Home

The Ohio Patrolmen's Benevolent Association (O.P.B.A)

Young v. UPS, The Latest From the Supreme Court on Pregnancy Discrimination

The federal Pregnancy Discrimination Act specifies that Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”  The Act’s second clause specifies that employers must treat “women affected by pregnancy...the same for all employment-related purposes...as other persons not so affected but similar in their ability or inability to work.”  At issue before the United States Supreme Court in Young v. United Parcel Service, Inc., 575 U.S.___(2015), was how this second clause applies in the context of an employer’s policy that accommodates many, but not all, workers with non-pregnancy-related disabilities.  By a holding that rejected both the theories of the employee and the employer, the Supreme Court vacated the judgment of the Fourth Circuit which had dismissed the employee’s lawsuit, and remanded the case with instructions that the employee be given an opportunity to prove that UPS discriminated against her by denying her an accommodation that it had made available to other employees with work restrictions.

The plaintiff in the case, Peggy Young, worked as a part-time driver for UPS.  Her duties included picking up and delivering packages.  After several miscarriages, she became pregnant and was ordered by her doctor not to lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter.  Since UPS required workers in Young’s position to be able to lift parcels weighing up to 70 pounds, she was told that she could not work with this restriction.  As a result, Young was placed on unpaid leave and eventually lost her medical coverage.

Young then brought suit against UPS alleging that it acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction.  Young argued that there were other workers who were similar in their inability to work who received accommodations.  These employees included drivers who had become disabled on the job, those who had lost their DOT certifications, and those who suffered from disabilities covered by the Americans with Disabilities Act.  UPS argued essentially that it did not discriminate against her, as she was treated the same as all other employees who did not receive accommodation and were not included in those categories.  The District Court granted UPS summary judgment, concluding that Young did not make out a prima facie case of discrimination for reason that her condition was too different from the accommodated categories to be considered “similarly situated.”  The Fourth Circuit affirmed.

While the Supreme Court vacated and remanded the case by a 6-3 vote, it rejected Young’s claim that as long as an employer accommodates only a subset of workers with disabling conditions, pregnant workers who are similar in their ability or inability to work must receive the same treatment even if still other non-pregnant workers do not receive accommodations.  The Court expressed that such a reading gives pregnant employees an unconditional “most-favored-nation” status undeserved under the Act.  Likewise, the Court rejected UPS’ theory that the Act’s second clause does no more than define sex discrimination to include pregnancy discrimination.  The Court found that this interpretation fails for reason that such is accomplished expressly by the first clause of the Act.  The Court explained that the employer’s interpretation would essentially ignore the Act’s second clause.  Further, the Court found that adopting the employer’s interpretation would fail to carry out a key objective of the Act - overturning previous Supreme Court precedent that had upheld against a Title VII challenge a company plan that provided non-occupational sickness and accident benefits to all employees but did not provide disability-benefit payments for any absence due to pregnancy.

The Court explained that the proper method for determining violations of the Act’s second clause involves a process of shifting burdens.  A prima facie case is made by the pregnant employee showing that she sought an accommodation, that the employer did not accommodate her, and that the employer did accommodate others similar in their ability or inability to work.  The employer may then justify its refusal to accommodate by relying on legitimate non-discriminatory reasons.  If an employer offers apparently legitimate, non-discriminatory reasons for its actions, the employee may then show that such reasons are a pretext for bias.  The Court explained that an employee can reach the jury on this question by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and that the employer’s legitimate non-discriminatory reasons are not sufficiently strong.  Facts going to pretext include, according to the Court, UPS accommodating most non-pregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with these limitations.  Accordingly, this analysis at its end focuses on the impact of employer policies allowing for accommodation of non-pregnant employees.

By vacating judgment and remanding the case for further proceedings consistent with its opinion, the Court did not make a determination as to whether Young, in fact, created a genuine issue of material fact on the question of pretext to overcome summary judgment. However, it is clear that the Court’s expressed method for analyzing pregnancy discrimination cases results in pregnant employees having an easier case to make for accommodations than had been allowed by the Fourth Circuit.

 

Estate Planning Tips

Trying to deal and cope with a loss of a loved one is extremely challenging and emotionally draining in itself.  However, when you add the handling of the estate and all that can come with it, it can very well be too much for someone to handle during such a tough time in their lives.  Hopefully after reading this article, the handling of the estate process should be much simpler and easier.

Titling of accounts

Arguably one of the most important things you can do in advance is to ensure all of your accounts are titled properly.  If you are married, it usually makes sense to have all of your bank accounts held as “Joint tenants with rights of survivorship” with your spouse.  This means, that if one spouse passes away, the bank account would then be held in the surviving spouse’s name to avoid probate.  In addition to having the account held jointly, you can also add a “Transfer on Death” (TOD) or “Payable on Death” (POD).  If something happened to both you and your spouse, those accounts would then pass on to your TOD or POD (i.e., your children) and also avoid probate.  Any non-retirement account (i.e.,  brokerage accounts, bank accounts, etc.) should be titled either jointly with a TOD or POD, or both.

When it comes to any life insurance and retirement accounts, such as deferred compensation, DROP, IRAs, etc., you ALWAYS want to ensure you have both primary and contingent beneficiaries!  This again will avoid probate and ensure your assets are going to go to the proper people when you pass away.  It is very simple to update your beneficiaries and also important to know how your accounts are titled.  Too many times, we find out too late that a few accounts were missed or not titled properly; and it creates more headaches and also costs more money to get the assets to the appropriate people.

Legal Documents

In addition to titling all of your accounts properly, it is important to have your legal documents updated and in force prior to when a life-changing event happens.  These would include your Wills and Powers of Attorney.  Everyone should have a Will, as this will distribute any remaining property that has to go through probate.  It is important to remember that all of the accounts mentioned above would avoid going through probate and also avoid passing to your Will if they were titled properly.  However, anything remaining would then go through probate; and your Will would distribute the assets accordingly.

You should also make sure both you and your spouse have a Durable Power of Attorney and Health Care Power of Attorney established.  These become important in times where one of you is deemed incapacitated or incompetent.  In most cases, spouses make each other their powers of attorney so they can make the appropriate decisions on their spouse’s behalf.  It can, however, be any one of your choosing; but it’s very important that it is a well- trusted and well-known individual, as this title gives them a lot of control.

Some people want to take their legal documents a step further and create a trust.  Simply put, a trust can allow you to “control your assets from the grave” and also ensure your assets stay in your bloodline.  This would also avoid probate expenses.  Trusts can sometimes be relatively expensive to set up, so it’s important to understand what they do, and be sure that the cost justifies what you are trying to accomplish.

In summary, doing the above steps can help make the loss of a loved one less stressful and less of a burden when trying to settle the estate and final affairs.  It is also important to communicate your wishes with your spouse or other loved ones, and be sure everyone is on the same page.  Also, make sure you know where your important documents are held, and that they are in a secure place.

No one likes to talk about death, but none of us know what the future may hold; so it’s important to be prepared.  If you have further questions on any of the topics discussed, feel free to give us a call.

 

Lineweaver Financial Group
9035 Sweet Valley Drive
Valley View, OH 44125
216-520-1711
OhioRetire.com

Securities offered through Triad Advisors, member FINRA/SIPC. Advisory services offered through Lineweaver Wealth Advisors, LLC. Lineweaver Wealth Advisors is not affiliated with Triad Advisors.

This is not intended to be legal advice.  Please consult an attorney to address your specific situation.

 

Unite

We hear daily news reports of the stagnant economy, the decline of the middle class and the debate over minimum wage increases.  I believe there is a general discontent among average Americans over their existing economic conditions and particularly those in the lower socio-economic group.  The wealth gap continues to grow, opportunities for advancement continue to decline and the average American is disillusioned and frustrated by the stagnation.  The government is mired in gridlock with multi-millionaires bickering over a $.25 increase in the minimum wage.  Corporate profits soar and the stock market rises on the backs of the American worker.  As a purely anecdotal observation, it would seem not unlikely that this general American discontent will be sparked into protest and civil unrest.

“It used to be that when the U.S. economy grew, workers up and down the economic ladder saw their incomes increase, too. But over the past 25 years, the economy has grown 83 percent, after adjusting for inflation — and the typical family’s income hasn’t budged.  In that time, corporate profits doubled as a share of the economy. Workers today produce nearly twice as many goods and services per hour on the job as they did in 1989, but as a group, they get less of the nation’s economic pie.  In 81 percent of America’s counties, the median income is lower today than it was 15 years ago.”[1]

Bloomberg conducted an analysis that “compared the disclosed CEO compensation mandated by the SEC — including salary, bonus, perks, changes in pension accruals, and the value of stock-based awards — with U.S. government data on average worker pay and benefits by industry.”[2] “The AFL-CIO’s average CEO-to-worker multiple at big U.S. companies is 357.  Bloomberg’s average ratio for Standard & Poor’s 500 companies is 204; the average of the top 100 companies [that Bloomberg studied] was 495.  That is, CEOs of the companies on that table averaged 495 times the income of nonsupervisory workers in their industries.”[3] The companies that Bloomberg studied were all publicly traded companies (as compared to privately held companies where owners receive the profits).  For example, depending on the average ratio used, if the average worker in a particular industry made $50,000 per year, the CEOs of that industry were paid $17,850,000, according to the AFL-CIO, or $10,200,000, according to Bloomberg.  A ridiculous disparity exists between the rank-and-file-worker pay and CEO pay.  “Peter Drucker, the celebrated management theorist, certainly thought the CEO-to-rank-and-file multiple mattered. Starting with a 1977 article and until his death in 2005, Drucker considered 25-to-1 or even 20-to-1 the appropriate limit. Beyond that, he indicated, it’s bad for business.”[4] In Drucker’s view, the excessively high CEO-to-employee ratio undermines teamwork and promotes a winner-takes-all culture.[5]

Further troubling is the gap between worker pay and company revenue based on productivity.  In an interview with Jan W. Rivkin, an economist and senior-associate Dean for research at Harvard Business School, the question was asked about the decline of unions and the affect on the middle class.  Rivkin replied, “From the end of WWII until the 1970s productivity in the U.S. and median wages grew in lockstep. But from the late 1970s until today we've seen a divergence, with productivity growing faster than wages. The divergence indicates that companies and the people who own and run them are doing much better than the people who work at the companies.  If the U.S. economy was healthy and competitive, we'd see firms able to do two things: win in the global marketplace and lift the living standards of the average American. Large businesses and the people who run them, and invest in them, are thriving but working and middle-class Americans are struggling — as are many small businesses.[6] When asked what role the decline of collective bargaining played in creating the gap, Rivkin replied that there are several causes, one of which “is shifts in institutions and politics and bargaining power, which is embodied in the decline in collective bargaining and the weakening of labor unions. There’s no question that that is part of the story.”[7]

In 1983, the CEO to worker gap was 46-to1.[8] The average two-parent American family worked more hours – 26 percent more hours – in 2009 than in 1973; however, earned only 23 percent more in pay in 2009 than it did in 1973, after adjusting for inflation.[9] “Take away the extra time on the job and wages haven’t gone up at all for the median family in more than 40 years.”[10]

“In 1983, the first year in which comparable union membership data are available, 20 percent of employees were unionized.  By 1990, 16 percent of employees were unionized. The unionized share currently stands at 11 percent. This prolonged decline has been driven by a sharp drop in private sector unionization rates. Today, only 7 percent of private sector workers are union members.”[11]

According to Forbes Magazine, “the decline of unions and worker bargaining power has hurt the middle class more than they know.”[12] Forbes’ study showed that the middle class share of income almost mirrors the decline of union membership and that there is a high correlation between union membership and middle class income.[13] Forbes noted that, “There are of course other factors that affected middle class income but the decline of unions and their wages was certainly a big factor. The long term goal of the corporations to get rid of unions was part of a larger goal of reducing labor costs.  The economist Joseph Stieglitz has asserted that, ‘strong unions have helped reduce inequality, whereas weaker unions have made it easier for CEOS, sometimes working with market forces that they have helped shape, to increase it. The decline in unionization since World War II in the United States has been associated with a pronounced rise in income and wealth inequality.’”[14]

Yet, 93% of private sector employees, through largely their own choice, have no bargaining power to demand better wages and benefits.  Consider that million and billion Dollar corporations have teams of the brightest lawyers in the Country ready to suppress any worker demands and abolish a united workforce.  Imagine what bargaining power a lone employee making $10.00 an hour has to demand better wages from his/her employer.  That employee is likely to be shown the exit door.  It is time to swing the pendulum back in favor of the working American.

As a public employee, you may ask, “why do I care?”  1) The “Right-to-Work” trend in the United States is specifically designed to reduce the bargaining power of public sector labor associations just as the government and corporations have stripped private sector employees of bargaining power; 2) the decline of the middle-class and the tax Dollars associated with it will reduce local government revenues, which public sector wages are based on; 3) the future of civil unrest will continue to grow and as Police Officers, you are on the front lines.  If the anti-union advocates are successful in stripping public sector bargaining rights, the same decline in worker pay, benefits and job security will surely ensue.

It matters little whether you are Republican, Democrat, independent, conservative, liberal or of any other political philosophy, the present reality is that the wave of worker suppression affects every average American.  The only way to maintain the present bargaining rights of public sector employees and to reassert the rights of private sector employee is to stand united.  Police Officers, Firefighters and all public employees must speak with one voice and stand against the private interest groups and politicians seeking to strip our rights.  Private sector employees, your spouses, neighbors, and friends, should be encouraged to work together to improve their terms and conditions of employment.

Prophetically, John F. Kennedy said 55 years ago, “We are going to have over 300 million people living in this country in the year 2000. Many of them will live in this state. We are going to have to make sure that we pass on to our children a country which is using natural resources given to us by the Lord to the maximum; that every drop of water that flows to the ocean first serves a useful and beneficial purpose; that the resources of the land are used, whether it is agriculture or whether it is oil or minerals; that we move ahead here in the West and move ahead here in the United States. *** Pittsburgh, Wyoming, Montana, Wisconsin are all tied together. A rising tide lifts all the boats. If we are moving ahead here in the West, if we are moving ahead in agriculture, if we are moving ahead in industry, if we have an administration that looks ahead, then the country prospers. But if one section of the country is strangled, if one section of the country is standing still, then sooner or later a dropping tide drops all the boats, whether the boats are in Boston or whether they are in this community.”[15]


[1] Tankersley, Jim, Why the Middle Class Is Lost, The Washington Post, December 12, 2014.

[2] Smith, Elliott Blair and Phil Kuntz, Disclosed: The Pay Gap Between CEOs and Employees, Bloomberg Business, May 2, 2013.

[3] Id.

[4] Id.

[5] Id.

[6] White, Gillian S., Why the Gap Between Worker Pay and Productivity Is So Problematic, The Atlantic, February 25, 2015.

[7] Id.

[8] Wong, Vanessa, Top CEOs Make 331 Times the Average Worker. Does Anyone Care?, Bloomberg Business, April 18, 2014.

[9] Tankersley, Jim, The Devalued American Worker, The Washington Post, December 12, 2014.

[10] Id.

[11] Meyer, Jared, Why 78 Million Millennials Are Choosing Non-Union Jobs, The Fiscal Times, April 14, 2015.

[12] Collins, Mike, The Decline Of Unions Is A Middle Class Problem, Forbes, March 19, 2015.

[13] Id.

[14] Id.

[15] Senator John F. Kennedy in Cheyenne, Wyoming, September 23, 1960 – Lazere, Donald, at: http://historynewsnetwork.org/article/73227#sthash.ac93JuuV.dpuf

 

A Message from the Executive Director April 2015


OPBA Continues to work at State Level 

Finally it appears the winter is ending and spring is near.  The OPBA has been hard at work and continues to fight for its members at the State level.

On February 27th I along with OPBA Attorneys Joe Hegedus, Dan Leffler and Andy Douglas were invited to Columbus to speak with Dr. Reginald Wilkinson.  Dr. Wilkinson is a member of the commission formed by the Attorney General Mike DeWine’s Office.  The mission of the commission is to review police training standards in Ohio.  This review by the commission starts at the police academy level and continues for active officers and deputies.  The OPBA’s representatives stressed to Dr. Wilkinson that the commission must not create “unfunded mandates.”  The OPBA believes that training for all Police Officers, Sheriff’s Deputies, Corrections Officers and Dispatchers is important, but with local government funding continuing to be cut there must be a funding mechanism in place.  The OPBA will continue to monitor this commission.


The OPBA has also been mindful of our members’ interests in the Ohio Pension Systems.  In fact an OPBA member George Sakellakis from the Brook Park Police Department is running for Trustee of The Ohio Police and Fire Pension Board active police officer position.  I have come to know George from his attendance at OPBA meetings.  George is currently a Police Sergeant within his Department.


George has military experience in the Army and also has three college degrees, including a law degree.  George is a practicing attorney and holds law licenses in Ohio and Washington D.C. The OPBA Executive Board voted in February to endorse George Sakellakis for Trustee to the OP & F Board.  Good Luck George!


I am excited to announce that the OPBA will have three family baseball outings throughout the State.  Cleveland, Cincinnati and Toledo will be the venues.


Please plan to attend Police Week activities.  National Police Week begins May 10th in Washington D.C.  The Greater Cleveland Peace Officers Memorial Society’s 30th Anniversary Commemoration takes place May 14th – 17th.  Never forget to “Honor Our Fallen”.


It is that time of year to remind our membership that the OPBA policy is not to release any information to any company or vendor.  If a company has information that they wish to send our membership they must use our mail house and incur all the costs of such mailings.  There is one free benefit, a $4000 Accidental Death and Dismemberment policy, that is currently provided by American Income Life, (AIL).  Members in good standing do not need to do anything to receive this benefit.  If you choose to return the enclosed card from AIL they will contact you to list your beneficiary and to also present other insurance or investment products.  This information is in the cover letter.  They have assisted at least 6 families over the last 6+ years of being associated with the OPBA.  They have similar relationships with other police and labor unions in Ohio.


Stay Safe!

 

Law Enforcement Bulletin April 2015

Ohio Attorney General's Law Enforcement Bulletin

April 2015

Read More Articles View and Print a PDF

Close Call Reporting: Why it’s Important for Officer Safety

LEB April 2015

Close Call reporting not only prevents injury, but can maintain a climate of safety, give law enforcement an open forum to discuss concerns, and raise awareness of issues affecting safety.


Search & Seizure of Vehicles (Mistakes of Law and Investigatory Stops): Heien v. North Carolina

As a peace officer, you’re expected to know the law of your jurisdiction, but laws are not always clear. They can be confusing and contradictory. When that happens, peace officers try to make reasonable interpretations of what the law means.

Proper Protocol (Search Warrants & State Databases): State of Ohio v. Myers

Question: Do you need a warrant to search a State database? Quick Answer: A warrant is not needed if the statute or code provides a method of access for law enforcement and you comply with those requirements.

Search & Seizure (Preemptive Seizure of Property Without Search Warrant): State of Ohio v. Welch

The most important thing that occurred in this case was that the officers obtained a warrant, in a reasonable time period after seizure, before accessing the evidence. It may have been a different ruling by the court if the property had been searched prior to obtaining the warrant.

 

Vote for George Sakellakis

My name is George Sakellakis.  I am a sergeant at the Brook Park police department, where I am in my thirteenth year.  With my prior PERS time (Cleveland EMS) and military time (U.S. Army), I’ll be retiring in the next ten years or so.  I am running for trustee of the Ohio Police and Fire Pension Fund’s Board of Trustees active police officer position because I am worried about our retirement system.  For the last few years, our pension has been under attack.  Instead of waiting for some recently-enacted changes to make the fund stronger as required by law, politics has mandated these changes into unrealistic timelines, forcing active and retired officers to absorb high contributions and less benefits.  Our health care fund has been raided and depleted to the point that a retiree has to work in retirement just to pay for their pension fund-sponsored health insurance (as a retiree how much they’re paying; you won’t be happy).  Politicians use the pension to grandstand themselves into media relevancy.  Enough is enough!

 I believe the strength of our pension attracts and retains true professionals to do a job that few want to do, and even fewer can do successfully.  The mold of police officer that we want on our shifts and on our streets is directly correlative to the degree that officers feel someone has their backs.  We are a special breed, and I believe that after spending a career wading through the crap (both literally and figuratively), the politics, and the nightmares that make up our beloved calling, a basic, comfortable retirement is not too much to ask.

I intend to stand for a strong pension.  This means making sound decisions in the best interests of our members, building positive relationships with state officials that oversee our fund and make its associated law, and standing tough in the face of political attack when necessary.  The Board has recently seen a major increase in their powers; they can now do with a simple vote what before required legislation.  There has never been a more important Trustee election.

The OPBA is an outstanding organization that truly has their members’ backs, and I am extremely honored to receive their endorsement.  It is imperative that when you receive your ballot in the first week of May, you will vote for someone you can trust.  I respectfully ask for your vote.