Tarkowsky Employment Law Bulletin: Summer 2019

Arbitration Agreements:

Generally, Ohio’s public policy encourages arbitration agreements as a method to settle disputes. Employers often include arbitration clauses in employment agreements or handbooks.
Notably, however, Courts can be split as to the enforceability of the exact same arbitration agreements:
- In Jones v. Carrols, LLC d/b/a Burger King (9^th Dist. Summit County, 2019-Ohio-211), the Ninth District Court of Appeals held that Burger King’s Mandatory Arbitration Program was enforceable against its employee.
- By contrast, in Arnold v. Burger King (8^th Dist. Cuyahoga County, 2015-Ohio-4485), the Eighth District held that the same arbitration agreement was not enforceable against an employee. The Court held that the Mandatory Arbitration Program was not enforceable, citing: 1.) the arbitration clause was too expansive and should exclude fact patterns which were not directly related to the employee’s employment; 2.) the disparate bargaining power between the employee and employer; 3.) the complexity of the agreement made it unreasonable for an employee to understand its terms; and 4.) the costs associated with arbitration can be excessive as the employee had the burden to pay or contribute to arbitration costs.
In order to enforce arbitration agreements, employers are advised to:

Have all employees read and sign any arbitration clause or agreement to indicate an understanding and consent.
Remove unnecessary terms that a Court may find objectionable.
Use plain language—especially when employing an unsophisticated workforce.
Consider splitting arbitration costs with an employee, or using arbitration services which are less expensive.

The Tenth District Court of Appeals held that a workers’ compensation claim could be suspended pursuant to R.C. §4123.651(C) if a claimant refuses to complete a medical examination.
In this workers’ compensation claim, an employee was scheduled for an independent medical examination by the employer to determine if the employee developed a psychological condition resulting from his physical work injury.
- The employee appeared at the examination, and answered the physician’s questions; however, the employee refused to undergo the physician’s mental/behavioral testing.
- Due to the employee’s refusal to submit to the psychological testing, the employer requested that the claim be suspended.
The Court held that the claim can be suspended due to the claimant’s non-compliance, as R.C. §4123.651 permits claim suspension “if, without good cause, an employee refuses to submit to any examination scheduled under this section,” including one by the employer.

The Tenth District Court of Appeals held that a claimant is not entitled to temporary total disability benefits after he/she voluntarily retires from the workforce.
In this case, the Court relied upon State ex rel. Klein v. Precision Excavating & Grinding Co., 2018 Ohio 3890, which held that “when a claimant voluntarily removes himself from his former position of employment for reasons unrelated to the workplace injury, the claimant is no longer eligible for temporary total disability compensation, even if the claimant remains disabled at the time of his separation of employment.”

On June 5, 2019, Governor DeWine authorized a grant of $11 million over the next two years to help employers and unemployed workers overcome issues related to the opioid epidemic.
The grant will be distributed to 20 local workforce development areas, with the intent in helping unemployed workers overcome addiction issues and obtain employment.
The grant also has provisions to support employers who develop second-chance drug policies to hire individuals in recovery.