Sign Up
Stay current with GH&R Newsletters. Click here to sign up.
HR Matters
Supreme Court Increases Paths for Filing Age Discrimination Claims.
April 30, 2005
LABOR & EMPLOYMENT NEWS
Supreme Court Increases Paths for Filing Age Discrimination Claims. Employees may file "disparate impact" claims under the Age Discrimination in Employment Act (ADEA). The U.S. Supreme Court allowed disparate impact claims in Smith v. City of Jackson. Prior to that case, employees were limited to filing disparate treatment claims (i.e., intentional discrimination) in age discrimination cases. Under a disparate impact theory, employees may sue their employers over facially neutral policies that have a discriminatory impact on the protected class. More importantly, employees do not have to prove intent in disparate impact claims. The Court noted, however, that there is often a correlation between an employee's age and his performance. This correlation is not surprising since physical ability and mental capacity generally decline with age. As such, employers may defeat disparate impact claims if their actions were based on reasonable factors other than age. The Court ruled for the employer in the aforementioned case. The city's compensation plan for police officers treated younger officers more favorably than older ones; however, the Court found that the city's reliance on seniority and rank were unquestionably reasonable given its goal to match salaries of junior officers with those in surrounding communities. (Smith v. City of Jackson)
Employees may file "disparate impact" claims under the Age Discrimination in Employment Act (ADEA). The U.S. Supreme Court allowed disparate impact claims in Smith v. City of Jackson. Prior to that case, employees were limited to filing disparate treatment claims (i.e., intentional discrimination) in age discrimination cases. Under a disparate impact theory, employees may sue their employers over facially neutral policies that have a discriminatory impact on the protected class. More importantly, employees do not have to prove intent in disparate impact claims. The Court noted, however, that there is often a correlation between an employee's age and his performance. This correlation is not surprising since physical ability and mental capacity generally decline with age. As such, employers may defeat disparate impact claims if their actions were based on reasonable factors other than age. The Court ruled for the employer in the aforementioned case. The city's compensation plan for police officers treated younger officers more favorably than older ones; however, the Court found that the city's reliance on seniority and rank were unquestionably reasonable given its goal to match salaries of junior officers with those in surrounding communities.
New Cincinnati Smoking Act Requires Employers to Write Policies & Post Signs. The Clean Indoor Air Act becomes effective on May 13, 2005. Although the Act prohibits smoking in all public places (any indoor area where the public is invited, permitted, or customarily uses), it exempts several places. For example, bars, bowling alleys, charitable bingo events, and 30 percent of hotel rooms are exempt from the Act's coverage. Also, restaurants must have separate areas for smokers if the owner chooses to allow smoking. Some key features of the Act include:
Smoking Areas. The Act allows employers to designate smoking areas for employees provided that they are separate from public places. If the smoking area is outside, it must not expose the general public to secondhand smoke to any degree while entering or exiting the establishment.
Posting Signs. Every public place where smoking is prohibited throughout the entire facility must display a "No Smoking" sign or international symbol at every entrance. For places where smoking is permitted throughout the premises, the employer must post "Smoking Permitted" signs or international symbols at all entrances. If the public place allows smoking in designated areas, the employer must post "No Smoking in Designated Areas" signs or international symbols at all entrances.
Written Policy. The Act requires every employer within the City of Cincinnati to implement a written smoking policy that informs employees that they will be subject to disciplinary action if they violate the policy. Employers must provide a copy of the policy to all employees and prospective employees.
If you need assistance drafting a smoking policy, please contact a member of the GH&R Labor & Employment Practice Group.
WORKPLACE HEALTH & SAFETY NEWS
Inconsistent Medical Records Preclude Temporary Total Compensation. An injured employee filed a request for temporary total compensation based upon his treating doctor's office notes and the C-84 signed by his doctor. The Industrial Commission awarded temporary total benefits and the employer appealed into court. The court found the Commission erred in awarding the benefits. The court found the C-84 inconsistent with the doctor's examination notes. The C-84 and the office notes related to the same physical examination. In the C-84, the doctor opined however that the employee was temporarily and totally disabled due to his "lumbar sprain" and in the office notes, the doctor opined that the employee was temporarily and totally disabled due to his "disc bulge." (State ex rel. Genuine Parts Co. v. Indus. Comm.)
EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION NEWS
IRAs Qualify for Federal Bankruptcy Exemption. In a recent U.S. Supreme Court case, the Court decided that Individual Retirement Accounts (IRAs) can qualify for a federal Bankruptcy Code exemption. The Bankruptcy Code exemption applies to the right to receive payments from a stock bonus, pension, profit sharing, annuity or similar plan or contract on account of illness, disability, death, age or length of service; provided that the payments are only exempt to the extent that they are reasonably necessary for the debtor's support or for the support of a dependant of the debtor. The bankruptcy court had ruled that amounts held in a rollover IRA by the debtor did not qualify for this exemption because IRAs are not similar to the listed plans and because amounts in the IRA could be withdrawn by the debtor at any time. The Supreme Court disagreed and reversed the decision to the bankruptcy court.
Not all IRAs held by debtors in bankruptcy will benefit from this decision. First, some states opt out of the federal Bankruptcy Code exemptions entirely by providing their own exemptions, and other states allow the debtor to choose between the federal exemptions and state law exemptions. This decision only affects those cases in which the federal Bankruptcy Code exemptions are applicable to the debtor. Second, it is unclear how the Court's reasoning would apply to Roth IRAs. (Rousey v. Jacoway)
New HIPAA Security Rules. Group health plans have been operating under the HIPAA portability and privacy rules for some time. The portability rules restrict the preexisting condition provisions that health plans may impose and provide for certain special enrollment rights where other coverage is lost. The privacy rules restrict the disclosure of protected health information (PHI) of plan participants and beneficiaries. As of April 21, new rules became effective for large group health plans that require such plans to assure that electronic protected health information (ePHI) that is stored in company computers and transmitted over networks is secure. The new security rules have four main areas: (1) administrative safeguards, such as policies and procedures to prevent, detect, contain and correct security violations, and to identify a security officer; (2) physical safeguards, such as limiting computer access to authorized personnel and making back-up copies of electronic data; (3) technical safeguards, such as establishing passwords and encrypting or otherwise ensuring the integrity of emails; and (4) organizational safeguards, such as ensuring that a business associate (or plan sponsor) has adequate security provisions.
For purposes of the effective date of the security rules, a large health plan is one with more than $5 million in claims or premiums. The effective date of the security rules for all other health plans is April 21, 2006.
GH&R NEWS
GH&R Goes Wireless. Due to our clients' growing demand for WiFi access, the firm is proud to now offer a wireless network in our Cincinnati Office lobby and large conference rooms. Please stop by and see us!
GH&R Welcomes Kara Czanik. The firm is happy to welcome Kara Czanik to our Cincinnati office. An experienced litigator, Kara last worked with a complex commercial litigation firm in Dayton, Ohio, where she her practice covered areas including unfair competition and false advertising claims. Kara is a 2002 graduate of the University of Cincinnati College of Law where she graduated with Dean's Honors and was an active member of the Student Bar Association. In 1999, she graduated cum laude from Wittenberg University in Springfield, Ohio with her bachelor's degree in political science.
HR MATTERS from GH&R
Volume IX, Issue 96 - April 2005
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.