News and Analysis
Ohio Amicus Brief
Litigation: Ohio’s tort reform laws (SB 80) are headed to the Ohio Supreme Court. Earlier in the week, the OMA supported efforts in support of the respondents in the Arbino v. Johnson & Johnson case. This link is to the amicus brief filed by the Ohio Alliance for Civil Justice.
House and Senate Take Action In Support of Ohio Paint Manufacturers
Late Thursday night (12/14) final legislative action occurred on the amendment now contained in Sub SB 117 to stem a growing tide of lawsuits filed on behalf of municipalities against former manufacturers of lead-based paints and pigments. The suits stem from poor maintenance of old lead-based paints in public housing and the resulting health concerns raised. The OMA lead a coalition to fight this attempted erosion of state civil tort laws.
Votes on the amendment were generally along party line House: 55-33 and Senate: 19-12. However, included in the legislation was a controversial unrelated amendment dealing with the Ohio Consumer Sales Practice Act, which caused the defection of numerous Democrat legislators and a press statement from the current and future Attorney Generals.
The next step is Governor’s action. While initally supportive of the product liability / public nusance action amendment of the legislation, it is uncertain what the impact of the addition of the other amendment will be on the Governor’s final decision. The both sides of these issues including the OMA from the paint product liability standpoint will be lobbying for the Governor’s signature.
OMA President Eric Burkland’s Op-ed on the Issue
Joint Letter from Business Associations in Support of SB117
Link to the bill as concurred
Link to the joint Petro/Dann Press Release
Link to view floor debates
Op-ed from Eric Burkland
Letter of Support from Ohio Business Association Leaders
Lengthy House Session Sees Vote on Minimum Wage Implementation;
Supporters of Constitutional Amendment Promise Court Challenge
State Representatives finalized their work on the implementing language for State Issue 2, the minimum wage and record keeping amendment to the constitution. The legislation clarifies a number of concerns and confusions regarding the implementation of the record keeping provision.
What came out in the House version was:
1) “Employee” is defined to exclude employees who are exempt from the minimum wage requirements of the Fair Labor Standards Act such that employers are not required to pay those individuals the minimum wage, nor keep records of their hours worked.
(2) With respect to the records employers are required to maintain, employers must keep those for a rolling three year period.
(3) An employee or person acting on the employee’s behalf can request the particular employee’s records (but not records for all employees in an organization).
(4) A “person acting on behalf of an employee” is limited to (a) a certified or legally recognized collective bargaining representative, (b) the employee’s attorney, or (c) the employee’s parent, guardian, or legal custodian.
(5) Employers must provide the requested records within 30 business days after the employer receives the request, unless a different time period is agreed upon or unless the 30-day period would cause an undue hardship on the employer, in which case the employer must provide the requested records as soon as practicable.
The bill passed 55-42 with Republicans Jim Hughes (R-Columbus), Scott Oelslager (R-Canton), Tom Patton (R-Strongsville) and Jimmy Stewart (RAthens) joining the 38 Democrats in voting against the measure.
Democrats marveled in the floor debate that opponents of the ballot issue were the ones “in the room” writing the implementing legislation while, as Rep. Chris Redfern (D-Catawba) wondered, “Were the ballot supporters even in the same zip code?” Rep. Dan Stewart (D-Columbus) likened it to “the fox writing the rules of engagement at the then house.”
Meanwhile, the coalition of groups that helped lead a successful effort to raise Ohio’s minimum wage said Monday that a bill implementing Issue 2 would likely lead to court action.
Members of Ohioans for a Fair Minimum Wage said a lawsuit over HB690 (Seitz) would create uncertainty and confusion for employers and employees. The bill is scheduled for a floor vote in the House this week.
The group held a press conference at the Statehouse on Monday, saying they have three objections to the bill:
• The groups said it rewrites the voter-approved amendment to deny the new minimum wage to workers who were very clearly covered in the amendment, such as home healthcare workers and firefighters.
• They said it changes Ohio court rules to protect “bad apple employers” from having to repay unpaid minimum wages to all of their employees.
• It eliminates the current Ohio rule banning agreements to work for less than the minimum wage, creating a “back door” provision which could eliminate the minimum wage altogether.
“Our opponents are attempting to do an end-run around the newly passed constitutional amendment, the will of the voters, and results of the Nov. 7 election,” said Ohio AFL-CIO Legislative Director Tim Burga, a co-chair of the group. Courtesy of Hannah News Service
Poll Shows High Support for Taft Ideas, Low Support for Taft
Ohio voters support some of Gov. Bob Taft’s biggest policy proposals in the lame duck session. They just don’t support the lame duck governor.
A new Quinnipiac Poll found only 16 percent of Ohio voters approve of Taft’s job performance. But Peter Brown, assistant director for the polling institute, notes that with two key issues, Ohio voters are on his side.
The poll showed 54 percent agreed with Taft that the state shouldn’t be overriding local gun control laws, and 60 percent support Taft’s Ohio CORE plan to instill tougher high school graduation requirements.
Brown said the poll shows Taft is the least popular governor in the United States, and 55 percent said they believe Governor-elect Ted Strickland will do a better job.
The state Legislature didn’t fare much better. Only 25 percent approved of the body’s job performance.
On the issue of gun control, about 35 percent of respondents said Ohio’s gun control laws should be more strict, 12 percent said less strict, and 46 percent said the state’s laws were about right. When asked if it was a good idea or bad idea for the state to have the power to override local gun control laws, only 35 percent said it was a good idea, while 54 percent said it was a bad idea.
Not many people had heard of the Ohio CORE plan: five percent said they had heard a lot, 26 percent said some, 38 percent said not much and 30 percent said nothing at all. When asked if they would support toughened future high school graduation requirements, 60 percent were in support, while 26 were opposed.
Voters also said the Legislature should wait until next month when new members are sworn in to tackle the CORE plan (68 percent) and 65 percent are unwilling to pay more in local property taxes to support the plan.
The poll of 1,027 voters was conducted Dec. 4-10, and has a margin of error of plus or minus 3 percentage points.
Other highlights of the poll:
Four percent are very satisfied with the way things are going in Ohio; 33 percent are somewhat satisfied; 33 percent are somewhat dissatisfied and 29 percent are very dissatisfied.
44 percent ranked the economy as the top issue for the state; 16 percent said education; six percent said taxes; five percent said healthcare. Courtesy of Hannah News Service
Amendment Proponent Testimony House Judiciary Committee
Chairman Willamowski and members of the House Judiciary Committee my name is Ryan Augsburger and I am with the Ohio Manufacturers’ Association. I am here today on behalf of the OMA and others in the business community. I appreciate the opportunity to offer a few general comments in support of the proposed amendment.
We have some expert legal witnesses available to discuss the mechanics of the amendment and its implications, and respond to your questions.
We believe current Ohio law already provides a process to hold a manufacturer responsible when they produce a product that causes harm. SB 80 clarified that this is the process that must be used, but in an effort to ensure the spirit of SB 80 be upheld, we suggest the legislative clarification contained in the amendment before you.
Thanks to the recent list of enacted tort reforms Ohio’s prospects for job-creation have been enhanced. Companies look for fairness and predictability when making decisions about where to expand existing operations or locate new facilities. These are some of the reasons business organizations support civil justice reforms – to retain and attract economic development and jobs.
This amendment is necessary and it is necessary today because trial lawyers working on a contingency-fee basis are at work in our state to circumvent the many important changes to our civil justice system contained in SB 80. A new trend is emerging nationwide and in Ohio whereby out of state trial lawyers have recruited local governments to file suit, using public nuisance actions, against product manufacturers for producing a type of product many years ago. The current target is manufacturers of lead paint, but the stretch to other products and services is not far behind.
This type of practice poses a tremendous threat to Ohio’s business environment to misuse “public nuisance” law to sue companies that long ago produced a useful and legal product that has not been maintained. Manufacturers of almost any product could be sued for the failures of others to maintain the product, even if the manufacturers have done nothing wrong.
I suspect you are going to hear a lot about lead poisoning from opponents of this amendment. There is litigation pending between paint manufacturing companies and municipalities. These cases should get their due consideration in a courtroom.
Members of the General Assembly have already established a process to determine liability in these type of cases and that process should not be circumvented by creative legal arguments. You have before you the difficult job of writing a law to protect consumers but is fair to business. With these clarifications we believe you are doing that.
In conclusion, we ask for this committee’s support for the amendment. To explain the amendment and comment on the legal principals, we are pleased to have with us Mr. Rick Schuster, a partner with the law firm Vorys, Sater, Seymour, and Pease.
OMA’ Urges Legislators To Vote For Rationale Product Liability Tort Reforms For Paint Manufacturers
The OMA along with other state business associations contacted legislators this week (12/14)to urge their support for SB 117 which was amended to include product liability civil tort reforms for former manufacturers of lead-based paints and pigments.
Ohio Increases Minimum Wage and Recordkeeping Burden On Employers
On November 7, voters in Ohio said “yes” to an amendment to the Ohio Constitution that increases the minimum wage, sets the stage for annual “cost-of-living” increases, and grants employees new rights to access certain of their employment records. The new law affects the minimum wage in the following ways:
• Effective January 1, 2007, the Ohio minimum wage will increase from $5.15 to $6.85 per hour.
• On January 1 of each following year, the minimum wage will be increased by the percentage change of the Consumer Price Index for all urban wage earners and clerical workers (the CPI-W) in the year ending on September 30.
Under the new law, employers of the following classes of employees will be permitted to pay less than the established Ohio minimum wage:
• Tipped employees: employees who are paid tips, where the tips and wages combined exceed the established minimum wage, but the hourly wage must be at least 50 percent of the Ohio minimum wage.
• Family Members: family members who are employees in a family owned and operated business.
• The Disabled: individuals with mental or physical disabilities if the employers have a state issued license to do so.
Ohio’s heightened minimum wage will not apply to all Ohio workers. The federal minimum wage, currently at $5.15, still will apply to the following employees:
• Employees under age 16.
• Employees of businesses whose previous year’s gross receipts are $250,000 or less. The gross receipt figure would be adjusted at the same time each year and by the same percentage as would the minimum wage.
The new law also requires employers to maintain a record of the name, address, occupation, pay rate, hours worked each day and each amount paid to an employee. Those records must be obtained for three years. Interestingly, the law makes no distinction between exempt and non-exempt personnel. Despite the federal Wage and Hour law rules, which prohibit tracking worked hours for exempt employees, the new law purports to mandate the tracking of daily hours worked for all personnel.
Perhaps the greatest change brought about by the amendment is the area of records request. Unlike many states, and with the limited exception of medical records, Ohio previously has not had any law granting employees any right to access their personnel records. With respect to the records employers are now required to keep, the new amendment states: “Such information shall be provided without charge to an employee or person acting on behalf of an employee upon request.”
That language in the new amendment is anything but clear, and raises more questions than it answers. Who is a “person acting on behalf of an employee?” That probably includes a lawyer, but does it include a union representative or union organizer? Can the employee, or person acting on his/her behalf seek only his or her own information, or can information for other employees or all employees be requested? Does the employee have a right to take the records off-site? As originals, or copies? Or is the employee merely allowed to review the records and take notes, but not take originals or copies off the employer’s premises? What form must the employee’s request take — written or oral? To whom must it be directed? How long after said request does the employer have to respond? When the employer supplies the records to the state during an investigation, what measures should the employer take to ensure the privacy of employee information? Will such records be exempted from disclosure under Ohio’s Public Records Act? Will “persons acting on behalf ” of an employee be able to gain personal information like home address and pay rates for all personnel at the employer? Hopefully, some or all of these questions will be addressed through legislation or regulations that will implement the amendment.
The new law will be enforced in two ways: filing a complaint with the state, or filing a lawsuit in common pleas court. With respect to the first avenue of relief, an employee, any person acting on behalf of one or more employees, or “any other interested party” may file a complaint with the Ohio Department of Commerce (DOC). The DOC will conduct a prompt investigation, and during that investigation, the employer must provide any records related to the investigation. If the employer is found to have violated the law, the department may award the employee back wages, damages (calculated as an additional two times the back wages), the employee’s costs and reasonable attorneys’ fees.
As to enforcement through the courts, the state, or an employee or person acting on behalf of an employee may file a lawsuit in the county of the employee’s residence. If the employer is found to have violated the law, the court may award the employee back wages, damages (calculated as an additional two times the back wages), the employee’s costs and reasonable attorneys’ fees. Such a lawsuit shall be filed within three years from the date of the violation, or within one year after final disposition by the DOC of a complaint first filed with the state. There is no requirement that the employee exhaust administrative remedies; thus, filing a complaint with the DOC is not a prerequisite to filing a lawsuit in court.
The amendment includes a non-retaliation provision that prohibits an employer from firing or otherwise discriminating or retaliating against any employee for exercising any right under this law. If the state or a court finds a violation of the anti-retaliation provision of the law, they may award compensatory and punitive damages. The absence of any apparent limits on an employee’s right to request the pay records mandated by the new law, combined with the anti-retaliation provision, could make an employer vulnerable to employees (or their representatives) who abuse the rights granted by the amendment by making frequent records requests solely for the purpose of annoying and inconveniencing the employer.
Prior to November 7, Ohio’s minimum wage law frequently was overlooked by employers and employees. That is all about to change beginning January 1. Article from First Alert, a publication of Calfee, Halter & Griswold LLP From Calfee, Halter & Griswold LLP
Fedor Chosen Senate Minority Leader of 127th General Assembly
Sen. Teresa Fedor (D-Toledo) was selected to be Senate minority leader of the 127th General Assembly during an informal but binding vote by the caucus.
Also elected were Sen. Tom Roberts (D-Trotwood) as assistant minority leader, Sen. Ray Miller (D-Columbus) as minority whip and Sen.-elect Lance Mason (D-Cleveland) as assistant minority whip.
Sen. Kimberly Zurz, the current assistant minority leader who also had sought the leader position, was shut out of the new team.
Fedor said the team that was elected on Friday ran together as a group.
The vote was taken during a conference call initiated by outgoing Sen. Bob Hagan, dean of the current caucus. Zurz, who had other previous engagements, Sen.-elect John Boccieri (D-New Middletown) and current Senate Minority Leader C.J. Prentiss (D-Cleveland) were not on the conference call, although Boccieri faxed in his vote.
A formal vote is scheduled for Tues., Nov. 28.
Zurz could not be reached for comment. Her office said she is unavailable until after Thanksgiving.
Fedor said she is “humbled and honored” by the selection and said she believes her experience, with four years in leadership in the Senate and two years in the House, led to her selection. She also said her passion for education and school funding, two platforms of Gov.-elect Ted Strickland’s campaign, also was a factor.
Fedor said the caucus will formalize an agenda at a later date, but she said it will be close to the agenda of Strickland.
She said the election of Strickland will give Democrats more power in the 127th General Assembly.
“We will be relevant enough to be at the table,” she said.
The preceding article is an excerpt from The Hannah Report, Ohio’s daily legislative newsletter providing independent, timely and comprehensive coverage of state government. For more information, please contact Hannah News Service at 614.228.3113. From Hannah News Service:
Attention Ohio Employers: The “NO SMOKING” Sign is Lit
On November 7, Ohio voters overwhelmingly approved Issue 5, the ballot initiative to outlaw smoking in most public places in Ohio. What likely was lost on most voters, however, is that Issue 5, at its heart, is an employment law. The law is entitled the “Smoke Free Workplace Act,” and the use of the word “workplace” in the title was not accidental; the stated purpose of the law is to protect workers from the health hazards associated with second hand smoke.
The law enacts a new Section 3794 of the Ohio Revised Code, which will take effect December 7, 2006. Among other things, it states that proprietors of a public place or place of employment must prohibit smoking in all indoor areas and in adjacent locations of ingress or egress; and no individual can refuse to discontinue smoking in those areas when requested by the proprietor or an employee.
The law defines a number of key concepts and definitions. First, smoking is defined as burning, carrying, inhaling or exhaling any lighted cigar, cigarette, pipe or other lighted smoking device for burning tobacco or any other plant.
Proprietor is defined as an employer, owner, manager, operator, liquor permit holder, or person in charge or control of a public place or place of employment. Under the law, an employer is any individual or entity that employs or contracts for the services of one or more employees. Unlike other employment laws, which cover companies that meet certain size thresholds (like 4, 15, 100 employees), the Smoke Free Workplace Law covers all employers, regardless of size.
The law’s expansive definition of “proprietor” also covers persons like manager and person in charge. Especially in restaurants, bars and other service businesses, this places the burden of compliance with the law on personnel who could be fairly far down the organizational chart.
A public place is an enclosed area to which the public is invited or permitted. An enclosed area is an area with a roof and at least three walls. A place of employment is an enclosed area under the direct or indirect control of an employer that the employer’s employees use for work or any other purpose; the concept includes spaces such as offices, meeting rooms, sales, production and storage areas, restrooms, warehouses, garages, hallways, stairways and vehicles. In other words, the law prohibits smoking in all indoor areas of the workplace.
The law, however, does not stop at the door to your facility. The prohibition extends to areas under the control of the proprietor immediately adjacent to locations of ingress or egress — which means entrances and exits. Not only does the law push smokers outside, it pushes them away from entrances and exits. The days of the huddle of smokers right outside the door are gone — like it or not, smokers will have to move farther away.
The law does contain several exemptions, such that smoking still may take place in these places: private residences, but not when operating as a day care center or other business; family owned businesses in which all of the employees are related to the owner, but only if the enclosed areas of the place of employment are not open to the public; smoking rooms in hotels/motels; designated smoking areas of nursing homes, except that no employee can be required to work in the designated smoking area; retail tobacco stores, defined as retail establishments which derive 80 percent or more of their revenue from the sale of tobacco; outdoor patios; and private clubs.
The exemption for private clubs is curious — it applies only to clubs that have no employees — meaning most country clubs, athletic clubs, and dining and social clubs would not be within the exemption.
In addition to the complete ban on indoor smoking in any public place or place of employment, the law contains several other mandates. A proprietor or employer must ensure that smoke from areas where smoking is allowed, such as an outdoor patio, does not enter any area where smoking is prohibited. The law also requires “no smoking” signs to be conspicuously posted in every public place and place of employment, including at each entrance. No employer can retaliate against an individual for exercising any right under the law, including reporting a violation. Finally, the owner or operator of an establishment, facility or outdoor area that is not within the law’s ban on smoking may declare that establishment as a nonsmoking place, thereby bringing the place within the law’s power to punish persons who refuse to stop smoking when ordered to do so.
The law will be enforced by the Ohio Department of Health (DOH), or local departments of health designated by the state agency. There are two basic types of violations: (1) proprietor violations, i.e., a proprietor of a public place or place of employment who fails to prohibit smoking; and (2) individual violations, i.e., individuals who refuse to discontinue smoking immediately upon request. For both types of violation, the first offense will result in a warning letter from the DOH. Upon a report of a second and any subsequent offense, the DOH will conduct an investigation, and if it finds a violation, can impose civil fines under a schedule of fines to be set by regulation. In the case of repeat violations, the department may seek an injunction.
The effective date of the law is December 7, 2006. The DOH is promulgating regulations, which are expected to issue in six months. The law likely will not be enforced aggressively prior to the issuance of the regulations; nonetheless, employers should begin planning now to come into compliance on or close to the December 7 effective date. That planning should include — especially in the case of restaurants, bars and other places where smoking has been allowed up until now — training of managers and supervisors on what their obligations are under the law and how to meet those obligations. Article from First Alert, a publication of Calfee, Halter & Griswold LLP
‘On the Money’ Looks at Tax Reforms
The following is an excerpt from the “On The Money” publication, written by the consulting firm of Levin, Driscoll, and Fleeter.
“Economists like to say that there is no such thing as a free lunch. The phrase is meant to convey the idea that to get something of value, you must give up something of value, even if the trade isn’t always apparent. Budgets and tax reform can be thought of as involving a series of trade-offs. HB66, like all budgets, involved a great many of them. Major tax reductions were, in effect, paid for with some offsetting tax increases (and also with some spending reductions).”
The article looks at the six major tax reforms in HB66. The first two changes — CAT and cigarette — are tax increases; the other four are reductions.
“To illustrate the phase-in aspect, we’ll generally make note of the first-year cost (FY06) and fifth-year cost (FY10). In two cases, the cigarette and sales taxes, the impact doesn’t change appreciably over time. Both were fully implemented in the first year. In the other four cases, the impact rises or falls dramatically. They are the reforms that are phased in or phased out over the period.”
The preceding article is an excerpt from The Hannah Report, Ohio’s daily legislative newsletter providing independent, timely and comprehensive coverage of state government. For more information, please contact Hannah News Service at 614.228.3113. From Hannah News Service