Attorneys in Cincinnati Oh & N. KY | Blog

WARNING: OEHHA amends California Proposition 65 requirements for "clear and reasonable warnings": next steps

Posted on Mon, Nov 07, 2016 @ 03:59 PM

by Dave Schmitt

DaveSchmitt.jpgCompanies that sell, distribute, or manufacture goods in California should be aware that the California Office of Environmental Health Hazard Assessment (OEHHA) has now introduced the final amendments to the "clear and reasonable warnings" required by California Proposition 65. This unique California law purports to protect Californians from "exposure" without "warning" to a list of over 900 chemicals that the state has identified as causing cancer and/or reproductive harm. Proposition 65 does not prohibit the use of any particular chemical, but rather requires a warning before exposure. Following the amendments, businesses that sell products in California will have to revamp their Proposition 65 warnings and provide more detail to consumers than they are currently providing. For instance, warnings must specifically identify at least one toxic chemical, hyperlink to OEHHA's new website, and use specific language that differs between consumer products, food, alcohol, and many other categories. These far-reaching changes have been in the works since 2014, undergoing minor revisions throughout, many of which have been discussed in prior C&B blog posts.

To illustrate the changes, take a before-and-after look at a Proposition 65 warning:

warning-1.png

NEXT STEPS

Although the new warning requirements will not take effect until August 30, 2018, we believe it makes sense to update your labeling and packaging sooner rather than later. Looking ahead, companies that conduct business in California should assess the impact of the new regulations and develop an implementation strategy. Slapping on a general Proposition 65 warning will no longer be sufficient. Instead, products must undergo detailed testing and analysis and be labeled with tailor-made warnings.

In addition, companies should keep detailed, verifiable, and readily accessible records on dates of manufacture of products containing the old warning language to ward off any challenges.

Proposition 65 already encourages a beacon for litigation; these changes will most likely generate even more lawsuits. Don't get caught out of compliance.

752616.1

Tags: California Proposition 65

What Employers Need to Know About OSHA’s New Regulations Regarding Workplace Injuries

Posted on Mon, Nov 07, 2016 @ 03:59 PM

by Dave Schmitt

DaveSchmitt.jpgNew OSHA regulations designed to encourage workplace safety reporting and discourage employer retaliation began to take effect on August 10, 2016. Other portions of these new rules, which become effective January 1, 2017, require many employers to electronically submit occupational injury and illness data that employers are currently required to record. OSHA plans to post the data from these submissions on a website available to the public, although no further information as to when that posting will occur.

These rules may have a significant impact on affected employers because customers, competitors, and the general public will now have easy access to details of an injury and illness history. In addition, potential investors will have new tools available to evaluate a company’s risk and potential liability. State and local governments also may well evaluate illness and injury rates when reviewing and awarding bids for large construction contracts.

Additionally, the final rule may increase employers’ exposure to criminal penalties under 18 U.S.C. § 1001 for false statements to the government. In December 2015, the Department of Justice and the Department of Labor jointly issued a memo indicating that both agencies would “increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations” with a “renewed” commitment. As part of this initiative, DOJ attorneys may begin to carefully examine the injury and illness disclosures required by OSHA’s final rule.

Key Provisions of OSHA’s Final Rule

Anti-Retaliation Provisions

Anticipating that employers may discourage reporting by employees of their occupational injuries and illnesses in light of the new posting provisions, OSHA has amended the recordkeeping regulations with certain anti-retaliation provisions. While the rest of the final rule becomes effective January 1, 2017, the three anti-retaliation requirements below became effective on August 10, 2016 and they require employers to:

  • Inform employees in writing of their right to report work-related injuries and illnesses;
  • Clarify existing requirements that an employer’s procedure for reporting work-related injuries and illnesses be reasonable and not deter or discourage employees from reporting; and
  • Incorporate the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

Accordingly, employers may want to immediately review their employee policies to verify that any incentive policies aimed at minimizing workplace injuries and illnesses do not inadvertently encouraging underreporting.

OSHA has also taken additional steps to discourage retaliation against those reporting injuries. Currently, Section 11(c) authorizes OSHA to take action against an employer for retaliating against an employee only if the employee has filed a complaint with OSHA within 30 days of the retaliatory action. OSHA believes that some employees may not have the time or knowledge needed to file so quickly or that employees may fear additional retaliation if they do file.

The new rule allows OSHA to issue citations to employers for retaliating against employees for reporting injuries or illnesses and to require abatement even if no employee has filed a complaint under Section 11(c). While the term “abatement” is not fully defined, OSHA indicates that the goal of “abatement” is to eliminate the source of the retaliation and to make an adversely treated employee whole. Therefore, it is reasonable to assume that “abatement” could include reinstatement with back pay.

Electronic Submission of Injury and Illness Data

OSHA’s regulations require employers with more than 10 employees in most industries to maintain records of work injuries and illnesses at their facilities. OSHA’s final rule amends these regulations to require electronic submission of the records employers are required to keep.

Establishments with 250 or more employees must electronically submit their Part 1904 injury and illness recordkeeping forms (Forms 300, 300A, and 301) to OSHA on an annual basis. Establishments in certain industries with 20 or more employees, but less than 250, must electronically submit information from their Part 1904 annual summary (Form 300A) on an annual basis. Employers also must electronically submit information from Part 1904 forms to OSHA upon notification.

OSHA plans to post the company-specific injury and illness data it collects on its public website. OSHA does not intend to post information that would identify individual employees.

Implementation Schedule

OSHA will phase in the data collection system as follows:

  • Establishments with 250 or more employees in covered industries must submit information from their 2016 Form 300A by July 1, 2017. These employers must submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. In 2019 and thereafter, the information must be submitted by March 2.
  • Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. In 2019 and thereafter, the information must be submitted by March 2.

Impact on Drug Testing Policy

While the rule itself does not specifically mention drug testing, the preamble to the rule states OSHA’s conclusion that “mandating automatic post injury drug testing is a form of adverse action that can discourage reporting” and that “OSHA believes the evidence in the rulemaking records shows that blanket post-injury drug testing policies deter proper reporting.”

Thus, while the final rule does not ban drug testing, it shows a strong preference for testing regimes that focus only on incidents in which an impairment may have caused or contributed to the injury. OSHA provides several examples of injuries for which it believes mandatory testing would be inappropriate including: allergic reactions to bee stings, repetitive motion injuries, lack of machine guarding, or machine safety feature malfunctions.

The preamble also contains the following troubling statement—“If the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.” This statement is somewhat ominous given that this argument could easily be used any time an employee tests positive for marijuana use on a post-accident drug test.

Impact on Injury Reporting Policies

Most employers have policies in place requiring employees to report injuries and illnesses to their supervisors immediately. The new rule may require some adjustments to this type of blanket policy for repetitive use injuries as the new rule provides that reporting requirements must account for injuries and illnesses that build up over time, have latency periods, or do not initially appear serious enough to be recordable. The rule concludes that rigid prompt reporting requirements may result in employee discipline for late reporting, are not reasonable, and therefore violate the Final Rule.

OSHA Penalties Are Likely To Be Increased

The penalties for the various levels of OSHA violations have not been adjusted for 26 years, and OSHA has now changed those penalties. In a related rule effective August 1, 2016, OSHA increased the penalties amounts based on inflation as follows:

Violation Type Prior Penalty New Penalty
Willful $5,000 - $70,000 $8,908 - $124,709
Repeat $70,000 (max) $124,709 (max)
Serious $1,500 - $7,000 $2,670 - $12,471
Other Than Serious $0 - $1,000 $0 – $12,471
Failure to Abate $7,000/day (max) $12,471/day (max)
Violation of Posting $7,000(max) $12,471 (max)

DOJ Worker Endangerment Initiative

The DOJ and the DOL have teamed up to increase enforcement and criminal prosecution of worker endangerment violations. One driver for this new initiative is an interest in more severe punishments for safety violations, since worker safety violations are misdemeanors, not felonies under the Occupational Safety and Health Act. Prosecutors are likely to take a broader view of workplace investigations to encompass worker safety violations together with environmental crimes and traditional felonies such as false statements. The initiative may also seek to use the workplace safety crimes as “hooks” for charges with greater criminal exposure.

In light of OSHA’s final rule, employers should be particularly careful not to make false statements to the government. The False Statements Act (18 U.S.C. § 1001) generally prohibits willfully and knowingly making fraudulent or false statements, or concealing information, in “any matter within the jurisdiction” of the federal government. The breadth of 18 U.S.C. § 1001 is wide, and its potential application to OSHA’s final rule has important consequences.

Employers must be diligent about accurately and truthfully reporting workplace injury and illness data consistent with OSHA’s final rule. Company employees charged with reporting the information should be carefully trained on the reporting requirements and should quickly revise any inadvertently incorrect submissions. Records maintained on-site should match records submitted to OSHA.

As this transition progresses, Cors & Bassett will provide further information and guidance to assist you. Please contact David J. Schmitt via email at djs@corsbassett.com or by phone at 513-852-2587 if you would like to discuss this issue further.

752254.1

Tags: OSHA Regulations

California Prop 65 Warning Labels Are About To Change

Posted on Fri, Apr 08, 2016 @ 08:00 AM

by Dave Schmitt

DaveSchmitt.jpgCompanies manufacturing or distributing products in California should already be aware that California Prop 65 requires warning labels be affixed to all products containing substances which the State has identified as potential carcinogens or which may cause birth defects or other reproductive harm.  

 

As described in more detail in a previous blog post, in January, 2015 California’s Office of Environmental Health Hazard Assessment (OEHHA) published two notices of proposed rulemaking regarding the State’s Proposition 65 warning regulations.


The first dealt with new content for “safe harbor clear and reasonable” warnings, as well as the responsibility for and methods of providing such warnings.

 

California also proposed a new regulation authorizing the agency to establish a website “to collect and provide information to the public concerning exposures to listed chemicals for which warnings are being provided.” If finalized as currently written, the new website regulation will require a product manufacturer, producer, distributor, or importer subject to Proposition 65 warning requirements, to provide to OEHHA, upon request, specific information regarding any product, listed chemical, potential exposure, and “any other related information that the lead agency deems necessary” for which a warning is provided. In a silver lining however, OEHHA expressly states that the proposed website regulation “is not enforceable by private plaintiffs,” in contrast to the warning regulations currently in effect and those being proposed.

 

After a series of public hearings, the State has now formally proposed the new content for Prop 65 warning labels. The proposed changes aren’t dramatic, but will require new labels once they become effective. For instance, the “new” labels will require a new icon featuring an exclamation point inside of a colored triangle. In addition, the word WARNING will be larger and in boldface.

 

Perhaps most importantly, the labels will be required to identify the specific substance that triggers the labeling requirement. For example, a “new” label might read:

 warning.png

 

Anyone wishing to submit written comments on the proposed changes must do so by April 18. 2016. Comments should be sent by email to: P65PublicComments@oehha.ca.gov

 

The new rules are slated to be finalized in November, 2016 and will take effect two years later, near the end of 2018. This should provide ample time for the affected businesses and industries to review their products and revise their Prop 65 warning labels.

 

Cors & Bassett will continue to monitor this rulemaking and will provide updates on the status of OEHHA’s proposed regulatory action. If you have any questions, please contact David Schmitt at 513-852-2587 or by email at djs@corsbassett.com

Private employers: The “True Up” for Worker’s Compensation premiums is just around the corner.

Posted on Mon, Mar 21, 2016 @ 08:00 AM

The way Ohio employers pay BWC for workers’ compensation coverage continues to be in transition. You may remember prior blog posts back in 2015 indicating that BWC was implementing a change from retrospective to prospective billing. This change, meaning that employers will be paying for worker’s compensation coverage in advance, is now upon us.

 

The change actually officially occurred on July 1, 2015, but many employers have not yet felt the impact because of the transition credit BWC provided to private employers last summer.

 

This year, employers will have to calculate and provide the True Up to BWC. True Up is a new process that requires employers to report their actual payroll for the previous policy year and reconcile any differences in premiums paid. On May 1, BWC will be mailing notice of estimated annual premiums for Policy Year 2016. On July 1, BWC will be mailing Policy Year 2015 True Up Notices. In order to maintain worker’s compensation coverage, as well as your participation in rating plans and discount programs, you must complete and submit the True Up Report by August 1, 2016. The Report must be completed even if your payroll for the Policy Year 2015 perfectly matches the estimate you receive from BWC.

 

 

As the transition progresses, Cors & Bassett will provide further information and guidance to assist you. Please contact David Schmitt at djs@corsbassett.com or by phone at 513-852-2587 if you would like to discuss this issue further.

Changes | Content & Methods of Providing Proposition 65 Warnings

Posted on Mon, Feb 02, 2015 @ 12:16 PM

by David J. Schmitt

David J. Schmitt

Any companies manufacturing or distributing products in California should be aware that changes to the content and methods of providing the required Prop 65 warnings are on the way. 

In January, California’s Office of Environmental Health Hazard Assessment (OEHHA) published two notices of proposed rulemaking regarding the State’s Proposition 65 warning regulations.

OEHHA proposes to repeal sections 25601 through 25605.2 of the California Code of Regulations (C.C.R.), title 27, and replace them with new regulations which govern the content of “safe harbor clear and reasonable” warnings, as well as the responsibility for and methods of providing such warnings, under Proposition 65. Among the changes proposed, the new regulations would require certain chemicals to be specifically identified in the text of a warning. The proposed regulations also include warning requirements specific to certain categories of products or facilities, such as prescription drugs, furniture, and enclosed parking facilities, among others.

OEHHA also proposes to adopt a new regulation authorizing the agency to establish a website “to collect and provide information to the public concerning exposures to listed chemicals for which warnin

gs are being provided.” If finalized as currently written, the new website regulation would require a product manufacturer, producer, distributor, or importer, or a particular business subject to Proposition 65 warning requirements, to provide to OEHHA, upon request, specific information regarding any product, listed chemical, potential exposure, and “any other related information that the lead agency deems necessary” for which a warning is provided. In a silver lining however, OEHHA expressly states that the proposed website regulation “is not enforceable by private plaintiffs,” in contrast to the warning regulations currently in effect and those being proposed.

OEHHA will conduct public hearings on both the proposed website and warning regulations on March 25, 2015, and will accept written comments until April 8, 2015.

OEHHA’s notices, statements of reasons, and proposed regulatory text are available here and here

Cors & Bassett will continue to monitor this rulemaking and will provide updates on the status of OEHHA’s proposed regulatory action. If you have any questions, please contact David Schmitt at 513-852-2587 or by email at djs@corsbassett.com.

California Proposition 65 | Warning Requirements for DINP Effective December 20, 2014

Posted on Thu, Dec 11, 2014 @ 10:36 AM

by David J. SchmittDavid J. Schmitt

Any company selling or distributing goods in California which contain any plastics should take special notice of this looming deadline.

On December 20, 2014, California’s Proposition 65 warning requirements for consumer, occupational, and environmental exposures to diisononyl phthalate (“DINP”) will take effect.  DINP is used as a PVC plasticize as well as in a variety of consumer products containing soft plastic or vinyl, including toys, fashion accessories, apparel, hardware products, and home goods. It is also present in some some rubbers, inks, pigments, paints, lacquers, coated fabrics, adhesives, and sealants. DINP is widely understood to have replaced other phthalates, such as DEHP, DBP, and BBP.

Manufacturers, brand owners, distributors, and retailers of products containing DINP will run the risk of being sued under Proposition 65 unless a clear and reasonable warning is provided for exposure to a Proposition 65 carcinogen or unless the regulated party can demonstrate that exposure from the product is below a level that would create a significant risk of causing cancer (a “no significant risk level,” or “NSRL”).

December 2013 Listing of DINP as Carcinogen

California’s Proposition 65 requires publication of a list of chemicals “known to the state” to cause cancer or reproductive toxicity.  On December 20, 2013, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) listed DINP as a carcinogen known to the state to cause cancer. OEHHA has not identified a  NSRL or safe-harbor level for exposure to DINP, so a regulated party whose product contains any amount of DINP risks liability unless it either conducts a study and exposure assessment that proves exposure from a given product is below the NSRL, or it provides a Proposition 65 carcinogen warning as outlined in the Proposition 65 regulations.  The Proposition 65 regulations also contain warning provisions for occupational and environmental exposures to listed chemicals.   

Proposition 65 Citizen Suits

Proposition 65 allows citizens acting as “private attorneys general” to bring suits to enforce the warning requirements.  But a citizen plaintiff must notify the prospective defendant and public prosecutors of its intent to sue 60 days before a suit may be filed.  On and after the December 20, 2014 warning effective date, we anticipate that many manufacturers, brand owners and retailers of consumer products sold in California will begin to receive 60-day notices for products that allegedly expose users to DINP.

Note:  Under the federally mandated Consumer Product Safety Improvement Act (CPSIA), DINP is restricted to maximum levels of 0.1% in mouthable toys and components and remains legal for use in non-mouthable toys and inaccessible components.

Cors & Bassett can provide further information and guidance to assist you. Please contact David Schmitt at djs@corsbassett.com or by phone at 513-852-2587 if you would like to discuss this issue further.

Tags: Consumer Product Safety Improvement Act (CPSIA), California Proposition 65, Warning Requirements for DINP

Private Employers | Prospective Billing for Worker's Comp Premiums Just Around the Corner

Posted on Tue, Dec 02, 2014 @ 02:34 PM

by David J. SchmittDavid J. Schmitt

The way you pay BWC for workers’ compensation coverage is changing. You may remember a prior blog post back in 2013 indicating that BWC was proposing a change from retrospective to prospective billing. This change, meaning that employers will be paying for worker’s compensation coverage in advance, is now upon us.

BWC is transitioning private employers to prospective billing on July 1, 2015. BWC believes that this effort will help it modernize its operations and provide better service to Ohio’s employers.

This switch to prospective billing impacts rating plan and program sign-up deadlines.

For the policy year beginning July 1, 2015, these deadlines are:

  1. Jan. 30, 2015 – group-retrospective rating, individual-retrospective rating, Deductible Program and One Claim Program;
  2. May 29, 2015 – Destination: Excellence programs.

In May 2015, private employers will receive estimated premium notices and certificates of coverage. Employers should review the certificates for accuracy and contact BWC if any of the information is incorrect. Each certificate will contain new language that says coverage is conditional upon payment of the premium.

In order to streamline the transition, BWC is providing a transition credit to private employers, as long as their worker’s compensation coverage is in good standing. Lapsed policies must be rectified prior to July 1, 2015, to receive the transition credit. You will receive an invoice from BWC for your September and October premium payment, which will be due Aug. 31, 2015. On that invoice, you will see a transition credit which will cover your premiums for July and August, 2015.

As the transition progresses, Cors & Bassett will provide further information and guidance to assist you. Please contact David Schmitt at djs@corsbassett.com or by phone at 513-852-2587 if you would like to discuss this issue further.

Tags: Bureau of Worker's Compensation, BWC

When is a "Like" Protected Activity?

Posted on Thu, Sep 18, 2014 @ 02:43 PM

by Jack B. Harrison

While the EEOC has conew facebook like buttonnsistently been reviewing employers’ social media policies to determine whether they violate employees’ rights under the National Labor Relations Act (“the Act”), the National Labor Relations Board (“NLRB”) recently got into the act with its decision in Three D, LLC (Triple Play), 361 NLRB No. 31 (2014).  Previously, an Administrative Law Judge for the NLRB addressed the issue of an employer’s social media policy in The Kroger Co. of Michigan v. Granger, case number 07-CA-098566.  Increasingly, both the EEOC and the NLRB are faced with applying a Depression era law to the very modern world of social media.  In Triple Play, the NLRB addressed both the limitations on employees when they post social media content that may be protected by Section 7 of the Act and whether simply clicking the “Like” button regarding social media content is protected activity under Section 7 of the Act.

In Triple Play, the employer, a bar and restaurant in Watertown, Connecticut, fired two employees after examining posts on Facebook that involved the employees, a former employee, and a customer.  The comments posted to Facebook were critical of the owners of Triple Play.  The comments were precipitated by employees concluding that the owners made an error in calculating the employees’ state tax withholding after the employees discovered that they owed Connecticut state taxes for 2010.  

The Facebook conversation began when a former employee Jamie LaFrance (“LaFrance”) posted the following:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!"

Additional comments followed from LaFrance’s post, including comments from a customer and a current employee of Triple Play.  In further comments, LaFrance stated that she planned to report the tax withholding mistake to the Connecticut “labor board.”  At some point during this exchange, Vincent Spinella (“Spinella”), a current employee, clicked the “Like” button related to LaFrance’s original comment.  At one point in the exchange, LaFrance posted the following comment regarding one of the owners:

Hahahaha he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks.

In response to this statement by LaFrance, Jillian Sanzone (“Sanzone”), another current employee, posted the following:

I owe too. Such an asshole.

Upon discovering this exchange on Facebook, the owners terminated both Spinella and Sanzone, who then challenged their termination.

In reviewing this case, the NLRB concluded that, depending on the context, an employee clicking on the “Like” button related to a comment on a social media site can constitute protected activity under the Act.  In Triple Play, the employer did not challenge the conclusion that the employees had engaged in concerted activity.  However, the employer argued that the comments at issue, including the “Like” of one employee, were not protected by Section 7 of the Act because they were defamatory and disparaging.  In reviewing this issue, the NLRB held that the appropriate test when analyzing communications posted on social media is whether the employee communications are related to an ongoing dispute between the employees and the employer and whether the communications are so disloyal, reckless or maliciously untrue that they are outside the protections of Section 7 of the Act.  The NLRB based its articulation of this test for analyzing communications on social media on its prior decisions, as well as two Supreme Court decisions.  MasTec Advanced Technologies, 357 NLRB No. 17 (2011). NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953) and Linn v. Plant Guards Local 114, 383 U.S. 53 (1966).

In applying this test in Triple Play, the NLRB determined that the comments at issue, including the “Like,” were related to an ongoing dispute between the employees and their employer and that they were not so disloyal as to place them outside the protection of Section 7 of the Act.  As the NLRB stated: “The comments at issue did not even mention the Respondent’s products or services, much less disparage them.”  The NLRB concluded that the Facebook exchange at issue in Triple Play was analogous to a conversation among employees that could possibly be overheard by an outside third party, rather than communications that were specifically targeted to the general public with the intent to harm the employer.

In its decision in Triple Play, the NLRB made clear that while the employee’s “Like” in this case was protected under Section 7, given the context, not every “Like” would be protected.  The NLRB focused on the specific context of the “Like,” determining that in this case, the “Like” was specifically directed to the initial post concerning the tax withholding, not to later statements made by the former employee that were arguably defamatory.  Thus, it would appear that the NLRB will look to the specific context of each “Like” in order to decide which specific post on social media the “Like” is directed.  Based on that analysis, the NLRB will then determine whether or not the specific post on social media to which the “Like” was directed is protected under Section 7 of the Act.

In light of the method of analysis used by the NLRB in Triple Play, employers should not conclude that an employee affirms or ratifies every statement in a discussion posted on social media simply by selecting “Like.” Instead, employers should look closely to see what specific post the employee has “Liked” or otherwise endorsed.  Additionally, before concluding that a comment posted to social media by an employee is defamatory regarding the employer, the NLRB appears to require proof that the comment was posted with “actual malice.”  In other words, in order to support a termination based on a defamatory comment about the employer on social media, the employer must prove that the employee made the comment knowing it was false or made the comment with a reckless disregard for the truth.  The NLRB also indicated in Triple Play that it will treat differently comments that disparage an employer’s products or services as opposed to comments that defame the employer or other workers personally.  Thus, employers should be very cautious, and certainly should consider consulting with counsel, prior to disciplining or terminating an employee based on the fact that an employee selected “Like” related to some comment on social media or posted some comment regarding the employer or other workers.

San Allen Litigation Claim Forms Are In The Mail

Posted on Wed, Sep 03, 2014 @ 07:21 AM

by David J. SchmittDavid J. Schmitt

This post is the latest, and perhaps the most important, follow-up to the long saga of the San Allen workers compensation litigation.

As you may recall the class in this litigation consists of Ohio employers who were not group-rated during some or all of the period of 2002-2008. The class prevailed in both the Cuyahoga County Court of Common Pleas and the Court of Appeals. Rather than continue to slug it out in the Ohio Supreme Court, the State and the plaintiff class in the San Allen v. BWC litigation recently reached a tentative settlement in the amount of $420 Million Dollars.

Proof of Claim forms have now been mailed to all members of the class and companies should receive it shortly if they have not received it already. It is essential that employers fill out this form and return it by October 22, 2014 if they wish to make a claim. Although somewhat reduced by the settlement, the potential recovery for many employers is still quite substantial. The information accompanying the form also provides a website address that employers can visit to verify the amount of their claims.

A Final Approval Hearing for the settlement is scheduled in front of Judge McMonagle of the Cuyahoga County of Common Pleas on November 19, 2014.

The Proof of Claim form asks for a company representative to certify certain information and to provide banking information so that restitution funds can be electronically transferred.

The attorney’s at Cors & Bassett are available to assist any employers who may have questions regarding the litigation or completing the Proof of Claim form. Please contact David Schmitt at 513-852-2587 or by email at djs@corsbassett.com.

Tags: Ohio Workers' Compensation, San Allen Litigation

Federal Court Hands NCAA A Setback Allowing Some Payments to College Athletes

Posted on Tue, Sep 02, 2014 @ 02:51 PM

by Jack B. HarrisonJack B. Harrison

In a victory for student-athletes and in a setback for the NCAA, the United States District Court for the Northern District of California recently held that NCAA rules prohibiting major college football and men’s basketball student-athletes from receiving compensation for the use of their names, images and likenesses in video games and broadcasts violated federal antitrust laws.  Judge Claudia Wilken’s ninety-nine page opinion followed a three week trial which took place in June of this year. 

In the case, the plaintiffs, a group of athletes led by former UCLA basketball player Ed O’Bannon, alleged that the NCAA violated federal antitrust laws by colluding with universities and with athletic conferences to ensure that student-athletes could not receive any share of revenues that resulted from the use of their images in video games and broadcasts.  While the plaintiffs waived their right to seek damages in the case in order to be able to have the case heard by a judge, rather than a jury, Judge Wilken issued an injunction ordering the NCAA to cease enforcing rules that prohibited student-athletes from receiving funds that resulted from the use of their names and images.  In ordering the injunction, Judge Wilken specifically held that “[t]he challenged NCAA rules unreasonably restrain trade in a market for certain educational and athletic opportunities offered by NCAA Division I schools.”

In her ruling, Judge Wilken did hold that the NCAA was permitted to establish a cap on funds that could be paid to student athletes for the use of their names and images.  However, she indicated that the NCAA must permit at least $5,000 per student-athlete for every year of competition at major football and basketball schools.  Under the terms of the injunction issued by Judge Wilken, these funds could be paid into a trust by the school for every year that a student-athlete remains academically eligible to compete.  In practical terms, this would mean that student-athletes at major football and basketball schools could potentially receive no less than $20,000 when they leave school, so long as they were academically eligible for four years.  Judge Wilken indicated that she established the $5,000 cap in order to address fears expressed by witnesses on behalf of the NCAA who testified about the economic result of allowing large payments to student-athletes.  As Judge Wilken stated in her opinion, “the NCAA’s witnesses stated their concerns about student-athlete compensation would be minimized or negated if compensation was capped at a few thousand dollars per year.”

In further limiting the scope of her decision, Judge Wilken refused to hold that student-athletes should be allowed to receive funds for endorsing specific commercial products.  In so holding, Judge Wilken stated, “[a]llowing student-athletes to endorse commercial products would undermine the efforts of both the NCAA and its member schools to protect against the ‘commercial exploitation’ of student-athletes.”

Judge Wilken specifically held that her decision would not have an immediate impact on colleges and student-athletes.  The decision indicates that the court’s ruling regarding student-athletes receiving funds for the use of their names and images in video games and broadcasts would not take effect until the start of the next football and basketball recruiting period, having no effect on prospective football or basketball recruits before July 1, 2016.

While this decision would seem to erode the strong control that the NCAA has historically exercised over both schools and student-athletes, it is likely that the NCAA will appeal Judge Wilken’s ruling.  However, this decision represents a continued effort by student-athletes to be compensated in some fashion for their playing efforts, particularly when the schools for which they are playing are reaping millions of dollars in revenue from those athletic programs.  These legal developments should be of keen interest to all fans of college sports.  We will provide updates as other related developments occur.

Tags: Federal Court, NCAA