Business Agent

The Americans with Disabilities Act (ADA)

By:  Jeff Perry, Business Agent

A quick review and why it’s important to you.

The ADA was signed into law on July 26, 1990 by President George Bush.  It was meant to allow those with a disability to have an equal opportunity to work and support them with the help of a reasonable accommodation(s).  However, the courts didn’t read the law as it was intended.

Several Supreme Court cases put huge limitations on the ADA goals.  In Sutton v. United Airlines, 527 U.S. 471 (1999), they ruled that an employee wasn’t disabled if their treatment limited or controlled their medical condition.  Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) changed the requirement from a limitation on one portion of the job to a number of functions normally required to live a normal life.  This changed the requirement from proving a disability was present to proving your disability couldn’t be adequately treated so that you couldn’t perform normal tasks of regular living.

Hopefully nobody you know has a disability and this law will have no impact upon you directly, however; in this day and age, that would be fairly rare to be the case for long.

When an employee discovers they have some mental or physical problem they go to their doctor to try to get better and take off work with their sick leave if needed.  However, when the problem is more chronic then the flu or a cold, employees typically would request Family and Medical Leave Act (FMLA) time when they need time off work for treatment.  Doing so would keep the Employer from using the time off as an excuse to discipline an employee for using too much sick leave.

Many employers require employees to use any earned time off prior to using unpaid FMLA time.  Either way, FMLA is limited to twelve weeks a year.  If an employee needs more time off, they may need to request a reasonable accommodation under the ADA.  In addition, an employee may need a reasonable accommodation to work so they can avoid or minimize the time off work due to their disability.

If you have earned time you can use, few employers would have a problem with letting their employees use it due to their needs.  However, a lot of employers do have a problem letting their employees have time off when they don’t have any time off.  The way the law was interpreted by the Supreme Court left little chance of help to employees.

In 2009, President George W. Bush signed a law amending the ADA back to his father’s original intent.  In doing so, the case law on the ADA no longer is relevant.  Now there are three types of reasonable accommodation that would cause an Employer to change the work area or procedure.

(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

(iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

An accommodation is reasonable if it’s both “plausible and feasible.”  The accomodation can include making areas accessible, modified work schedules, providing readers and interpreters and reassignment to a vacant position.  Of course, the accommodation must be balanced against the hardship it would cause the employer.

Undue hardship refers not only to the financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.

Needless to say the ADA must be looked at on a case-by-case basis.  It’s good to know that there are laws to protect you should the need arise.  However, if you think you need such assistance you should contact your OPBA representative to help guild you.



Public Perceptions

People that police were hired to serve and protect have generally shifted their views of police negatively as of late.  Most of the downward shift is caused by their lack of knowledge and understanding.  Of course that is exploited by the press as they over dramatize incidents to make proper police work look improper.  None of this is new.  It just happened to gain more traction than usual.

Why did it gain more traction than in the past?  One of the main reasons is the videos of some of the conflicts.  The videos tend to start after the conflict begins, thus missing what is often very relevant information.  It leaves the viewers in the dark over why the officers are even taking any action.  This won’t change until every officer is wearing a video camera as part of their uniforms.

Another reason is not so new.  The general public just doesn’t understand how they should act when confronted by police.  It seems to me to be a growing problem that isn’t being addressed properly until reviewed by those who are properly informed.

I know I taught my children to listen and comply with police orders.  I don’t think that is happening in most households.  Certainly many children in the lower income areas are not being taught to comply.  Those are the areas where many of those involved are raised.  Given the number of people who have actively protested and spoken out against officers who were properly performing their jobs, it seems that many either were never told of the need to comply with police orders or they just never learned.

This could be an easy fix.  Given how much teachers are specifically told exactly what to teach, they should just add teaching how to comply with police orders to the list.  It would have a dramatic impact in the long run.  It would also offer a great opportunity for officers to demonstrate when the officers give and order, how to comply and what could happen if they don’t comply. Until then, be careful to remember you will probably be caught on camera when you work.

On a related note, there has been a debate on the educational requirements for police for quite a while.  The idea is understandable since police need to know so much and act so fast.  Basically, police need to have the knowledge of lawyers with handcuffs and guns. Of course the police academy isn’t quite as long as the seven years of college required for attorneys, and it has to cover guns and defensive techniques,… etc.

College degrees have never been a normal requirement to be a police officer.  In 2007, the last year a survey was conducted, only 1% of police departments required a four year degree, 9% wanted a two year degree and 6% demanded some college.

Despite how few departments require college, around 36% of officers aged twenty-five and older have at least a bachelor’s degree.  That is over a tenfold increase in the last forty-five years.

Critics claim that college requirements make it much more difficult to recruit minority officers, a constant image problem in larger cities.   Of course many of those same critics feel that the officers should be better educated.  It is quite ironic that the critics can’t even agree with themselves.

Statistically, those officers with degrees were much less likely to be disciplined.  Despite the trend, New Orleans recently relaxed their requirements.  They are trying to increase the force by almost five hundred officers and felt the requirement was eliminating too many potential candidates.    However, I would be surprised if the increase doesn’t continue.

I would also like to congratulate the officers in Brimfield Township.  They have been fighting with their former Chief for years.  He would constantly target officers who stood up to him.  Many were fired and had to fight to get their jobs back.  Many others just left to escape his bizarre tactics and crazy antics.  The Trustees thought he was doing a good job primarily because of all of the friends he made for his department on Facebook.

He retired under the cloud of health issues.  It probably had a lot more to do with the lawsuit filed against him.  From the sound of things, one or more may be on the way.



The SERB Wage Increase Breakdown

The economic news we are hearing every day has been much better than what we were hearing during 2009. The economy is still growing in the USA, but not real fast.  Finally, the predictions of a healthy economy are almost here!  Healthy economies tend to provide healthy wage increases.

There are many who have been living in fear that the economy is heading into another recession due to the economy slowing down.   Some point to the housing market as a disappointment.  Others complain that the new jobs are mostly service industry and don’t pay enough. Still others say that there are still too many under employed, those working part-time that want full-time.

All are true to one degree or another.  Most of the jobs have been in the service sector, but not all of them.  In fact Ohio has been improving in manufacturing and business jobs for quite a while.  Further, the people that may have given up on job hunting for a while are starting to come back into the job market with some success.

However, the economy in Ohio is doing better than most of the US and the rest of the world.  At this time the unemployment rate is down to 5.5%, which is about a half point lower than the US as a whole.  The State has a budget surplus of a couple of billion dollars.  They have pretty much taken everything from the local governments that they could, so there is only an upside left.  The demand for specialized workers is still high enough that people are moving to the State to find jobs and are indeed finding them.

The various branches of the government are generally improving economically.  While there are few jurisdictions that are still hurting, most are hiring.  Some are still not replacing those who retire at the local level, but the State is hiring more then enough to offset that.

The State Employment Relations Board (SERB) has released the wage settlement report for 2013.  The economic mess really hit around the last quarter of the 2009.  The negative impact from recession hit the public sector twelve to eighteen months after.  The impact to wage increases was plain to see.  That was by far the worst average wage increase ever recorded by the SERB.

The State wide average increase in wages for 2011 was 0.57%.  In 2006 it was 3.01%. - The average wage increase has decreased every year since then.  The range over the ten years of the survey was 0.57% in 2011 up to 3.59% in 2002.  Since 2011 the wage increases have been going up.  In 2012 they were one (1%) percent and 2013 they were almost one and a half (1.47%) percent.  From what I’m seeing at the table, the trend of increasing wages is continuing.

The Cincinnati region had the largest decrease in wage rate increase in 2011, from the following year of 0.71%, down to 0.49%.  The lowest regional increase award goes to Cincinnati again for 2013 at one point twelve (1.12%) percent.  They are the only one of the regions that saw their rate of wage go down from the last wage survey.  Bad time to be in the south west section of Ohio!

Southeast Ohio had the largest wage rate in 2013 at one point nine (1.90%)..  That was the highest increase in wage rates as well.  However the largest increase from 2012 was in the Akron/Canton area.  They increased by almost three quarters of a percent (0.74%).

Counties were the jurisdiction that had the highest increase in rate of wage increase over 2013.  They had the highest percent for the second year in a row.  School Districts came in the largest increase from 2012 with a point six three (0,63%) percent increase over last year.

Police and Fire tied for the largest increase in unit type with one point six one (1.61%) percent.  Fire did better than any other unit six out of the last ten years.  The teachers found themselves on the bottom of the pack again.  They increased their percent wage increase by an average of one and a quarter (1.23%).

SERB Wage Breakdown

Last Updated (Monday, 29 September 2014 18:20)


Another Attack Against Labor Unions

BY:  Jeff Perry, Business Agent

It’s not real fun to have to sit across the table from so many anti-union, Management rights extremists.  It’s worse when the   Ohio State Legislators tries to lash out at unions with draconian changes to the collective bargaining law.  Now there is another blatant attack against public sector unions taking place in the US Supreme Court!

The outcome to Harris v. Quinn isn’t expected until June.  If it goes the wrong way, things could go real bad for public sector unions and those they represent.

The topic is fair share fees.  They are the fees a union can charge members of a bargaining unit that are not members of the union.  The reason unions have been allowed to charge a fair share fee is because the non-members benefit from the work of the union in the same way as union members.  In fact, unions are compelled to represent non-union employees should they have disciplinary charges brought against them.  They also have the right to file a grievance should the contract be violated. Most importantly to most, they end up getting paid the same wages as union members.

While they don’t have the right to participate in the creation of contract proposals or to vote for or against a contract, many union members don’t take part in or vote on contracts either.  While the OPBA does offer many other benefits over and above those required by law, many other unions don’t.  Those unions in particular, though all unions in general, would be exposed to the possibility of declining membership.

Many short sighted members would choose to save the cost of the union dues in the hope that the union will do their job anyway.  Given the extreme difference in the amount of money I make compared to those working for the dark side (management representatives), and the difference in the amount the dark side charges the Employer compared to what the Union Charges its members, the potential savings would really cost the employees a whole lot more than they might save!

The case was brought from Illinois when the State allowed the Service Employees International Union (SEIU) to organize home health care aids.  The employees that brought the case either voted against organizing or aren’t members of the SEIU.  They don’t feel they should even be classified as state workers since they can be fired by the family whose home they actual work in.

Fortunately, the Seventh Circuit Court disagreed.  They ruled the Employees did indeed work for the State of Illinois.  Further, they followed the 1977 ruling by the Supreme Court that allowed for fair share fees to be charged to non-member employees for those states that allow the fees.

When the case was tried, many of the conservative members appeared to agree with the plaintiffs.  Justice Kennedy spoke of the young employee who wanted to fight for wages instead of increased pension, or those who might fundamentally disagree with the direction of the union.  However, others did note that many employers in the private sector would rather deal with one union than a large number of individuals.

Hopefully the Supreme Court will keep the fair share fee.  In Ohio, we have enough to worry about without losing that!



The Economic Outlook

The last few articles I have written have been fairly depressing.  The economy had been growing slowly and none too surely.  Conflicts were increasing and wages were dwindling.  I didn’t take any pleasure writing them.

However, things are looking fairly good right now.  The sources I follow have been as optimistic as I’ve seen since the crash in 2009.

One of the sources I read is the Financial Times.  On January 30, 2012, they published an article regarding US consumer spending.  While the article did state that consumer spending had been stagnant in December from the rate in November, the majority of the article was positive. 

Incomes went up by a half percent in December.  Historically, that may be a fairly small number.  However, it is quite good when looking at the recent past.  The increase was primarily placed in savings, which increased to four percent (4%) of disposable income.   Compared to many industrialized Countries, that is not a real high number.  However, it is fairly high compared to the recent past for the USA.

Increasing the rate of savings of total disposable income is generable a positive thing for the Country.  However, right now, we could use more spending to help ramp up the economy.  Consumer spending accounts for around seventy percent (70%) of the economy in the USA. 

What will it take to get people to spend more?  In the past, an improving job market has done the trick.  The job market includes the feeling of stability with present employees, the prospects for those that don’t have a job, as well as the number of new jobs compared to lost jobs.  Those issues also have a large impact on wage increases. 

In the Economist, the same topics were discussed and others were analyzed in an article that credited additional debt, in the form of bank loans, for keeping the recovery going.  Specifically, improvements in job creation, hitting bottom on housing and the Federal Reserve keeping interest rates very low. 

Those, as well as inventory restocking, helped the economy grow in the fourth quarter by a 2.8% annualized rate.  The growth rate is predicted to slow down due to the need to reduce debt.  The hope is that larger wage increases coupled with low inflation will allow debt to be paid down while spending continues to increase.  So long as the private sector is allowed to proceed before the government tries to reduce the national debt and the US is not overly hurt by the European economy, things are looking much better for the next few years.

The Wall Street Journal said the numbers indicated sustained growth.  The numbers included almost a quarter of a million net new jobs in January.  Those jobs decreased the unemployment rate to 8.3%, the least since 2009.  The unemployment rate was 9.1% as recently as August.  The jobs were spread over most of the private sector.

Of the net job increase, there was actually a reduction in public sector employee jobs of 14,000 for the month.  It is fairly normal for the public sector’s economic conditions to lag a year or so behind the private sector.  Hopefully the additional taxes provided by the private sector’s growth will turn things around in the public sector as well.

While I was writing this article, The Christian Science Monitor also sent me an article on the economy.  In addition to much of what the others said, there was a reference to the Dow Jones, which jumped more than a hundred points after the announcement of the January numbers.

The job growth was spread throughout the various portions of the market.  Professional and manufacturing jobs had the largest increases.  Even construction hired over twenty thousand workers.  Further, the government analyzed the data and increased the number of jobs added over the prior two months by sixty thousand.

On the other hand, the USA is still over five and a half million jobs below the level prior to the start of the recession.  There is also quite a bit of concern over the European recession predicted to start any time now.  It could have quite a negative impact on US exports.  

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