Guns in the Workplace? What Every Private Business Needs To Know

By Christina Vessels

Christina VesselsGun-related violence headlines the news every day, and workplace shootings are, unfortunately, a reality of the times we live in. According to the most recent Bureau of Labor Statistics report, an average of 551 workers per year were killed as a result of work-related homicides, and of that number, approximately 78% of workplace homicides were committed with a firearm. [Bureau of Labor Statistics, U.S. Dep’t of Labor, Workplace Homicides from Shootings, analyzing data from 2006 to 2010, at http://www.bls.gov/iif/oshwc/cfoi/osar0016.htm (last visited Oct 11, 2016)]. And, those numbers do not account for additional workplace shootings that result in non-fatal injuries. Although such tragic incidents account for only 11% of all fatal work injuries, the threat of gun violence is an area that all employers must be prepared to address in their risk management.

Of course, all employers have a duty to provide a safe working environment. To that end, many private employers adopt policies that ban all weapons at work, and both Kentucky and Ohio allow private employers to prohibit employees and invitees from carrying weapons onto their work premises, including lawfully possessed concealed firearms. But many states, including Kentucky, have “Parking Lot Statutes” that allow employees to legally keep firearms in their parked cars even when firearms are banned at the workplace by an employer.

Kentucky Revised Statute 237.106(1) provides that an employer cannot prohibit an employee from keeping a firearm in a vehicle on company property unless the employee is prohibited from carrying a firearm by federal or state law; however, that firearm can only be removed from the vehicle in an act of self-defense of others or property or with the employer’s authorization. An employer who violates these rights is liable in civil damages.

Ohio does not currently afford such protection for its concealed handgun licensees and will allow an employer to prohibit weapons, even in privately-owned employee vehicles while in their company parking lots. However, a bill has been introduced in the Ohio legislature that would prohibit any employer from discriminating against an employee for storing a firearm in his or her locked vehicle in the employee parking lot.

So, what is an employer to do to both keep its employees safe and to insulate itself from liability?  Employers should have policies in place to prohibit workplace violence of all kinds—including not only violence that results in physical injury, but also harassment, bullying, and intimidation. And, employers must consider whether they want to ban all weapons to the extent available under the law, or whether they want to take other actions to provide a safe workplace without such a ban. For instance, in Kentucky, even with its protections to allow employees to maintain weapons in their personal vehicles on work premises, courts have upheld additional employer administrative requirements, like requiring disclosure of any weapons maintained in a privately-owned vehicle on the employer’s property. Or, if an employer chooses to allow handguns or other weapons on its property, other safeguards can be implemented—like requiring a copy of the permit to carry to be kept on file and storage of any firearms in a locked safe while on the premises.

Whatever they choose, private employers must know the laws of the state in which they are operating—laws which are rapidly changing and developing. That means if an employer operates in multiple states, its policies must be tailored specifically for each state’s unique laws, and it must keep abreast of the updates in the law. Then, equally important as determining the rules of the workplace in relation to firearms or other weapons is communicating and uniformly implementing those rules to all employees.

If you have questions about your company’s policies with regard to firearms and other weapons in the workplace, please contact any of the following attorneys at Mazanec, Raskin & Ryder Co., L.P.A.:

Christina Vessels – Lexington
cvessels@mrrlaw.com
859.899.8515

Tami Hannon – Cleveland
thannon@mrrlaw.com
440.424.0009

Stacy Pollock – Columbus
spollock@mrrlaw.com
614.324.0163

 

Save

Save

Save

Save

Save

Kentucky’s Court of Appeals Says Jail Surveillance Video Should be Made Part of Administrative Record

The Kentucky Court of Appeals recently issued a decision addressing the type of evidence that should be presented in a jail disciplinary proceeding. In Lawless v. Conover, 2015-CA-000039-MR, 2016 WL 2981580 (Ky. Ct. App. May 20, 2016), an inmate disputed an Adjustment Officer’s (AO) finding that she was guilty of inflicting an injury on a correctional officer. The inmate had requested the AO to view the surveillance camera footage of the incident, because she believed the video supported her version of the events.  Despite finding the inmate guilty of the charge, the AO made no mention of the surveillance footage in her written determination. The inmate subsequently filed suit, challenging the validity of the disciplinary proceeding.

The defendants filed a motion to dismiss the plaintiff’s complaint. In support of that motion, they submitted an affidavit from the AO which stated that, although she had reviewed the video, her finding was not based on it. The case was dismissed by the trial court, as the Court found the plaintiff had “received due process and there is some evidence in the record to support the findings of the AO.”

The Court of Appeals would ultimately reverse the trial court’s dismissal, noting that “specific holdings of the U.S. Supreme Court necessitate particular treatment of an inmate’s request that the prison tribunal consider exculpatory evidence.” Citing Ramirez v. Nietzel, 424 S.W.3d 911 (Ky. 2014), the Court noted that an adjustment officer conducting a hearing must, if requested by an inmate, review security footage and consider its weight in making a finding of guilt or innocence. Additionally, the hearing officer must indicate in his or her written statement that they undertook a review of the video evidence and state whether it confirms or contradicts the inmate’s version of events. The Court also noted the inmate should have been provided access to the surveillance footage or be given a legitimate explanation as to why she was not. Moreover, the surveillance footage should have been reviewed by the circuit court.

Perhaps most importantly, the Court declared “it is the responsibility of the state agency (here, the Department of Corrections) to prepare a record for filing with the circuit court before that court declares the prisoner’s rights.” In other words, the Department of Corrections was required to submit the surveillance footage to the Court. For these reasons, the lower court’s dismissal of the inmate’s lawsuit was reversed, and the Department of Corrections was required to make the surveillance video available for the circuit court’s consideration.

Officials in Kentucky responsible for inmate discipline would be well served to take note of this important opinion. For any questions about the implications of the Lawless or Ramirez decisions or evidentiary issues related to jail discipline in general, please contact the attorneys at Mazanec, Raskin & Ryder Co., L.P.A.


Curtis M. Graham

 

 

Curtis M. Graham
859.899.8516
cgraham@mrrlaw.com

Save

Save

Save

Save

Case Law Updates – Statutory Immunity and Damages Caps for Ohio Political Subdivisions

Subject to statutory exception, political subdivisions in Ohio are immune from tort liability.  In the recent case of Kinderdine v. Mahoning Cty. Bd. of Dev. Disabilities, 7th Dist. Mahoning No. 14 MA 0174, 2016-Ohio-4815, MRR attorneys Todd Raskin, Carl Cormany, and Frank Scialdone successfully argued on appeal that our political subdivision clients were not subject to any statutory exceptions, and therefore were immune from liability under R.C. 2744.02(A)(1).

The case stemmed from a drowning at the swimming pool of one of our clients.  Plaintiff, the estate of decedent, argued that the decedent’s injuries were caused by our client’s negligence and a physical defect on our client’s property, as R.C. 2744.02(B)(4) requires a plaintiff to prove that the injury was caused by both negligence and an on-site physical defect in order to extinguish the immunity granted under R.C. 2744.02(A)(1).  Plaintiff alleged two defects – that the pool cover was not covering the pool and that a door leading to the pool was faulty.  However, case law is clear that the failure to use an available safety device (pool cover) does not constitute a physical defect.  As such, plaintiff had to rely on the allegation that the faulty door caused the decedent’s death.

The Court in Kinderdine ruled that while there was evidence the door was faulty, the door itself did not cause decedent’s death, as the decedent was not hit or trapped by the door, and thus, the exception in R.C. 2744.02(B)(4) did not lift the grant of immunity set forth in R.C. 2744.02(A)(1).  The court’s ruling is an important decision for our political subdivision clients, as it makes clear that in order to overcome the immunity granted by R.C. 2744.02(A)(1), a plaintiff must prove that the physical defect on a political subdivision’s property actually caused the plaintiff’s injury, not simply that the defect somehow contributed to the injury.

In another recent case, Jones v. MetroHealth Med. Ctr., 8th Dist. Cuyahoga No. 102916, 2016-Ohio-4858, the Eighth District Court of Appeals upheld the trial court’s reduction of a jury award against a political subdivision by almost $9 million pursuant to R.C. 2744.05(B)(1), which deducts the amount of benefits a plaintiff receives from a collateral source from any damages awarded against the political subdivision, and R.C. 2744.05(C)(1), which caps non-economic damages at $250,000 per plaintiff in all tort actions other than wrongful death.

In Jones, a public hospital was sued for medical malpractice after plaintiff’s son was born with cerebral palsy and other developmental disorders.  A jury awarded $6 million total in non-economic damages, but pursuant to R.C. 2744.05(C)(1), the trial court lowered the damages to $500,000 ($250,000 for plaintiff and $250,000 for her son, also a plaintiff) and the Court of Appeals affirmed, rejecting plaintiffs’ argument that R.C. 2744.05 violated her constitutional rights and re-affirming the constitutionality of R.C. 2744.05.

The Jones case also affirmed the lowering of plaintiffs’ economic damages from $8.5 million to just over $5 million, affirming the trial court’s ruling that because all of the son’s past medical bills were paid by Medicaid and Social Security (collateral sources), the hospital was entitled to a complete setoff under R.C. 2744.05(B)(1).  As for future economic damages for ongoing medical care, plaintiffs’ damages were lowered by nearly $3 million, as it was undisputed that the son would qualify for medical insurance under the Affordable Care Act until he became eligible for Medicare and that Medicare would pay all future medical expenses from that point forward.  While the attorneys at MRR did not act as legal counsel for the defendants in Jones, the court’s ruling is nonetheless an important reminder of the financial protections our firm is able to employ on behalf of our political subdivision clients.  For any questions about other implications of R.C. 2744 or political subdivision tort liability and immunity in general, please contact the attorneys at Mazanec, Raskin & Ryder Co., L.P.A.

Todd R. Raskin
440.424.0023
traskin@mrrlaw.com

Carl E. Cormany
440.287.8291
ccormany@mrrlaw.com

Frank H. Scialdone
440.424.0021
fscialdone@mrrlaw.com

“The Changing Face of Gender Discrimination” – A New Article by Tami Hannon Published by DRI

In her second article on Transgender Law published this month, Mazanec, Raskin & Ryder’s Tami Hannon provides an in-depth study of the unique concerns that transgender discrimination presents in a correctional or prison setting, in the workplace, and in public housing. “The Changing Face of Gender Discrimination” can be read in full HERE.

Raskin, McLandrich, and Pollock Named to 2017 “The Best Lawyers in America”© List

Mazanec, Raskin & Ryder Co., L.P.A. (MRR) is pleased to announce that three attorneys have been named to the 2017 Edition of Best Lawyers®, the oldest and most respected peer-reviewed publication in the legal profession. Lawyers on The Best Lawyers in America© list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise.

MRR would like to congratulate Todd M. Raskin (Civil Rights Law), John T. McLandrich (Civil Rights Law) and Stacy V. Pollock (Education Law) for being named among The Best Lawyers in America© for 2017.

 

Todd Raskin is a founding partner of MRR and has tried more than 100 cases to conclusion in 35 years of private practice. His diverse practice focuses on civil rights and government liability defense, as well as the defense of both public and private employers. He has defended clients in state and federal courts throughout Ohio and surrounding states, including in the U.S. Court of Appeals for the Sixth Circuit and the Ohio Supreme Court.

 

 

 

John McLandrich

 

John McLandrich, MRR’s Chairman of the Board, has defended civil claims in federal and state courts throughout Ohio for more than 25 years. He has also served as lead counsel on over 100 public entity appeals before the U.S. Court of Appeals for the Sixth Circuit and the Ohio Supreme Court.

Both Todd and John have consistently been named Best Lawyers® for Civil Rights law, in addition to each being selected as “Lawyer of The Year” by Best Lawyers® for Civil Rights Law in Cleveland, Ohio—John in 2014 and Todd in both 2013 and 2017.

 

 

SVP.V2 (border)

 

 

Stacy Pollock, is named a Best Lawyer® for her work in Education Law. She is a Certified Professional in Human Resources who represents and advises public and private employers in labor and workers’ compensation matters, including schools and school administrators.

 

 

 

About Best Lawyers®

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Over 79,000 leading attorneys globally are eligible to vote, and we have received more than 12 million votes to date on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.” For more information, visit bestlawyers.com.

 

Save

Save

Save

Save

Save

MRR Ohio Legislative Updates: July 29 – August 11, 2016

Notes from the House of Representatives

  • HB No. 587 was introduced to require law enforcement officers to use dashboard cameras and body cameras during any time that they are interacting with any member of the public while in the performance of their duties, to provide for state financial assistance to local law enforcement agencies for the purchase of such cameras and related equipment.

Notes from the Senate

  • SB No. 342 was introduced to grant municipal corporations the authority to impose a ban or restriction on the open carry or concealed carry of any firearm in a publicly secured area established by the municipal corporation during an event of regional or national significance being held in the municipal corporation.
  • SB No. 344 was introduced to enact the Consumer Protection Call Center Act of 2016 to require the Department of Job and Family Services to compile a list of all employers that relocate a call center to a foreign country and to disqualify employers on that list from state grants, loans, and other benefits.

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

Save

Save

Save

Save

Save

Save

Tami Hannon Published in Cleveland Metropolitan Bar Journal

Mazanec, Raskin & Ryder’s attorneys are at the forefront of the evolving area of Transgender law in Ohio.

MRR Cleveland’s Tami Hannon recently published “Changing Roles: Transgender Law in Ohio” in the July issue of the Cleveland Metropolitan Bar Journal.

MRR Ohio Legislative Updates: July 15 – July 28, 2016

Notes from the Senate

  • SB No. 340 was introduced to regulate the use of indemnity provisions in contracts related to public improvements.
  • SB No. 341 was introduced to allow a person who has a concealed handgun license to carry concealed all firearms other than dangerous ordnance or firearms that state or federal law prohibits the person from possessing and to provide that a person 21 years of age or older and not legally prohibited from possessing or receiving a firearm by federal law does not need a concealed handgun license in order to carry or have concealed on the person’s person or ready at hand a firearm and is subject to the same laws regarding carrying a concealed firearm as a person who has a concealed handgun license.

 


For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

 

 

 

Save

Save

Save

Save

Medical Marijuana Becomes Legal in Ohio in September – Full implementation takes place over two-year span

On June 8, 2016, Ohio Governor John Kasich signed H.B. 523 into law.  By doing so, Ohio becomes the 25th state to legalize medical marijuana.  However, there are numerous important portions of the law that you must be aware of before it takes effect on September 8, 2016.

Under the law, a patient, on the recommendation of a physician, will be permitted to use medical marijuana to treat qualifying medical conditions.  These conditions include AIDS, ALS, Alzheimer’s, cancer, CTE, Crohn’s, seizure disorders, fibromyalgia, glaucoma, hepatitis C, IBS, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury, ulcerative colitis, Parkinson’s disease, PTSD, and pain that is either chronic and severe or intractable.  A physician must apply for permission to prescribe marijuana and will be required to complete continuing education in the use of medical marijuana.  Patients and caregivers of those receiving medical marijuana must be registered with the Board of Pharmacy.

The medical marijuana program will be fully operational not later than two years after the effective date of the bill, September 8, 2016.  In fact, dispensaries will not be set up for at least another year. The Department of Commerce, in conjunction with a 14-member bipartisan Advisory Committee have until May 2017 to determine rules and regulations for cultivators.  However, patients will be provided legal protections (an affirmative defense for possession) beginning on September 8, 2016, with dispensaries to begin selling medical marijuana to patients by 2018.

It is important to note, under the law, individuals are not permitted to grow their own marijuana or smoke any marijuana.  Instead, patients will be permitted to utilize marijuana through patches, some edibles, and vaporizing marijuana.

It is critical to note   that medical marijuana, like all marijuana, is still illegal under federal laws.  Further, employers may continue to establish and enforce policies prohibiting the use of marijuana by their employees.  Just because medical marijuana is legal under the laws of Ohio does not mean that a person’s consumption of it is guaranteed without consequences.

This new law will continue to develop as the processes and procedures for the regulation and operation of medical marijuana businesses are established further by the State Medical Board, Board of Pharmacy, and Department of Commerce as they make additional recommendations for the medical marijuana program. The attorneys at Mazanec, Raskin and Ryder will keep you updated as additional guidance on medical marijuana cultivation, dispensing, and use becomes available.


For questions or more information on the subject matter of this article, please contact:

Terry Williams (border)

 

Terry L. Williams – MRR Cleveland
twilliams@mrrlaw.com / 440.424.0017

 

 

Save

Save

Save

Save

Save

Save

MRR Ohio Legislative Updates: June 17 – July 14, 2016

Notes from the House of Representatives

  • HB No. 583 was introduced to remove any requirement under the Public Employees Collective Bargaining Law that public employees join or pay dues to any employee organization, to prohibit public employers from requiring public employees to join or pay dues to any employee organization, and to prohibit an employee organization from being required to represent public employees who are not members of the employee organization.
  • HB No. 585 was introduced to provide that a record created by a body camera that is worn or carried by a law enforcement officer who is engaged in the performance of the officer’s official duties generally is a public record, to provide in the specified circumstances in which such a record is not a public record that there are conditions under which the record becomes a public record, to provide that the portions of a record that contain personal information or information that is not relevant to the offense or delinquent act are exempt from inspection and copying under the Public Records Law and are subject to redaction, and to require a local records commission to maintain records from a body camera for a minimum of one year unless the law enforcement agency is subject to a records retention schedule that establishes a longer period of time.
  • HB No. 586 was introduced to require the Ohio Civil Rights Commission to establish a system for individuals to make anonymous complaints regarding employers discriminating in the payment of wages.

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

Save