Ohio Supreme Court Ruling Impacts Employer Leave Policies
By Margaret Lockhart
Cooper & Kowalski
The Ohio Supreme Court ruled on June 22, 2010 that an employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility, with no exception for maternity leave, is not direct evidence of sex discrimination under Ohio law. McFee v. Nursing Care Mgt. of Am., Inc., Slip Op. No. 2010-Ohio-2744 (June 22, 2010).
Approximately eight months after she began working for the Pataskala Oaks Care Center, Sandra McFee requested time off for a pregnancy related condition. Under Pataskala Oaks' policy, employees were not eligible for leave until they were employed for a period of one year. McFee gave birth shortly thereafter, and Pataskala Oaks terminated her employment because she was not eligible for leave.
McFee filed a charge with the Ohio Civil Rights Commission (OCRC), claiming unlawful sex discrimination on the basis of pregnancy. Rejecting an ALJ's decision, the OCRC found that the employer's policy constituted unlawful sex discrimination. The Licking County Common Pleas Court disagreed. But the Fifth District Court of Appeals reversed, concluding that because Ohio's anti-discrimination laws require employers to provide employees with a reasonable period of maternity leave, a policy that does not provide maternity leave to employees with less than one year of service is unlawful.
The Ohio Supreme Court reversed. The Court recognized that McFee was terminated for taking unauthorized leave, not because of pregnancy. Under Ohio Revised Code § 4112.05, McFee's employer was required to treat her “the same for purposes of leave eligibility as other employees who are similar in their ability or inability to work.” The Court also addressed Ohio Administrative Code § 4112-5-05(G)(2), which states: “Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.” This provision does not, as the OCRC argued, mandate that employers provide maternity leave to employees regardless of whether they qualify for leave under the employer's uniform minimum-length-of service policy. If the rule is read to require such leave, the Court concluded, it is unconstitutional. And requiring that employers provide such leave would give preferential treatment to employees affected by pregnancy, rather than equal treatment.
The Court confirmed that employers must apply leave policies uniformly. Dissenting, Justice Pfeifer stated: “The facts of this case are such that an ordinary citizen would think, „There ought to be a law against that. Until today, there was.”
United States Supreme Court decision invalidates hundreds of NLRB rulings
The United States Supreme Court in New Process Steel, L.P. v. NLRB held that almost 600 decisions issued by a two-member panel of the NLRB between January, 2008 and March, 2010 are invalid because the NLRB must have at least three members to act. The Court did not address whether the newly constituted NLRB may simply ratify or must reconsider the invalid decisions. But many of the decisions followed precedent that the new Board, which includes two new pro-union members, may desire to overrule.
United States Supreme Court finds no Fourth Amendment violation in police department’s review of officer’s text messages on police department pager
Sgt. Jeff Quon sent and received steamy text messages on his police department issued pager. His employer, the City of Ontario, reviewed the messages to determine whether its wireless contract was sufficient and whether it was paying for excessive personal messages. Quon objected, claiming that the city invaded his privacy and violated his rights under the Fourth Amendment.
Quon had signed an acknowledgment that he had no expectation of privacy when using city issued electronic devices, but his supervisor told him that the city would not review his personal messages as long as he paid any extra charges if his usage exceeded monthly limits. The Supreme Court assumed, but did not decide, that Quon had a reasonable expectation of privacy in the text messages. The Court also assumed that the city's review of text messages was a search for purposes of the Fourth Amendment. But the Court found the search lawful because the city had a legitimate business reason for reviewing the messages, and its review was not excessive in scope. City of Ontario v. Quon.
Although the Court did not define the employee's privacy rights, it emphasized the importance of having a clear, comprehensive and widely distributed electronic resources policy. The Court's decision also illustrates the importance of acting reasonably when searching employee's electronic communications.
Federal Contractors and sub-contractors must post notice of NLRA rights
Effective June 21, 2010, all non-exempt federal contractors and subcontractors must post notices advising employees of their rights under the National Labor Relations Act (NLRA), and must impose that requirement on their subcontractors. This requirement arises from Executive Order 13496, which President Obama signed on January 30, 2009. Contractors face disbarment for continuing refusal to post. Copies of the poster and additional information are available at http://www.dol.gov/olms/regs/compliance/EO13496.htm.
