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Department of Labor Informal Guidance on Joint Employment and Independent Contractors Withdrawn

Employers employing independent contractors, temp workers, and other individuals potentially involved in joint employment relationships should be breathing a bit of a sigh of relief these days.  On June 7, 2017, the U.S. Department of Labor (DOL) withdrew guidance that had been in place since as early as 2015.  This guidance, developed under the Obama Administration, emphasized a broad interpretation of the Fair Labor Standards Act and supported prior efforts to crack down on employers potentially classifying employees and not complying with wage and hour laws.  Not surprisingly, this withdrawal of the guidance creates a more employer-friendly environment.

Effectively, this should not change how employers operate.  This withdrawal does not mean that employers can be lax in complying with federal wage laws.  In announcing the withdrawal, the DOL made it a point to state that it will continue to fully and fairly enforce all laws within its jurisdiction.  This withdrawal, however, potentially signals that the Trump Administration will be focusing its enforcement on other areas of the law.  MRR will continue to monitor the DOL for any new guidance on these subjects.

Stacy V. Pollock is an Associate in MRR’s Columbus Office. For more info, contact her at spollock@mrrlaw.com.

 

Court Finds Troopers’ Pursuit of Fleeing Suspect is not the Proximate Cause of Deputy’s Death

Kentucky’s Court of Appeals recently examined a case involving liability for damages arising out of the pursuit of a fleeing suspect. In Pursifull v. Abner, 2015-CA-000879-MR, 2016 WL 5335515 (Ky. Ct. App. Sept. 23, 2016), a sheriff’s deputy was killed when an individual being pursued by two Kentucky State Police troopers crashed his vehicle into the deputy’s cruiser. The victim’s family sued the troopers, claiming the deputy’s death was the result of the troopers’ negligent pursuit.

The trial court entered summary judgment in favor of the troopers because it found causation could not be proven. Relying on Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589 (Ky.1952), the trial court determined the criminal’s conduct – not the conduct of the pursuing troopers – was the proximate cause of the fatal accident.

The Court of Appeals agreed that “police cannot be made the insurers of the conduct of the culprits they chase,” and noted that “[w]hile the officer’s pursuit did cause the suspect to speed, the officers were not liable for the suspect’s negligent speed.” Pursifull at *4. The Court found support for its ruling by virtue of the fact that the criminal subsequently pled guilty to the murder of the deputy under a statute requiring a mental state “substantially more severe than mere negligent conduct.” Finally, in a nuanced observation, the Court noted the troopers were not arguing the criminal’s conduct was a superseding cause of the harm, but instead only that their actions were not the proximate or legal cause of the deputy’s death.

The Pursifull opinion is significant for at least two reasons. First, it provides an insightful analysis of proximate cause vs. cause-in-fact in the context of a police pursuit. Second, it establishes that summary judgment is still available in cases featuring substantially similar facts. For any questions about Pursifull v. Abner and/or pursuit of a fleeing suspect related issues, please contact the attorneys at Mazanec, Raskin & Ryder Co., L.P.A.


Casey C. Stansbury
859.899.8514
cstansbury@mrrlaw.com

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Use of Force on Non-Violent Resistors

One of the most difficult decisions a police officer must make is whether to use force on an individual.  That decision becomes even more difficult when an officer confronts an individual in the midst of a mental health emergency.  Consideration of the affected individual’s safety, and the safety of the rest of the public, must inform an officer’s response.  Admittedly, federal courts of appeal throughout the United States have largely failed to announce a cohesive rule that guides officers’ response to mental health emergencies.  A recent case decided by the Fourth Circuit Court of Appeals, Estate of Ronald A. Armstrong v. Village of Pinehurst, provides helpful guidance for officers regarding the appropriate use of force in response to mental health emergencies and non-violent resistors.

In Armstrong, Jinia Armstrong Lopez convinced her brother, Ronald A. Armstrong, to go to the hospital after he exhibited erratic behavior.  Mr. Armstrong suffered from bipolar disorder and schizophrenia.  Shortly after his arrival, Armstrong left the hospital and walked in a nearby road with oncoming traffic.  Armstrong’s examining physician issued involuntary commitment papers and three police officers went to collect Armstrong.  As soon as the officers received notice that Armstrong’s commitment papers were finalized, they surrounded him.  Armstrong wrapped himself around a stop sign post and the officers could not remove him.  Just thirty seconds after telling Armstrong about his involuntary commitment, one of the officers was told to tase Armstrong.  The officer tased Armstrong five times in “drive stun mode,” which only increased his resistance to the officers’ demands that he let go and return to the hospital.  The officers ultimately pinned Armstrong to the ground, cuffed him, and shackled him.  Armstrong was unresponsive and stopped breathing.  He passed away shortly thereafter.

Armstrong’s estate brought suit against the Village of Pinehurst, the three officers tasked with returning Armstrong to the hospital, and the manufacturer of the taser.  The District Court for the Middle District of North Carolina determined that it was unlikely a constitutional violation occurred and the officers were entitled to qualified immunity and summary judgment.  On appeal, the Fourth Circuit determined that Armstrong’s “right not to be tased while offering stationary and non-violent resistance to a lawful seizure was not clearly established on April 23, 2011,” the date the officers apprehended Armstrong.  This determination was largely in response to case law from the Sixth Circuit that arguably supported the officers’ use of force.  The officers were entitled to qualified immunity even though the court determined they used excessive force.

In its decision, the Fourth Circuit set out “to clarify when taser use amounts to excessive force in, at least, some circumstances.”  Tasers are intended to cause pain and immobilize an arrestee.  Police officers should only use a taser when “confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser.”  The court’s decision made several important points:

  • An arrestee does not create an “immediate safety risk” when he or she resists officers and “physically prevent[s] an officer’s manipulation of his body.”
  • “Erratic behavior and mental illness do not necessarily create a safety risk.”
  • Officers have a diminished interest in using “potentially harmful force” when trying to stop a mentally ill individual from harming himself or herself.

While the court granted the officers in Armstrong qualified immunity, it determined that police officers use excessive force where they outnumber a mentally ill person and tase him when he is potentially a danger to himself while remaining stationary and engaging in non-violent resistance.  While the Fourth Circuit’s decision is not controlling in Ohio, officers within the Sixth Circuit should apply the rationale adopted by the Fourth Circuit to avoid potential violations of arrestees’ constitutional rights.  Officers should reserve the use of potentially harmful forces, like tasers, pepper spray, and batons for individuals who are actively dangerous and pose a threat to themselves, officers, and/or the public.  Use on a stationary and non-violent individual, even when he or she is arguably resisting, should be avoided as it risks violation of the individual’s constitutional rights.


 

Mazanec, Raskin & Ryder Appoints Doug Holthus as Columbus Administrative Partner

Doug Holthus(Cleveland, OH – Friday, April 1, 2016) — Mazanec, Raskin & Ryder Co., LPA (MRR) is pleased to announce the appointment of Doug Holthus as administrative partner of the law firm’s Columbus office, effective April 1, 2016.

“We are fortunate to have a lawyer with Doug’s skills and capabilities take on this role and we are confident that he will maximize our firm’s opportunities for continued growth and success in Central Ohio,” said Joe Nicholas, the firm’s President and Managing Partner.

Doug focuses his practice on civil rights and government liability, corporate law, employment and general liability matters. He counsels small and large companies, public and private entities on legislative and administrative matters in a diverse range of industries including health care, information technology, telecommunications, real estate, retail, and education. He has tried, advocated and or arbitrated nearly one hundred cases before civil juries, administrative licensing (and other) boards and arbitration panels throughout Ohio (and California), in both state and federal court.

Prior to joining MRR, Doug was in private practice and had also served as General Counsel for Kokosing Construction Company and its affiliated entities.

A graduate of Wittenberg University, Mr. Holthus went on to earn his J.D. from Capital University Law School. He serves as Chair of the Columbus Bar Association’s Professionalism Committee (by appointment), is a Member of the Board of Directors of the Professional Liability Defense Federation (“PLDF”) and the Ohio State Bar Association, and Doug is AV-Preeminent rated by the Martindale Hubbell Law Directory.

MRR Article: When an Injury at Work is Not a Workplace Injury – Strategies to Further Protect Your Business’s Bottom Line in Ohio

By: Stacy V. Pollock, Esq.

Workers’ compensation premiums can be an expensive and frustrating cost of doing business. Ohio’s Workers’ Compensation is a no-fault system, meaning employees nearly always are going to be eligible for benefits, even if they, themselves, are at fault for their injury. However, there is a small caveat to the law that few businesses understand, but could potentially save tens of thousands of dollars in unnecessary increased premiums if businesses recognize the issue and timely dispute the claim with the Bureau of Workers’ Compensation (“BWC”).

Claimants, meaning injured employees, are not permitted to recover benefits in limited circumstances. Some such situations include injuries incurred during a recreational activity (ie. using the company-owned weight room) if the employee signed a C-159 form, or for injuries from horseplay or intoxication, when the business has the appropriate procedures in place. Claimants are also not entitled to benefits for idiopathic injuries.

Idiopathic injuries are injuries that arise from circumstances unique to the individual. In the context of workers’ compensation, idiopathic refers to a claimant’s preexisting physical weakness or disease which contributes to the accident. For example, a diabetic claimant has neuropathy of the leg, unexplainably falls and sustains an injury from the fall. Unless the claimant is able to demonstrate that the diabetic neuropathy was not the reason for the fall (for example, there was water on the floor that caused her to slip), she should not be entitled to any workers’ compensation benefits.

One limitation to the idiopathic injury exception involves claimants with pre-existing conditions who are exposed to a heightened risk or hazard because of their employment. For example, an employee with a history of seizures works with a welding machine. While on-duty, he has a seizure and falls onto the machine, sustaining an injury from the machine. The welding machine is an added risk or hazard to the employment and therefore makes the injury eligible for workers’ compensation benefits even though the reason for the fall was the claimant’s seizure. However, if that same seizure-prone employee walks down the hall, has a seizure and hits his head on the floor, the floor is not an added risk or hazard to the employment. The individual could have had a seizure and hit his head on the floor anywhere outside of employment. As such, his injury from hitting the floor is not compensable.

Businesses should be mindful of this caveat in workers’ compensation laws. Many idiopathic injuries tend to involve serious injuries that drive up premiums once the claim is allowed. The BWC ordinarily will tentatively allow the claim without any investigation into the cause of the accident. Businesses are only permitted to contest whether or how an accident occurred prior to the BWC allowing the initial claim. Thus, it is critical that businesses assess each workplace injury immediately after the accident to determine whether such injury was actually received in the course of, and arises out of, the employment. If the accident is of some unexplained origin, businesses should explore with legal counsel the possibility of disputing the claim.

In sum, businesses need to take an active role in investigating and questioning workplace injuries, particularly when injuries occur to employees with a pre-existing condition. Businesses must contest those claims within fourteen days of the BWC’s tentative allowance of the claim. Failure to do so will forever bar the business from arguing that the medical conditions and wage loss claims on the claim should not be paid because the accident was caused by the claimant’s own medical condition.

For more information about this matter or any workers’ compensation matter, please contact MRR Columbus Attorney Stacy Pollock at spollock@mrrlaw.com.

MRR Ohio Legislation Updates: February 26, 2016 – March 10, 2016

Notes from the House of Representatives:

  • H.B. 481 was introduced to revise the requirements regarding student enrollment reporting for public schools, mandatory student withdrawal policies, and scholarship program eligibility relative to students who choose not to take state assessments during the 2015-2016 school year
  • H.B. 486 was introduced to increase the state minimum wage to ten dollars and ten cents per hour beginning January 1, 2017
  • H.B. 488 was introduced to modify the qualified immunity from civil liability for volunteer health care services provided to indigent and uninsured persons and to permit health care professionals to earn continuing education credit by providing volunteer health care services to indigent and uninsured persons

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

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Drones and Law Enforcement – The Future is Now

By: Curtis M. Graham, Esq.

Nowadays it is not uncommon to look up into the sky and see a drone flying overhead. Everyone seems to have one. The rise (pun intended) of unmanned aerial vehicles (“UAVs”) presents interesting questions for law enforcement officials across the country. Some are responding to criminal complaints, as was the case when a University of Kentucky student was charged with second degree wanton endangerment after flying his drone into Commonwealth Stadium prior to a football game last fall. Others are utilizing UAVs to conduct their own search and rescues.

The Somerset Police Department in Kentucky is believed to be the first police department in Kentucky to use an UAV. The Department has received training from the Federal Aviation Administration (FAA) and has created policies and procedures governing the device’s operation. One Department official commented that they are required to notify air traffic controllers at least 30 minutes before any flight and that they cannot fly higher than 400 feet above ground level. Additionally, officials must maintain visual contact with the drone at all times while it is in flight and all pilots must be FAA certified.

But the law is unsettled, and the Kentucky legislature will soon hear House Bill 22 which could prohibit the use of evidence obtained by drones in criminal trials. Additionally, law enforcement agencies using drones would be required to use the drone “in a manner to collect data only on the target and minimize data collection on individuals, homes, or areas other than the target.” The proposed title for the law is the Citizens’ Freedom from Unwarranted Surveillance Act.

Kentucky is not the only state confronting these issues. According to the National Conference of State Legislatures, 45 states considered at least 156 bills relating to drones in 2015. Needless to say the law in this area is rapidly changing, and it is important for law enforcement officials to stay current on the state of the laws governing drone use.


For questions or more information on “Drones and Law Enforcement – The Future is Now,” contact:


Curtis M. Graham  – MRR Lexington
Phone: 859.899.8516
Fax: 859.899.8498
Email: cgraham@mrrlaw.com

MRR Legislative Update: Senate Introduces SB 268 to Reform Employment Discrimination Cases

By: Tami Zupkow Hannon, Esq.

On February 1, 2016, SB 268 was introduced in the Ohio Senate. This bill, if passed, would reform the current state anti-discrimination laws. Of particular note, the proposed bill:

  • Reduces the time to file a state law discrimination claim from the current 6 years to 1 year;
  • Enlarges the current 180 day time frame to file a charge with the Ohio Civil Rights Commission to 365 days;
  • Adopts damage caps on the amount of punitive and non-economic damages that can be awarded in a discrimination claim. The cap would be on a sliding scale based on employer size with damages ranging from $50,000 to $300,000;
  • Refines the definition of “employer” to remove reference to “any person acting directly or indirectly in the interest of an employer;”
  • Clarifies that personal liability should not be imposed on managers, supervisors or coworkers for employment based discrimination claims (but note that personal liability may still be possible under the aiding and abetting provisions of R.C. §4112.02(J)); and
  • Limits the ability to file a civil suit in some instances where the claim was pending or previously filed with the Ohio Civil Rights Commission.

As the bill has only recently been introduced, it is likely that there will be revisions to the language as additional comments, debate and analysis is conducted. We will continue to monitor the status of this bill and provide updates as it proceeds through the General Assembly.


For questions or more information on “Senate Introduces SB 268 to Reform Employment Discrimination Cases,” contact:


Tami Zupkow Hannon  – MRR Cleveland
Partner
Phone: 440.424.0009
Fax: 440.248.8861
Email: thannon@mrrlaw.com

MRR’s Columbus Office Expands with Addition of Partners Doug Holthus and Elisabeth “Lisa” Gentile

Holthus.Gentile PR PhotoMRR is pleased to announce the addition of two attorneys to its Columbus office. The new lawyers joined MRR on January 18, 2016. They represent clients in a number of practice areas, including medical defense, auto and commercial trucking, insurance coverage and bad faith, restaurant and retail defense, corporate law, public sector law, civil rights and government liability, real estate, and professional and product liability.

The attorneys joining MRR are Partners Doug Holthus and Elisabeth “Lisa” Gentile.

“We are thrilled to expand our services in Columbus with the addition of these highly talented attorneys,” MRR President and Managing Partner Joseph F. Nicholas, Jr. said. “Both Lisa and Doug bring to the firm expertise in a number of practice areas, a set of exceptional legal skills, and a client-focused commitment to excellence.”

Founding Partner Todd M. Raskin also noted that it’s a homecoming for Lisa Gentile and the firm couldn’t be more pleased to have her back on the team. She began her career at MRR as a law clerk.

“Both attorneys’ backgrounds allows for MRR to respond to demands from clients requesting the greater depth and expertise necessary to service their increasingly sophisticated legal needs,” stated Mr. Nicholas. “The strengthening of MRR’s Columbus office will allow the firm to better serve and develop new clients on a regional level, while continuing to provide a full range of legal services through its collaborative practice model involving more than 38 lawyers in three offices.

MRR Ohio Legislation Updates: January 1, 2016 – January 14, 2016

Notes from the House of Representatives:

  • H.B. 423 was introduced to specify that an order for active military service or other documentation regarding the call to order of an individual in the Armed Forces of the United States or the Ohio organized militia is not a public record
  • H.B. 424 was introduced to specify that military records provided by an officer or employee of a township or municipal corporation to the township or municipal corporation for personnel matters are not public records

Notes from the Senate:

  • S.B. 258 was introduced to establish the duties and authority of the Attorney General to investigate and prosecute cases relating to the death of a person caused by a peace officer

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

 

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