Tarkowsky Law Employment Bulletin - Summer 2014
Employment Related Case Law and Legislative Changes
San Allen, Inc. v. Stephen Buehrer, ect., 2014 Ohio 2071
(decided May 15, 2014)
The Eighth District Court of Appeals held that the Cuyahoga County Common Pleas Court correctly determined that the BWC was responsible for developing and maintaining an unlawful rating system under which excessive premium discounts were given to group-related employers at the expense of non group-rated employers. As such, the BWC will be ordered through its restitution award, to refund the premium overcharges the BWC unlawfully and unjustly collected from non group-rated employers, which could amount to $859 million.
State ex rel. Smith v. Industrial Commission, 138 Ohio St. 3d 312
(decided February 18, 2014)
The Supreme Court held that the claimant's requested loss of use award for vision and hearing loss was properly denied after the claimant suffered brain damage and was in a vegetative state. The claimant suffered from a loss of brain-stem functioning, a loss that the General Assemly has not included in the schedule for compensation set forth in R.C. 4123.57 provides for significant compensation for the loss of sight and vision, it does not provide for compensation for a loss of brain-stem functioning that precludes the claimant from processing and understanding the visual and auditory stimuli that are received by functioning eyes and ears.
State ex rel. Richmond v. Industrial Commission, 2014 Ohio 1604
(decided April 17, 2014)
The Supreme Court determined that in an application for a violation of a specific safety requirement (VSSR), the Industrial Commission may not specifically adopt external standards as the sole basis for a VSSR award, but it may look to those standards as relevant factors to inform its interpretation of a SSR and its determination whether the employer violated that SSR. (Example: OSHA citations)
O.A.C. 4125-1-01: Wage Loss Compensation
Effective February 13, 2014, the Industrial Commission and BWC updated the wage loss statute concerning the processing and adjudication of requests for wage loss compensation. Notably, the updated rule includes provisions for online job searches, by requiring employees to submit online job postings, verification of the application submission, and the result of the contact. Additionally, self-insured employers are now required to adjudicate the initial application for wage loss compensation and inform the injured worker of its decision no later than thirty days after a request for wage loss compensation is received. Employers should be aware of such changes which may impact the defense of wage loss claims.
The National Labor Relations Board and Employer Social Media Policies
In a variety of recent decisions, the National Labor Relations Board (NLRB) has found numerous violations contained within common clauses utilized in employer company handbooks. Furthermore, employers have been found to have been in violation of the National Labor Relations Act (NLRA) by disciplining employees for actions taken on social media websites. Generally, employers may not utilize company rules which could interfere or obstruct employees' rights to act together informally to address the terms and conditions of their employment.
The law is not always clear and there may be many exceptions to established rules and regulations. Should any employment law question arise, feel free to contact John Tarkowsky at Tarkowsky & Piper Co., L.P.A. , 3 North Main Street, Suite 500, Mansfield, Ohio 44902, Telephone: (419)524-6682 or Gregory Tarkowsky in our Cleveland Office, 2786 S.O.M. Center Road, Suite 104, Willoughby Hills, Ohio 44904, Telephone: (440) 516-0306.