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Mark Volcheck

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.


Hauser v. City of Dayton: The Ohio Supreme Court Revisits Personal Liability for Supervisors

Personal liability is always a concern for law enforcement personnel.  In addition to causes of action at common law, plaintiffs enjoy the protections of a myriad of state and federal statutes upon which claims can be made against political subdivisions and/or its employees.  While such suits that are brought against law enforcement personnel are typically brought by outside citizens, they can pit officer against officer.  In Hauser v. City of Dayton Police Dep’t, 2014 Ohio 3636, 2014 Ohio Lexis 2040 (2014), the Ohio Supreme Court addressed the issue of personal liability for managers and supervisors of political subdivisions upon claims made under R.C. 4112.02(A) of the state’s statute against employment discrimination. This section generally prohibits employers from discriminating against persons with respect to any matter related to employment. By a vote of four to three, the Court distinguished past precedent and held that managers and supervisors of political subdivisions are not subject to personal liability under such section.

The issue of personal liability for managers and supervisors under R.C. 4112.02(A) was previously addressed by the Ohio Supreme Court in the case of Genaro v. Central Transport, Inc. et al, 84 Ohio St. 3d 293, 703 N.E.2d 782 (1999).  In that case, arising out of the private sector, the Court held that supervisors and managers may, in fact, be held personally liable for unlawful discriminatory acts committed by them in violation of R.C. Chapter 4112.  The Court reasoned that such holding follows from the broad definitions of “employer” and “person” under the act.  The term "employer" under R.C. 4112.01(A)(2) is defined as "any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer." Further, a "person" under the act is defined by R.C. 4112.01(A)(1) as including "one or more individuals, * * * any owner, lessor, assignor, * * * agent, [and] employee." The Court also reasoned that such result follows from consideration of R.C. 4112.08, which mandates that “this chapter [4112] shall be construed liberally for the accomplishment of its purposes * * *.”

The Hauser case involves a claim of a Dayton police officer, Anita Hauser, against her department and Major E. Mitchell Davis.  Among other claims, Hauser averred that the department and Davis discriminated against her on the basis of age and sex in violation of R.C. 4112.02(A).  Specifically, Hauser alleged that the department and Davis took employment actions against her that they did not take against those who were not in her statutorily protected class by imposing certain employment conditions, withholding her wages, subjecting her to “frivolous” investigations, and denying her opportunities for career advancement.

At the trial and appellate court, Davis argued that he was entitled to summary judgment on the state discrimination claim on the basis of immunity.  R.C. 2744.03(A)(6) provides that an employee of a political subdivision is immune from tort liability with three exceptions.  At issue in Hauser is the R.C. 2744.03(A)(6)(c) exception, which removes immunity if “[c]ivil liability is expressly imposed upon the employee by a section of the Revised Code.”  Citing Genaro and relying on such exception to immunity, the Second District concluded that “civil liability is expressly imposed upon managers or supervisors, such as Davis, under R.C.  4112.01(A)(2) for their individual violations of R.C. 4112.02(A).”  Hauser v. City of Dayton Police Dep’t., 2013-Ohio-11, 986 N.E.2d 523, ¶28 (2d Dist.).

The Ohio Supreme Court reversed the Second District by vote of four to three.  Writing for the plurality, Justice French analogized the definition of employer in R.C. 4112.01 with the United States Supreme Court’s construction of the definition of employer under the National Labor Relations Act in Packard Motor Car Co v. Natl. Labor Relations Bd., 330 U.S. 485, 488, 67 St. Ct. 789, 91 L.Ed. 1040 (1947).  In Packard, the Court explained that the definition of employer under the NLRA was to incorporate ‘the ancient maxim of the common law, respondeat superior, by which a principal is made liable for the tortious acts of his agent and the master for the wrongful acts of his servants.” Id. Since Ohio’s definition of employer is similar to that of the NLRA and respondeat superior liability does not simultaneously create an express cause of action against individual agents and employees of the employer, Justice French reasoned that R.C. 4112.01(A)(2) cannot be read to expressly impose liability on political subdivision employees.  The decision also noted that this construction of R.C. 4112.01(A)(2) comported with almost every federal circuit in their interpretation of employer in the context of Title VII cases.

The dissenters argued that the Second District’s judgment should have been sustained by the broad definition of employer and the Court’s holding in Genaro. The plurality opinion acknowledges that it calls the Genaro majority’s reasoning into question, but distinguishes Genaro on the basis that Genaro did not squarely address the immunity exception in R.C. 2744.03(A)(6)(c), as such immunity does not apply to employees in the private sector.  Further, the plurality opinion by dicta acknowledges that personal liability can apply to managers and supervisors under other sections of the law such as those that specify it unlawful for “any person” to aid or abet an unlawful discriminatory action.  See e.g., R.C. 4117.02(J).  For the dissenters, this is a distinction without a difference.

While it might seem evident that an employee is not an employer and therefore not subject to personal liability under the sections at issue in Hauser, the statute’s broad definition of employer clouded this question to the extent that a multitude of cases and years and years of litigation were necessary to find the answer.  At the end of this road, the two decisions that survive, Genaro and Hauser, seemingly stand at odds with each other.  The potential for personal liability, as evidenced by these cases, highlights the importance of a political subdivision’s separate duty under Ohio law to defend and indemnify its employees.  While there are limitations to such duty, it provides needed security for employees in an unpredictable and potentially costly legal landscape.






By:  Mark Volcheck, Esq.

An employer’s attempt to utilize part-time workers to perform work traditionally done by full-time bargaining unit workers can be the source of significant tension and dispute.  Full-time bargaining units generally take the position that their work and potential for overtime should be protected from being contracted out to lesser paid non-union employees.  Among safety forces, full-time units additionally oppose the introduction of part-time employees on the basis of officer safety, as similarly experienced and dedicated personnel are vital to confronting the profession’s dangers.  In the case of In re City of Green, SERB No. 14-01, 2014 OH SERB LEXIS 1 (2/20/14), the State Employment Relations Board held that the City of Green committed unfair labor practices by unilaterally reassigning bargaining unit work performed exclusively by full-time firefighters to part-time non-bargaining unit firefighters and by refusing to bargain collectively with the Union over such reassignment.  The Board’s holding effectively warns employers that any intention to reassign the work of a full-time safety service bargaining unit to part-time employees must be subjected to the procedural protections of fact-finding and conciliation.

Prior to June of 2001, the collective bargaining agreement between the City of Green and its full-time firefighter bargaining unit referenced part-time, non-bargaining unit employees, but as the City moved to an exclusively full-time firefighter staff, the parties agreed to delete part-time references in the agreement.  Since June of 2001, the City’s Fire Department has been staffed exclusively with full-time firefighters/paramedics (firefighters) and the emergency response and related safety-service work performed in the City’s Fire Division has been performed exclusively by full-time bargaining unit members.

In 2010 and 2011, the parties negotiated a successor collective bargaining agreement.  During the first bargaining session for a successor agreement, the City presented the Union with a proposal to eliminate a minimum staffing clause in the collective bargaining agreement that required the City’s Fire Department to be staffed each shift by ten (10) on-duty, full-time firefighters.  Additionally, at this session, the City handed the Union a “Notice of Intent” wherein the City announced its intent “to establish and utilize part-time firefighter/medics to assist in avoiding overtime, covering time off, meeting its service needs and performing duties that it otherwise determines necessary.”

The parties proceeded to fact-finding where the City proposed to eliminate the minimum staffing clause and proposed to add language allowing the City to establish part-time firefighter positions.  The fact-finder rejected such proposal.  At conciliation, the City abandoned such proposals.  Instead, it proposed that minimum full-time staffing be reduced from ten to nine under certain circumstances.  The parties agreed to such language in mediation prior to the conciliation hearing.  Thus, the successor agreement included no language allowing the City to use part-time personnel.

After the successor agreement was executed, the Fire Chief issued a memorandum announcing that the City “will begin using part-time fire medics to supplement (their) response shift staffing in the very near future. . . .”  The Union requested to bargain the issue, but the City refused.  Approximately (3) months later, the City hired part-time firefighters to perform emergency response work.  Thereafter, the Union filed an unfair labor practice charge with SERB alleging that such refusal to bargain and unilateral action constituted violations of R.C. 4117.11(A)(1)&(5).

The Board’s analysis finding the unfair labor practices is plain and clear-cut.  Pursuant to R.C. 4117.08(A), all matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement are subject to collective bargaining between the public employer and the exclusive representative.  Citing an extensive trail of SERB and court precedent, the Board reiterated its consistently held ruling that “the reassignment of work previously performed by members of a bargaining unit to persons outside the unit is a mandatory subject for collective bargaining under R.C. 4117.08(A) & (C).”  In re City of Green, 2014 OH SERB LEXIS 1, 10-11; quoting Lorain City School Dist. Bd. of Educ. v. State Employment Relations Board, 40 Ohio St.3d 257, 262 (1988).  Accordingly, the City’s unilateral reassignment of bargaining unit work and refusal to bargain over such reassignment constituted unfair labor practices.

As a remedy, the Board ordered that the City return to the status quo ante the bargaining unit work of full-time firefighters in the City of Green Fire Division prior to the City’s hiring of part-time firefighters.  By such order, the City must return to utilizing only full-time bargaining unit employees to perform the work of the bargaining unit.  Additionally, SERB ordered that the City of Green cease and desist from interfering with, restraining or coercing employees in the exercise of their rights by such unfair labor practices.  R.C. 4117.11(A)(1)&(5).

The Board made a point in its decision to refute the City’s argument that this case renders the management rights set forth in R.C. 4117.08(C) meaningless.  However, the Board’s decision does place the issue of reassignment at the negotiating table.  If the subject is brought up at the table as part of a negotiation for a successor agreement or initial agreement, the matter will ultimately be decided by a conciliator if the parties are unable to reach agreement.  If it is brought up as a proposal by the employer during mid-term bargaining, such can only be imposed by the employer after bargaining to impasse in the extraordinarily rare circumstance where such immediate action is necessary due to: (1) exigent circumstances unforeseen at the time of negotiations or (2) legislative action taken by a higher level legislative body after the agreement became effective that requires a change to conform to the statutes.  In re City of Toledo, SERB No. 11-01, 2011 OH SERB LEXIS 22.  It is most difficult to conceive a scenario where either of those conditions can be met relative to the subject of reassigning bargaining unit work.

The heavy-handed tactics of the City to impose its own sense of industrial justice irrespective of its duty to bargain under the Ohio Collective Bargaining Act was deservedly shot down by the Board in City of Green.  Such decision highlights the importance of the Act’s protections and the necessity of each bargaining committee to be prepared to successfully negotiate and/or block reassignment of work proposals at the table.

Last Updated (Saturday, 07 June 2014 13:42)


The SERB 2013 Report on Health Insurance Costs

The Research and Training Section of the State Employment Relations Board has released its annual report on the cost of health insurance in Ohio’s public sector.  The 2013 report analyzes health care surveys completed by 1,226 public employers in the state representing about 394,388 employees.  Such amounts to a 92.5% employer participation rate.  The survey answers are representative of public sector medical insurance plans in effect on January 1, 2013.  The report is necessary reading for negotiating committee members as it offers useful comparative data and background information for numerous healthcare issues.

The statewide average for an employee’s share of the medical and prescription drug premium is 11.2% for single coverage and 12.2% for family coverage. In terms of actual dollars and cents, employees are statewide paying $59 per month for single coverage and $171 per month for family coverage.  Among political subdivisions, employees of townships pay the least amount at approximately 6.3% of the premium for single coverage and 6.4% for family coverage.  This translates into township employees paying $28 per month for single coverage and $84 per month for family coverage.  Employees in cities are paying 9.6% for single coverage and 9.8% for family coverage.   This amounts to city employees paying $49 per month for single coverage and $135 per month for family coverage.  Employees of counties are paying 13.3% of the premium for single coverage and 14.4% of the premium for family coverage.  These percentages require county employees with single coverage to pay $72 per month for single coverage and $217 per month for family coverage.

SERB also analyzes employee contributions by eight geographical regions in the state.  Employees in the Dayton region pay the greatest share for medical and prescription drug insurance.  Employees with single coverage in the Dayton region are paying 13.2% of the premium while employees with family coverage pay 14.4% of the premium.  These employees are paying $69 per month for single coverage and $200 per month for family coverage.  The employee share of the premium is least in the Warren/Youngstown region with employees contributing 6.9% of the premium for single coverage and 6.8% of the premium for family coverage.  This equates to $36 per month for single coverage and $102 per month for family coverage.

It is also interesting to examine SERB’s report on medical plan design.  The report identifies the number of medical plans by deductible amounts.  Statewide, 29.7% of medical plans have deductibles for single in-network coverage in the amount of $100 or less, while 26.8% of the plans have deductibles for such coverage in an amount between $125 and $400.  23.0% of the plans have deductibles for such coverage in an amount of $1,200 or greater.  For in-network family coverage, 28.2% of plans statewide have deductibles in the amount of $200 or less, while 27.2% of the plans have deductibles between $250 and $800.  23.7% of the plans have deductibles for such coverage in an amount of $2,400 or greater.

After the deductible is reached, the percentage of costs paid by employees until they reach their out-of-pocket maximum amount is called co-insurance.  33.4% of plans statewide for in-network coverage do not require an employee co-insurance contribution while 32.5% of plans require a maximum employee co-insurance share of 10%.  Only 2.6% of plans require a maximum employee co-insurance share over 20%.  The statewide median out-of-pocket maximum amount for in-network coverage is $1,350 for single coverage and $2,600 for family coverage.

The SERB report also provides plan data for prescription drug costs.  The statewide median co-pay amounts for a 30 day drug supply under the “three tier” option most common in Ohio are as follows:  $10 for generic; $25 for brand and $40 for non-formulary brand.   SERB notes, as explained herein, that the employee premium contribution for prescription drug coverage is figured into the employee’s medical insurance premium contribution in 87.5% of reporting jurisdictions.

While the employee contribution to health care costs is always of prime concern in labor negotiations, it is also useful to look at the history of premium costs for medical and prescription drug coverage.  For 2013, the average premium for medical and prescription drug coverage statewide is $520 for single coverage and $1,370 for family coverage.  This represents a 2.8% increase for single coverage and a 2.3% increase for family coverage in comparison to 2012.  SERB shows in its report that from 1993 through 1999, premium increases were modest at around 4% per year.  From 2000 through 2005, annual increases in premium amounts were close to 15%.  Increases have moderated since then, as the increases from 2006 through 2013 have averaged only 4.8% per year.

The report also touches on dental and vision insurance.  When dental insurance is carved out from medical and prescription drug coverage and employees contribute to the premium, employees statewide are paying $5.00 per month for single coverage and $13.98 per month for family coverage.   The majority of dental plans statewide have annual maximums of between $1,000 and $1,500.    When vision insurance is carved out and an employee is required to contribute, the employee is statewide paying $2.00 per month for single coverage and $5.35 per month for family coverage.

Opt-out provisions are often discussed by employees in anticipation of negotiations.  Under these provisions, employees are paid by the employer for not enrolling in the employer’s health insurance plan.  According to the SERB report, opt-out provisions are offered statewide in 43.9% of jurisdictions.  The average incentive payment for an employee opting-out of single coverage is $1,344 per year while the average incentive payment for an employee to opt-out of family coverage is $2,048 per year.

High Deductible Health Plans now make up 21.0% of the plans across the state.  In 2012, such made up 22.3% of plans statewide, compared to 17% in 2011.  When such plans are offered in conjunction with a Health Savings Account or Health Reimbursement Arrangement, 49.3% of employers annually contribute to the account of single coverage employees in an amount between $1,000 and $1,999.  12.3% of employers annually contribute to such accounts in an amount over $2,000, while 38.4% of employers contribute less than $1,000.  For family coverage employees, 41.6% of employers annually contribute to such accounts in an amount between $2,000 and $3,499.  16.4% of employers annually contribute to such accounts in an amount of $3,500 or more, while 42% of employers contribute less than $2,000.

I wrote a similar analysis for Police Beat of SERB’s 2012 report on the cost of health insurance in Ohio’s public sector.  A comparison of the 2012 report with the 2013 report does not evidence any worrisome change in benefits and costs for employees or employers.  While we cannot control the employer’s objectives at the table, the SERB report on healthcare provides a tool to measure the reasonableness of both our position and the employer’s position relative to external comparability.  It is advisable to check out the SERB website to review the report and gain some statewide perspective on the specific issues that are relevant to your negotiations.


The Statutory Considerations For Making The Case At Hearing

Fact-finders and conciliators are not known to exclude evidence from hearings.  Generally, the neutrals accept all of the evidence and judge how much weight, if any, to give to the testimony or documents.  A starting point for determining such weight is a review of the statutory factors identified for a neutral’s consideration in Ohio’s Collective Bargaining Act.  For Union members new to the negotiating process and veteran negotiators alike, it is beneficial to review the statutory considerations that neutrals apply to each party’s case so that your unit can be best equipped to make a persuasive argument at hearing.

R.C. 4117.14 dictates that for both fact-finding and conciliation the neutral shall take into consideration the following factors:

(a) Past collectively bargained agreements, if any, between the parties;

(b)  Comparison for the issues submitted to final offer settlement relative to the employees in the bargaining unit involved with those issues related to other public and private employees doing comparable work, giving consideration to factors peculiar to the area and classification involved;

(c)  The interests and welfare of the public, the ability of the public employer to finance and administer the issues proposed, and the effect of the adjustments on the normal standard of public service;

(d)  The lawful authority of the public employer;

(e)  The stipulations of the parties;

(f)  Such other factors, not confined to those listed in this section, which are normally or traditionally taken into consideration in the determination of the issues submitted to final offer settlement through voluntary collective bargaining, mediation, fact-finding, or other impasse resolution procedures in the public service or in private employment.

A review of these factors explains the typical case put on by either side’s advocates.  The relevancy of past collective bargaining agreements goes to various issues from arguing in favor of maintaining long-standing provisions to arguing customary wage increases.  This factor pertains to both economic and non-economic factors and is especially important to parties with mature collective bargaining agreements.

The statutory guideline on the comparison of issues speaks to the comparability factor for which we are all familiar.  Interestingly, in addition to identifying work, geography, and classification as measures of comparability, the statute also identifies public and private employees.  Since there really are no comparable private employees for law enforcement to compare itself, this consideration is typically restricted to public employees for OPBA negotiations.  The rather general identification of the comparability factor leaves ample room for argument between the parties on relevant comparables.  As experienced negotiators are aware, it is not uncommon that a dispute over comparables lingers even for parties with long-standing bargaining relationships.

A neutral’s assessment of the financial condition of a public entity is framed by the statutory guidelines as the ability of the employer to “finance and administer” the issues proposed.  This rather broad guideline does not offer specific financial measurements and results in differing interpretations and conclusions among neutrals and advocates even when everyone can agree on the public entity’s numbers.  Also to be considered, whether related to financial proposals or operational proposals, are the interests and welfare of the public and the effect of the adjustments on the normal standard of public service.

Finally, the statutory guidelines provide a general provision that neutrals consider factors “normally or traditionally” taken into consideration through voluntary collective bargaining, mediation, fact-finding or other impasse resolution procedures in the public service or in private employment.  This provision acknowledges the traditions and customs of the collective bargaining relationship in the public and private sectors prior to the 1984 Act and permits the parties to present particular items of evidence to the neutral even when the relevance is not otherwise directly related to an expressed statutory consideration.  This factor would also include macro economic considerations traditionally considered in labor negotiations.

It is evident that the statutory considerations for neutrals at fact-finding and conciliation are general and susceptible to various interpretations, methods of proof, and judgments. Still, before a negotiating team settles on a position or strategy to make its case, a double check of the statutory guidelines is always helpful.  This review can alert committees of losing arguments and, at the least, help contextualize arguments to show compatibility with the statutory guidelines.

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