 Ohio App.3d 670, 677. To establish a prima facie case of retaliatory discharge a plaintiff must show, in addition to the elements required to establish a prima facie discrimination case, that: (1) she engaged in a protected activity; (2) the employer knew of her participation in the protected activity; and (3) the alleged retaliatory action followed the plaintiff's participation in the protected activity sufficiently close in time to warrant an inference of retaliatory motivation. If this burden is met the employer must then articulate a legitimate, nondiscriminatory reason for its action and the plaintiff must then show the reason to be pretextual. The plaintiff cannot prevail if it appears from the evidence that the employer would have made the same decision regardless of plaintiff's participation in the protected activity.

To prove a claim of retaliation, Claimant must establish three elements: (1) that she engaged in protected activity; (2) that she was subjected to an adverse employment action; and (3) that a causal link exists between a protected activity and the adverse action. Peterson v. Buckeye Steel Casings (1999), 133 Ohio App.3d 715, 727.

Reverse Discrimination

In a reverse discrimination case, Claimant must show "background circumstances supporting the inference that his employer was the unusual employer who discriminated against nonminority employees." Carney v. Cleveland Hts.-Univ. Hts. City School Dist. (2001), 143 Ohio App.3d 415, 428.

Sexual Harassment - Actionable Conduct - Environment

The court must examine the circumstances surrounding the conduct and must consider them within the framework of several factors to determine if the conduct is actionable. These factors include the following:

(1) the conduct's frequency;

(2) the conduct's severity;

(3) whether the conduct is physically threatening or humiliating; and

(4) whether the conduct unreasonably interferes with the victim's work performance. Harris v. Forklift Systems, Inc. (1993), 510 U.S. 17, 23.

Whether harassing conduct constitutes discrimination based on sex is determined by whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. Oncale v. Sundowner Offshore Serv., Inc. (1998), 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201; Scusa v. Nestle U.S.A. Co. (C.A.8, 1999), 181 F.3d 958, 965. See, also, Harris v. Forklift Sys., Inc. (1993), 510 U.S. 17, 25, 114 S.Ct. 367, 126 L.Ed.2d 295 (Ginsburg, J., concurring).

"[H]arassment alleged to be because of sex need not be explicitly sexual in nature." Carter v. Chrysler Corp. (C.A.8, 1999), 173 F.3d 693, 701. Actions that are simply abusive, with no sexual element, can support a claim for sexual harassment if they are directed at an employee because of his or her sex.

Sexual Harassment - Co-Worker

When the alleged harasser is not a supervisor, but a co-worker, the employer may be liable to the plaintiff based on its own negligence. Under this scenario, an employer may be liable for the sexual harassment of an employee by a co-worker when the employer knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate action. Blankenship v. Parke Care Ctrs., Inc. (C.A.6, 1997), 123 F.3d 868, 872-873.

Sexual Harassment - Hostile Work Environment

In order to establish a claim of hostile work environment sexual harassment, the plaintiff must show (1) that the harassment was unwelcome, (2) that the harassment was based on sex, (3) that the harassing conduct was sufficiently severe or pervasive to affect the "terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment," and (4) that either (a) the harassment was committed by a supervisor, or (b) the harassment was committed by a non-supervisor employee and the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action. Hampel v. Food Ingredients Specialties, Inc. (2000), 89 Ohio St.3d 169, 729 N.E.2d 726, at paragraph two of the syllabus.

The conduct at issue must be "unwelcome" in that the plaintiff neither solicited it nor invited it and regarded the conduct as undesirable or offensive. See Meritor Sav. Bank, FSB v. Vinson (1996), 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49. "The proper inquiry is whether [appellant] indicated by [her] conduct that the alleged harassment was unwelcome." Quick v. Donaldson Co. (C.A.8, 1996), 90 F.3d 1372, 1378, citing Meritor, supra, at 68.

Not all workplace conduct that can be construed as having sexual overtones can be characterized as harassment forbidden by the statute. Meritor Savings Bank v. Vinson (1986), 477 U.S. 57, 67. Rather, the conduct complained of must be severe or pervasive enough to create an environment that not only the victim subjectively regards as abusive but also a reasonable person would find hostile or abusive. Harris v. Forklift Systems, Inc. (1993), 510 U.S. 17, 21-22. Pursuant to this standard, conduct that is merely offensive is not actionable. Id. at 21.

Sexual Harassment - Quid Pro Quo

In order to sustain his quid pro quo claim, plaintiff must demonstrate (1) that the employee was a member of a protected class, (2) that the employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors, (3) that the harassment complained of was based on gender, and (4) that the employee's submission to the unwelcome advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to the supervisor's sexual demands resulted in a tangible job detriment. Kauffman v. Allied Signal, Inc., Autolite Div. (C.A.6, 1992), 970 F.2d 178, 185-186.

We hold that the plaintiff must suffer an actual effect on his terms of employment rather than suffer mere threats. . . For example, in the related "hostile work environment" context, no amount of harassment is actionable until it affects the terms and conditions of employment. We hold that the same requirement exists in a quid pro quo claim under R.C. Chapter 4112. Schmitz v. Bob Evans Farms, Inc. (1997), 120 Ohio App.3d 264

Title VII (of the Civil Rights Act)

Title VII), as amended, as it appears in volume 42 of the United States Code, beginning at section 2000e. Title VII prohibits employment discrimination based on race, color, religion, sex, pregnancy, and national origin. The Civil Rights Act of 1991 (Pub. L. 102-166) (CRA) amends several sections of Title VII.

Title VII extends protection to "applicants" for employment; ADEA does not.

Workers Compensation - Compensable Injury

Ohio Revised Code § 4123.01 (C) defines what is considered a compensable injury under the Ohio Workers' Compensation Act. An injury which falls within the coverage of the Act is "any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee's employment."

There are three discrete elements. Two of the elements describe the conditions under which the injury must occur: "in the course of" employment and "arising out of" the employee's employment. These elements have explicitly been recognized as conjunctive. Both of them must be proven and all elements of the test must be met before compensation will be permitted. Fisher v. Mayfield, (1990) 49 Ohio St. 3d 275 , 277. The third element describes the essential nature of the injury. It requires that the injury be "caused by external accidental means or accidental in character and result." § 4123.01(C).

Workers Compensation - "Arising Out Of"

The test of the right to participate in the Workers Compensation Fund is "whether the employment had some causal connection with the injury, either through its activities, its conditions or its environments." Industrial Commission v. Weigandt, 102 Ohio St. 1 (1921). The Fisher court found that this requirement for a causal connection was associated with the "arising out of" prong of the statute. 49 Ohio St. 3d at 277.

In Bralley v. Daugherty, 61 Ohio St. 2d 302, 305 (1980), the court emphasized that the determination of causality is not a narrow inquiry, but based on the "totality of facts and circumstances."

In Lord v. Daugherty, 66 Ohio St. 2d 441 (1981), the Ohio Supreme Court refined the test for determining whether there is a causal connection between the injury and the employment by elaborating on the concept of "the totality of the facts and circumstances regarding the accident:"

Such circumstances include: (1) the proximity of the scene of the accident to the place of employment, (2) the degree of control the employer had over the scene of the accident, and (3) the benefit the employer received from the injured employee's presence at the scene of the accident.

Workers Compensation - "In the Course Of"

The Fisher court interpreted the "in the course of" prong to relate to the time, place and circumstances of the injury. Id.

Workers Compensation - "Zone of Employment"

Blair v. Daugherty, 60 Ohio App. 2d 165 (Ohio Ct. App. 2nd 1978) and Remer v. Conrad, 153 Ohio App. 3d 507, 511 (Ohio Ct. App. 6th 2003) rely on the "zone of employment" rule, a rule that focuses on the location of the employee at the time of the injury, irrespective of the time (e.g., before, during or after hours of employment).

As the Blair court notes, the zone of employment encompasses a notion that there are "peculiar circumstances and hazards" existing in relation to the premises of employment. 60 Ohio App. 2d at 168. In Blair, the employee "was exposed to the hazards of the [public] streets while within his zone of employment, and his injuries were a natural consequence of such exposure." Id. at 169. Citing Marlow v. Goodyear Tire & Rubber Co., 10 Ohio St. 2d 18 (1967), the court described a natural hazard of the zone as one "not self-inflicted or a result of an act of nature or of an occurrence inconsistent with his employment, its activities, conditions or environments." Likewise, the Remer court notes that an injury arises out of employment if it "follows as a natural incident of the work and as a result of exposure occasioned by the nature, conditions, and surroundings of the employment. 153 Ohio App. 3d at 511.

SERB Balancing Test

In re SERB v. Youngstown City School Dist. Bd. of Ed. SERB 95-010 (June 30, 1995). The balancing test must be applied only to those subjects that have both a material influence upon wages, hours or terms and other conditions of employment and involved the exercise of inherent managerial discretion. Id. Moreover, because the matter was a permissive subject, the Board was not required to provide notice of the change.

The balancing test adopted in Youngstown requires that the following factors be balanced to determine whether subjects of bargaining are mandatory or permissive:

1) the extent to which the subject is logically and reasonably related to wages, hours, terms and conditions of employment;

2) the extent to which the employer's obligation to negotiate may significantly abridge its freedom to exercise those managerial prerogatives set forth in and anticipated by O.R.C. 4117.08 (C), including an examination of the type of employer involved and whether the inherent discretion on the subject matter at issue is necessary to achieve the employer's essential mission and its obligations to the general public; and

3) the extent to which the mediatory influence of collective bargaining and, when necessary, any impasse resolution mechanisms available to the parties are the appropriate means of resolving conflicts over the subject matter.

SERB Last Best Offer

In re Youngstown City School Dis. Bd. of Ed., SERB 95-010 (6-30-95). The implementation of last best offer is permissible only when there are unforeseen exigent circumstances or statutory requirements for implementation; otherwise implementation of the last best offer is considered an unfair labor practice. See In re Toledo City School Bd. of Ed., SERB 2001-005 (10-1-02). Accordingly, implementation of a last best offer that constitutes an unfair labor practice may preclude the occurrence of the point of ultimate impasse.

SERB Mid-Term Bargaining

An employer must bargain during the term of a CBA:

Where the parties have not adopted procedures in their collective bargaining agreement to deal with the midterm bargaining disputes, SERB will apply the following standard to determine whether an unfair labor practice has been committed when a party unilaterally modifies a provision in an existing collective bargaining agreement after bargaining the subject to the ultimate impasse defined in Vandalia-Butler.

A party cannot modify an existing collective bargaining agreement without the negotiation by and agreement of both parties unless immediate action is required due to (1) exigent circumstances that were unforeseen at the time of negotiations or (2) legislative action taken by a higher level legislative body after the agreement became effective that requires a change to conform to the statute.

In re Toledo City School Board of Education, SERB 2001-005 (10-1-01).

This two-part test of when an employer must bargain also includes when the issue is not covered by the CBA but which is one that requires mandatory midterm bargaining.

SERB Past practice or custom

A past practice is a custom or practice evolved as a normal reaction to a recurring situation; it must be shown to be an accepted course of conduct characteristically repeated in response to a given set of underlying circumstances. In re Defiance City School Dist. Bd. of Ed., SERB 97-016 (November 21, 1997).

SERB Ultimate Impasse

An ultimate impasse is reached when, under the facts of a given case, "there is no realistic possibility that a continuation of discussion at that time would have been fruitful." It is the point at which good faith negotiations toward reaching an agreement have been exhausted. It is not, however, reached when a union gives notice of its intent to strike. In re Vandalia-Butler City School Dist Bd. of Ed, SERB 90-003 (2-9-90).

Ultimate impasse may occur simultaneously with the expiration of the collective bargaining agreement ("CBA"). It may occur at the conclusion of the status quo ante period. (The status quo ante is a middle period between official contract expiration and the exhaustion of the dispute settlement procedures. It is an independent legal requirement that does not take effect until a contract is expired. SERB HO 1997-HO-008, SERB v. City of Cleveland).

Ultimate impasse may occur just prior to when any of the following four events take place:

1. When dispute settlement procedures have been exhausted;

2. When an employer implements its last best offer;

3. When public employees strike (if permitted to do so); or

4. When public employees must arbitrate (when required to do so).

Ultimate impasse cannot occur prior to:

1. The expiration of the CBA or

2. The exhaustion of statutory settlement procedures

whichever occurs later. . . "Except as the parties may modify the negotiation process by mutually agreed-upon dispute settlement procedures, the parties shall continue in full force and effect all the terms and conditions of any existing collective bargaining agreement, without resort to strike or lockout, for a period of sixty days after the party gives notice, until the expiration date of the collective bargaining agreement, or the statutory dispute settlement procedures are exhausted, whichever occurs later." SERB v. City of Cleveland, SERB HO 1997-HO-008 (1-24-97) citing O.A.C. 4117-9-02 (E).

Ultimate impasse does not occur when:

1. There has been a breach of duty to bargain in good faith or

2. When employees strike but negotiations are continuing.

SERB Unilateral Change - Duty to Bargain

A public employer does not have free reign in terms of managerial discretion. If the employer intends to implement a decision which affects wages, hours, or terms and conditions of employment of bargaining unit members, then the employer must bargain the issue. In re Mayfield City School Dist. Bd. of Edn., SERB 89-033, *3-234 (December 20, 1989). "[T]he party wishing to make a change, at the very least, must give timely notice of the change to the other party. Otherwise, the bargaining obligation is unfulfilled." Id.

SERB Unilateral Change - Duty to Bargain Threshold

If there were found to be a unilateral change in wages, hours, or terms and conditions of employment, the change would have to be "material, substantial and significant" to warrant a duty to bargain. In the Matter of SERB v. Olmsted Township, SERB 99-022 (September 2, 1999).

A de minimis change is not subject to collective bargaining. SERB v. Cleveland Heights-University Heights Bd. of Ed., SERB HO 1997-BD-012 (March 28, 1997).