Sign Up
Stay current with GH&R Newsletters. Click here to sign up.
HR Matters
An Employee Must Show "Similar Qualifications" in Failure to Promote Lawsuits
January 27, 2006
LABOR & EMPLOYMENT NEWSAn Employee Must Show "Similar Qualifications" in Failure to Promote Lawsuits. Dawn White, a female college graduate with a major in sociology and minor in psychology, worked as a safety and crime prevention coordinator for the Columbus Metropolitan Housing Authority (CMHA). After working in the department for 20 years, White applied for a managerial position. The listed qualifications included, among other things, a bachelor's degree, knowledge of legal, investigative, and safety procedures, as well as 7-10 years experience as an investigator. After White interviewed, CMHA hired a male for the position. Unlike White, he had 17 years of experience in crime prevention as a military officer and private investigator. White sued CMHA claiming that CMHA discriminated against her because of her sex. The trial court dismissed White's lawsuit. White appealed claiming that the court improperly compared her qualifications to the male hired for the managerial position at the initial stage. The U.S. Court of Appeals for the Sixth Circuit disagreed and held that the plaintiff must show that the position went to a person outside the protected class with similar qualifications. (White v. Columbus Metro. Hous. Auth.)
'Last Chance' Agreement Does Not Trump Union Contract. A Kentucky manufacturing employee violated several employment rules. As a result of these violations, the employee signed a last chance agreement providing that if he committed any additional violations of the conduct or attendance rules that warrant written discipline, regardless of the nature of the violation within the next two years, he could be terminated at the sole discretion of the company. The employee received a written warning the following year for creating a hostile work environment. The employer refused to process the Union's grievance challenging the discharge, asserting that the termination was not grievable because the last chance agreement stated that neither the termination nor any issue of the termination would be subject to the grievance and arbitration provision of the collective bargaining agreement. The Sixth Circuit Court of Appeals rejected the employer's argument because the phrase "any issue of the termination" was ambiguous enough to support the union's bid for arbitration. (United Steelworkers of Am. Local 9423 v. Century Aluminum of Ky.)
WORKPLACE HEALTH & SAFETY NEWS
No Workers' Compensation Benefits for Psychological-Only Conditions. Kimberly McCrone was a bank employee from 1998 to 2001. During her employment, the bank where she worked was robbed twice. During the first robbery, McCrone was present but was not the teller involved; however, she was the teller robbed during the second robbery. After the second robbery, McCrone was diagnosed with posttraumatic stress disorder and did not return to work. She filed for workers' compensation benefits for her psychological condition, but the Industrial Commission denied benefits because her condition did not arise out of any physical injury. McCrone appealed into Court. The Trial Court and the Court of Appeals found in favor of McCrone. The bank appealed to the Supreme Court of Ohio. In a 5-2 decision, the Court found in favor of the bank and held the exclusion of purely psychological injuries from workers' compensation coverage is constitutional. Under Ohio law, psychological conditions that do not arise from a physical injury are excluded from the definition of "injury" and from workers' compensation coverage. The Court found the exclusion is reasonable because psychological injuries are more difficult to prove than physical injuries, and lawmakers have a genuine interest in protecting the limited resources of the workers' compensation fund. The fund should be kept at an adequate level for covered injuries rather than at an inadequate level for all potential disabilities. (McCrone v. Bank One Corp.)
EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION NEWS
Does Your Plan Provide an Indefinite Period to Elect COBRA? That question is raised by a recent Fifth Circuit decision. The statutory period for electing continuation coverage under COBRA ends "not earlier than 60 days" after the later of the date of the qualifying event or the date the required COBRA notice is received. In Lifecare Hospital, Inc. v. Health Plus of Louisiana, Inc., the Court held that the statutory deadline for electing COBRA only sets a minimum election period. If the plan document and COBRA notices simply reflect that statutory deadline, then a terminated employee has an indefinite period to elect COBRA. To avoid that result, it is important that all plan documents and COBRA notices clearly provide an ending date for the COBRA election. Typically, that ending date would be stated as 60 days from the later of the date of the qualifying event or the date the required COBRA notice is received. Employers should check their plan documents and contact a GH&R benefits attorney with any questions.
USERRA Final Regulations and Notice. The DOL has issued final regulations implementing the Uniformed Services Employment & Reemployment Rights Act (USERRA). One issue clarified in the final regulations concerns the type of non-seniority rights and benefits (other than health care) that must be provided to employees who are on military leave. The regulations provide that the employee on military leave is entitled to the non-seniority rights and benefits generally provided to other employees with, similar seniority and pay, who are on a leave of absence. If those benefits vary according to the type of leave, the employee on military leave must be given the most favorable treatment accorded to any comparable form of leave. If the leave is paid or unpaid is not a factor when determining whether any two types of leave are comparable. Instead, the employer should look at the duration of the leave, the purpose of the leave, and the ability of the employee to choose when to take the leave. Along with the USERRA final regulations, the DOL issued a final version of the required notice of USERRA rights. Employers should post the notice where other employee notices are customarily placed or to distribute by hand delivery, mail or e-mail. For a copy of the notice, use the following link: www.dol.gov/vets/programs/userra/USERRA_Private.pdf
Medicare Part D--Disclosure of Creditable Coverage Information to CMS. Under Medicare Part D regulations, group health plans offering prescription drug coverage to Medicare Part D eligible individuals (including active and retired employees and beneficiaries) must disclose to the Centers for Medicare & Medicaid Services (CMS) whether the plan coverage is creditable or non-creditable. An exception is made for those plans that have claimed the Medicare Part D subsidy. This disclosure notice is in addition to the disclosure notice that must be provided to individuals who are eligible for Medicare Part D benefits. The disclosure form is on the CMS website and must be filed electronically on an annual basis. For plan years ending in 2006, the deadline to file is March 31, 2006. For plan years ending after 2006, the filing deadline is 60 days after the first day of the plan year. Additionally, a disclosure form must be filed within 30 days after the termination of a plan's prescription drug coverage or a change in its creditable coverage status. The disclosure form requires the employer to provide an estimate of the number of Medicare Part D eligible individuals covered as of the first day of the plan year. The employer must also state the latest date on which it provided the required disclosure notice to individuals who are eligible for Medicare Part D. To access the disclosure form go to
www.cms.hhs.gov/apps/ccdisclosure/default.asp.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.