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What The Hurt Locker Can Teach Us About Employment Law

Awareness is Key in Avoiding Ageism Litigation

Law You Can Use. Employee Asks: “How do I know if I’m entitled to overtime pay?”

Telecommuters: the New Horizon for Unpaid Overtime Claims

New Times Sued Again. Former employees say 'SF Weekly' publisher violated labor laws

Former Workers file Class Action Suit Against Village Voice Media and New Times Media

Engineer Terminated for His Age Age Bias, Retaliation Matters Gets $7.8M Verdict

Summit Workers' Suit Settled

Fighting for 'the little guy'

What The Hurt Locker Can Teach Us About Employment Law
Cleveland Metropolitan Bar Journal, May 2010
By: David Young

Last month the Oscar for Best Picture was awarded to The Hurt Locker which highlighted the challenges faced by soldiers returning to civilian life after active service in the military.

In this film, the lead character, Sergeant First Class William James, becomes the team leader of a U.S. Army Explosive Ordinance Disposal Unit. His job involves wearing a bombsuit and disarming IEDs – Improvised Explosive Devices. This important story follows Sergeant James’ service in Iraq as he attempts to dismantle bombs putting his life at risk on a daily basis. The film tells the story of the incredible emotional toll placed upon these soldiers while serving overseas. The scenes involving Sergeant James’ service in Iraq are intense, riveting, and breathtaking.

Later in the movie, the viewer follows Sergeant James’ return home to his wife and young child. There we see Sergeant James struggle with the seemingly routine tasks of suburban civilian life. He toils with the mundane such as grocery shopping. The film shows Sergeant James staring into the shelves of the cereal aisle, disengaged and lost. The most simple of civilian activities seem impossibly overwhelming to Sergeant James.

The struggle experienced by Sergeant James upon his return to the United States is the difficult process of reintegration. It is the adjustment soldiers face when attempting to reconnect with family, community, and friends.

As a Nation, we recognize this phenomenon and have attempted to legislate a number of protections for our returning soldiers. These protections include very important legislation relating to a returning soldiers re-entry into the civilian workforce.

The Uniformed Services Employment Reemployment Act (“USERRA” — 38 U.S.C. 4301) provides extensive rights to soldiers returning home from Iraq and Afghanistan. At its core, USERRA provides that employers may not allow an employee’s active military service, potential active military service, or imminent active military service to enter the decision-making process.

The purpose of USERRA is to expand the rights of employees returning to work from uniformed service by entitling them to positions with their former, pre-service employers, complete with all of the seniority, status, pay and benefits that the service member would have accrued had they never entered the service on active duty.

Former Secretary of Labor, Elaine L. Chao, stated that USERRA was a “major step in ensuring that the brave men and women who are risking their lives to preserve freedom and democracy have their jobs and benefits protected when they return home.” The regulations will “spell out the rights of our returning service men and women and the responsibility of employers to honor their service.”

In general, a returning employee is entitled to reemployment in his or her original position unless the employer’s circumstances have changed as to make reemployment “impossible” or “unreasonable.” The hiring of a replacement is insufficient evidence of impossible or unreasonable circumstances.

Further, USERRA applies the “escalator principle” which generally means that, upon reemployment, the employee is supposed to step back onto the “seniority escalator” not just at the place where they disembarked, but in the position they would have naturally occupied if it had not been for the employee’s military service.

Essentially, if an employee would have ordinarily received a raise or a promotion during his or her time of service, USERRA requires that the employee receive the raise or promotion upon reemployment. And, if the employee is not qualified for the new position, the employer is required to make “reasonable efforts” to attempt to train or otherwise qualify the employee for the new position.

Conversely, if an employee’s job has been eliminated and such elimination would have taken place even if the employee had not been in active service, USERRA does not prevent the employer from eliminating the position.

USERRA also disposes of the “employment at will” doctrine for returning soldiers.
Upon reemployment, an employee who has been on active duty for more than 30 days becomes a “for cause” employee, terminable only for good cause. For employees who served more than six months, the “for cause” period is a year following reemployment; for an employee who served between thirty days and six months, the “for cause” period is six months.

Returning soldiers are also entitled to FMLA leave, if needed, as though they had never stopped working. The Department of Labor has issued a memorandum stating that the returning employee must be granted his or her FMLA leave if they would have worked 1,250 hours within the preceding 12 months but for the employee’s service in the military.

As for benefits, if an employee retirement plan has a particular vesting schedule, the returning employee must be credited with the time spent in active service towards that schedule. If employee contributions are generally required, USERRA provides for a “makeup period” during which the employee can make up for missed contributions (equal to three times the employee’s length of service, up to a five-year cap).

Finally, if a returning soldier comes home and finds that his company has been acquired, the successor corporation owes the same rights to the soldier as though it were the original corporation.

In terms of its application, USERRA is silent as to the enforceable statute of limitations. However, in Risner v. Haines, Sixth Circuit District Judge Lesley Wells of the Northern District of Ohio, Eastern Division, recently held that in certain circumstances USERRA claims may be subject to a four-year statute of limitations.

In terms of damages, a prevailing plaintiff may be entitled to compensation for any loss of wages or benefits caused by the employer’s violation of the Act. Additionally, a court may award the individual plaintiff reasonable attorney fees, expert witness fees, and other related litigation expenses. Furthermore, where the violation is considered willful, the court may award liquidated (double) damages. The statute does not define “willful,” but courts generally use the same willfulness standard applied under the Age Discrimination in Employment Act. The provision for liquidated damages applies to cases against states, political subdivisions of states, and private employers, but does not apply to cases against federal agencies as employers. However, the statute does not provide for punitive damages.

There are a number of common mistakes made by employers when USERRA issues arise.
First, USERRA applies to every employer, regardless of size or business sector. There is no minimum number of employees threshold as in many other employment laws.

Second, USERRA does not only apply if an individual is called to active duty. USERRA applies at anytime there is performance of a duty on a voluntary or involuntary basis in a uniformed service under competent authority.

Third, all employers must grant military leave on request of a service member involved. Employers may ask for documentary proof that the leave is military, which often comes in a letter from the unit’s commander. Leave can be for required training as well as for extended service.

Fourth, USERRA is not limited to absences up to 5 years. There are some military specialties which require an individual to serve more than 5 years due to the amount of necessary training. These individuals do have protections under USERRA.

Fifth, an employee is not only entitled to be returned to the position they had before their absence but that employee is also entitled to the position they would have likely attained had they not gone away to serve. This means any raises, promotions or other career advancement which the employee would have received had he/she not served, the employee is entitled to receive upon their return.

Sixth, the employer does have to place the employee in the escalator position even if they are not currently qualified for it. The employee must be reemployed in the escalator position or a position of like seniority, status and pay. The employer must make reasonable efforts to assist the employee to become qualified for the position.

Seventh, a severance agreement cannot waive an employee’s rights under USERRA.

In sum, returning military personnel like Sergeant James who are attempting to reintegrate into civilian life enjoy strong protections upon their return to the workforce.

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Crain’s Cleveland Business
Awareness is Key in Avoiding Ageism Litigation
April 16, 2007
By: Eileen Beal

Small and midsize businesses can be particularly vulnerable to age discrimination charges, according to a recent Kelly Services Inc. survey.

The November report showed that it’s not the big companies that tend to get sued or pay settlements to avoid going to court, it’s smaller businesses specializing in fields such as legal and financial services, engineering and information technology.

“They aren’t able to hire the expertise of an HR person, so they lay off people hoping to save money,” said nationally-recognized age discrimination lawyer Avery Friedman, who has testified before Congress several times on workplace aging issues. “Then, because they have to defend themselves, they end up spending more money than they’d have saved,”

In many cases, human resources folks aren’t the only people who aren’t being consulted.
“Far too often, businesses don’t consult attorneys who specialize in employment issues before they do layoffs,” said Susan Chermonte, a human resources specialist with the Mayfield Heights-based Employers Resource Council.

But, according to attorneys and human resource officials, there are ways for a business to protect itself against these types of claims:

The first step to avoid litigation isν to develop an understanding of workplace age discrimination.

“It’s any discriminatory act against a person 40 years of age and older. It’s prohibited by federal law (the Age Discrimination in Employment Act), and it’s prohibited by Ohio civil law,” said Sharona Hoffman, professor of employment law at Case Western Reserve University School of Law and a former Equal Employment Opportunity Commission lawyer.

Unfortunately, according to Mr. Avery, “employers usually learn about age discrimination the hard way, and they’ve paid out billions to learn.”

Companies also should take a thorough and critical look at their firm’s culture and root out policies, practices and programs that could be construed as discriminatory.

Be especially on the lookout, said Ms. Chermonte, for workplace practices that don’t look discriminatory on paper, but have what lawyers call “disparate impact” on older workers.

For instance, team-building retreats that have employees rock climbing or jaunting off to the Lake Erie islands to strategize all day and party all night may put your company on the top-places-to-work list, but they don’t have the same appeal to a company’s married-with-children 40- and 50-year-olds as they do to the company’s single 20- and 30-somethings.

Review and revise recruitment, screening and hiring materials. “Definitely delete the section in the job application that requests date of birth or year of graduation because that creates a timeline … (and) create a standard set of questions — that focus on skills and experience — that are used with all potential hires,” Ms. Chermonte said.

Watch the wording in job ads, too. “Don’t say you are looking for a recent grad. That’s the same thing as asking for graduation information. Instead, say the position is an entry-level position,” she said.

Review benefits packages, retirement policies and employee promotion, training, performance and evaluation forms to make them age neutral. “The days of evaluations saying things like ‘not adaptable to change’ are at an end. That’s not documenting employee performance, it’s putting (age discrimination) in writing,” said David Young, a Cleveland-based employment lawyer.

Review, or in some cases create, anti-age-discrimination materials and post them where employees will see them every day.

Information must be clear on what is prohibited in the workplace; remedies and consequences for stepping over the line; the standardized procedure for reporting discriminatory incidents; and include a grievance process that facilitates communication and a resolution to the problem.

“So many of these (cases and settlements) could be avoided if people could just communicate,” said Mr. Friedman.

The final step to avoiding age discrimination in the workplace is a formal and companywide awareness and education program.

Workplace programs don’t just put everyone on the same page, said Ms. Chermonte. “They give employees the opportunity to see things from other points of view, and they help people realize that ageism in the workplace isn’t just something that affects people in their 40s and 50s, it’s going to affect them in the future, too.”

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Daily Reporter
Columbus Ohio
June 27, 2007
By: David A Young

Law You Can Use
Employee Asks: “How do I know if I’m entitled to overtime pay?”

In Ohio, and throughout the United States, with only some exceptions, overtime, or “time and a half,” must be paid to employees who work more than 40 hours a week. According to the Department of Labor, more than 130 million American workers are entitled to overtime pay under the laws of the Fair Labor Standards Act.

An employee can be covered by the FLSA through “enterprise coverage” or “individual coverage.” Most employees qualify for “individual coverage” as long as the work of the individual or the “work” of the organization regularly involves commerce between states, or handling, selling or otherwise working on goods or materials that have been moved in or produced by such commerce. This is known as “interstate commerce” and it affects nearly every business in the United States.

THE FLSA also covers certain businesses or enterprises. This is known as “enterprise coverage.” TO be covered under FLSA, the business or enterprise must: (a) be government agency or a hospital or other business that provides medical or nursing care; (b) have at least two employees; (c) have an annual sales volume of at least $500,000. Typically, every government agency and healthcare institution is covered by the FLSA.

Finally, many employees operate under the wrong impressions that, if they receive a salary or have the word “supervisor” in their job title, they are not entitled to overtime pay. In fact, many salaried employees, and even those with “supervisor” titles, may be entitled to receive overtime pay.

Q: Am I entitled to time and one-half pay if I travel?

A: Time you spend traveling on company business during normal work hours is considered “compensable” work time. Your employer does not have to pay, however, for time you spend in home-to-work travel or for activities you may perform, such as running a personal errand on the way to work, that are incidental to your commute.

Further, whether or not an employee drives a company-owned vehicle makes a little difference. Assuming the employee’s travel is within “normal” commuting range of the employer’s business and the vehicle’s use is covered by an employer/employee agreement, the employer does not have to pay for these commuting hours because the hours generally are not considered to be “hours worked.”

Finally, time spent working while traveling can be compensated. Travel on the weekends is also compensated if the employee’s typical work week is Monday through Friday. Also, time spent at a seminar or training, including time spent traveling to seminars and training, is typically compensable.

Q: Am I entitled to overtime is I am on call or waiting at home at night for my employer to call?

A: Yes, you are entitled to overtime pay when your employer requires you to wait at home or at the worksite to respond to calls in person or through telephone or pager. You are entitled to be compensated for time spent responding to calls, including time spent at home on he telephone or at your computer responding to calls or e-mails.

There is no clear-cut rule, however, about whether you can be compensated for time waiting for work or for work instructions. Courts look at the following factors to decide if such time should be compensated, including: (a) the average number of calls you responded to during the on-call period; (b)the required response time, such as the amount of time you must be at the work site after being called in; (c) whether you are subject to discipline for missing or being late to a callback; (d) the extent to which you are able to engage in other activities while on call; (e) the nature of your occupation.

Q: Am I entitled to overtime if I am required to go to work early or have to wait at work before performing my job duties?

A: You are entitled to compensation for time spent waiting while on duty, particularly if it is on the employer’s premises, is unpredictable and/or is or a relatively short duration. If for example, you must be at your work 15 minutes early, you are entitled to compensation for that 15 minutes.
In addition, “waiting” is what certain employees are hired to do. For example, fire fighters, emergency workers, as well as some truck drivers and repair service people are hired to be on hand until their services are needed. These individuals are also entitled to overtime pay.

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Cleveland Bar Journal
May 2007

Telecommuters: the New Horizon for Unpaid Overtime Claims
By: David A. Young

A welder in a factory skips his lunch hour to finish a job that his employer needs to get out for a customer. A pharmaceutical rep who works from home outs in 45 hours for the week. Which one of these workers is entitled to overtime pay?

Surprisingly, the answer may be both.
It likely comes as no surprise that the Fair Labor Standards Act (FLSA) requires the employer to pay the welder 1.5 times his regular rate of pay for every hour more than 40 that he works. However, the pharmaceutical rep working from home may similarly be entitled to overtime pay.

Recently, a number of class action claims have been filed nationwide that challenge the traditional notion of the employer/employee relationship and extend the FLSA beyond that which was initially contemplated by the legislators who first contemplated and drafted the law.

Passed into law in 1938 after the Great Depression, the FLSA was designed to protect employees from employers who were taking advantage of the tight labor market and exposing workers to difficult conditions and onerous hours. It certainly seems an unlikely proposition that Congress could have anticipated the shift in the traditional employee/employer relationship being seen today. While advances in technology are always contemplated, who could have predicted the virtual office, email, fax machines or paperless office that has allowed millions of Americans to work from home?

According to a recent In-Stat/MDR study, the number of telecommuters in the U.S. will increase from 44 million in 2004 to 51 million by 2008. Further, two-thirds if all Fortune 1000 companies have instituted telecommuting programs and 82 of Fortune’s “100 Best Companies to Work For” provide telecommuting opportunities today. These numbers should continue to increase based on a recent study that suggests that nearly 80 percent of U.S. workers prefer to telecommute.

As such, the traditional workplace has changed dramatically since 1938. With the change come new challenges to traditional unpaid overtime claims and, in particular, how employees will bring these claims and how an employer can defend himself from such claims.

Recently, there have been number of lawsuits brought by telecommuters throughout the country. Through this litigation, employees are also challenging what types of jobs are and are not considered exempt from the overtime pay requirements of the FLSA.

In California, insurance claims adjustors who work or worked out of their home office have brought claims for unpaid overtime. In the matter of In re Farmers Insurance Exchange, Claims Representatives Overtime Pay Litigation, a California appellate court is currently considering a class action matter brought by auto insurance adjusters against Framers Insurance. Similarly, a Colorado federal court is considering similar claims against American Family Insurance.

Pharmaceutical sales representatives are also asserting similar claims. There are currently two overtime cases pending against Novartis Corporation by telecommuters in New York district courts. In these matters, the pharmaceutical representatives are claiming they are no longer exempt from overtime pay because they are essentially “marketing representatives” who do not actually sell products, but rather manage accounts.
These cases appear to increase prevalence and applicability in the information technology (IT) sector as more and more computer savvy generation Y employees enter the telecommuting job market.

Telecommuting overtime claims can result in significant awards to the employees. For example, one of the suits against Framers Insurance resulted in a $90 million jury verdict and a $210 million payout.
Similarly, recent settlements against Computer Sciences Corporation ($24 million) and IBM ($65 million) suggest that corporations need to be very careful in how they deal with the telecommuting employee.

Common “Mistakes” Employers Make
Employers cannot take an out of sight, out of mind approach to their telecommuting employees. The law of the FLSA, or any other traditional employment law, is no less applicable to the telecommuting employee than it is to the traditional office worker. The FLSA does not distinguish between work in an office and work performed away from the premises or at home. A telecommuting employee is just as likely to be misclassified as exempt from overtime as any other employee.

The following are some “mistakes” commonly made by employers of telecommuters which may expose then to liability.

First, the FLSA requires that an employer maintain payroll records that accurately reflect the total hours worked for each workday and workweek. IN fact, the failure of an employer to maintain an accurate record of hours worked can be used by an employee as evidence of “willfulness.” This is extremely important because if an employee can establish that the employer’s failure to pay overtime is/was willful, an employee is permitted to recover unpaid overtime for a three-year period as compared to the two-year period for non-willful violation.
For an onsite employee, maintaining time records is usually a matter of requiring the employee to punch a time clock or a having a supervisor observe the employee’s hours and document the same accordingly. However, for a telecommuting employee, this issue becomes more complicated and exposes the employer to greater potential liability because of the autonomy given to telecommuting employees.

In an effort to avoid unnecessary exposure, an employer should provide clear written guidelines to telecommuting employees about the manner in which to record hours and should further devise a method of confirming the hours reported.

Second, employers often require the telecommuting employees to report to the employer’s worksite, but so not compensate then for this time. While it is true that travel time to and from work does not generally constitute hours worked under the FLSA, that is not always true for the telecommuting employee. If, for example, the travel occurs after an employee’s first principal activity in the workday, the “continuous workday” rule will arguably render that travel compensable.

As an example, if the employer is requiring the telecommuting employee to attend a meeting, or training at the employer’s worksite, that time is likely compensable; and, therefore, said time must ne taken into consideration when making calculations for overtime pay.

Third, employers may expose themselves to overtime liability where they have required the telecommuting employee to be “readily available” or “waiting for work” during the day. Employers may also expose themselves to liability where they advise employees that they have to be ready to work, but will not pay those employees until the work actually commences.

Again, an employer should provide a clear written agreement to the employee regarding start time and compensation to avoid potential liability in this area.

Fourth, the Americans with Disability Act (ADA) can create further exposure for the employer. The ADA requires an employer to accommodate an employee’s disability. Many courts have held that telecommuting can be a form of reasonable accommodation provided the disabled employee can perform the essential functions of the job.

This can create liability for the employer in two ways; (a) an employer cannot entirely “outlaw” or “ban” telecommuting in order to avoid any of the potential liability outlined above; (b) an employer can expose itself to liability where it refuses a disabled employee’s request to telecommute when it has already permitted a similarly situated non-disabled employee’s same request.

Our ever-changing lives and recent technology have created a new horizon in which telecommuting is booming. With this new horizon come important changes to the traditional workplace that demands the attention of both the employer and employee.

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The San Francisco Bay Guardian
New Times Sued Again
Former employees say 'SF Weekly' publisher violated labor laws

By Tim Redmond

Twelve former employees of a Cleveland alternative paper have filed a class-action suit in Ohio against the publisher of the SF Weekly and Village Voice Media, alleging that they were fired illegally when the two newspaper chains conspired to shut down the paper.

The class-action suit, filed in the Ohio Court of Common Pleas Aug. 9, comes in the wake of a deal between New Times and VVM that ended alternative-newspaper competition in Los Angeles and Cleveland. It's the latest legal salvo in a story that has attracted national attention and raised serious issues about the consolidation of ownership in the alternative press.

New Times and VVM had been fighting for advertising and market share in the two cities until Oct. 2, 2002, when the companies announced an unusual agreement: New Times agreed to shutter its New Times LA, and in exchange, VVM agreed to close the Cleveland Free Times. That gave both companies a monopoly in the market: the Cleveland Scene, a New Times publication, became the only alternative weekly in that city, and the LA Weekly, owned by VVM, had Los Angeles to itself [“New Times Nailed,” 01/29/03”].
In the process, many employees of the Free Times and New Times LA lost their jobs (although some were transferred to other papers in the chains).

The Justice Department and the attorneys general of Ohio and California charged the two chains with violating the Sherman Antitrust Act, and on Jan. 27, 2003, New Times and VVM agreed to terminate the illegal scheme and sell the assets of the closed papers to qualified buyers who could reenter the markets. The Free Times is now back in business under new ownership, and three new alternative weeklies are taking on VVM in L.A.
But according to Cleveland lawyer David A. Young, the workers who were fired when the two papers closed their doors were terminated illegally. Both Ohio and California allow workers who lose their jobs as the result of an illegal act by their employers to sue for damages, he told us.

"It's a slam-dunk violation," he said. "Both companies admit the deal to close the papers was unlawful."
Young is seeking class-action certification, which would allow him to represent as many as 100 former New Times and VVM employees who he estimates may have been affected by the deal. The damages, he said, could be "well into the millions of dollars."

Young, who specializes in labor law, said the behavior of VVM and New Times was "typical of what's wrong with corporate America. They have no regard for their employees."

New Times owns 11 alternative weeklies, including the SF Weekly and the East Bay Express. VVM owns six.
David Eden, former editor-in-chief of the Cleveland Free Times and currently managing editor of Cleveland's CBS affiliate, WOIO-TV, e-mailed us a statement outlining his complaint: "Two years ago New Times and Village Voice Media colluded to swap markets so each could have a monopoly alternative newspaper in Cleveland and Los Angeles. That action, which violated U.S. and state antitrust laws, caused about 50 people to lose their jobs in Cleveland, some of whom lost their homes, had their savings wiped out and caused other havoc in their lives. This is their chance ... our chance ... for justice to be done."

New Times executive editor Michael Lacey, chief executive office Jim Larkin, and legal counsel Steve Suskin did not respond to our requests for comment. VVM released a statement saying, "Village Voice Media believes this suit is without merit and intends to defend it vigorously."

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Press Release
Former Workers file Class Action Suit Against Village Voice Media and New Times Media
Cleveland, Ohio, August 9, 2004:

On October 2, 2002, every employee of The Cleveland Free Times and the Los Angeles-based New Times LA was fired without warning. Their terminations were the result of admittedly unlawful anti-trust activity designed to eliminate competition between parent corporations Village Voice Media and New Times Media in the Cleveland and Los Angeles markets.

Twelve former employees of The Cleveland Free Times have filed a class action lawsuit in the Cuyahoga County Court of Common Pleas in Cleveland, Ohio for wrongful termination, conspiracy, and intentional malfeasance. The lawsuit is filed on behalf of all Cleveland and Los Angeles employees that were terminated as a result of the anti-trust violations.

Prior to October 2002, Village Voice owned The Cleveland Free Times and LA Weekly which competed directly for advertisers and readership with The Cleveland Scene Magazine and New Times LA which were owned by New Times.

In September 2002, Village Voice and New Times began discussing how they could raise advertising rates through the elimination of competition—a clear-cut violation of the Sherman Anti-Trust Act.

On October 2, 2002, Village Voice and New Times executed a written agreement whereby New Times agreed it would discontinue its publication of New Times LA in exchange for Village Voice discontinuing its publication of The Cleveland Free Times. New Times also received $9 million cash in the transaction. By so doing, each would have a monopoly on newsweeklies in Cleveland and Los Angeles.

That same day every employee of The Cleveland Free Times and New Times LA was fired.
On January 27, 2003, the United States Department of Justice filed an anti-trust complaint in Cleveland, Ohio alleging that the agreement to stifle competition and create monopolies in Cleveland and Los Angeles constituted a per se violation of the Sherman Anti-Trust Act. That same day, Village Voice and New Times agreed to a proposed consent decree which required them to terminate their illegal market allocation agreement, to sell the assets of the shuttered newsweeklies to new market entrants, and to allow advertisers to terminate their contracts.

The Attorney Generals of the States of Ohio and California filed parallel state actions alleging anti-trust violations. Both Village Voice and New Times admitted guilt for their roles in the state actions without a trial or hearing.

No provisions were made in any of the lawsuits by the Courts for employees who lost their jobs as a result of the unlawful scheme to terminate employees and eliminate competition. Because of this, the employees filed their lawsuit seeking compensation for back wages and punitive damages as a result of their termination.
The employees are represented by The Law Offices of David A. Young, LLC of Cleveland, Ohio.

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Ohio Lawyers Weekly
Engineer Terminated for His Age Age Bias, Retaliation Matters Gets $7.8M Verdict
May 19, 2003

In August 2000, Thomas Sadowski was terminated from his engineering positions at Philips Medical Systems, along with three other workers from his department – all of whom were 54 years of age or old.

Despite the company’s policy of transferring laid-off workers into other open positions—at the time of Sadowski’s termination the company had nearly 20 open engineering positions – Sadowski’s requests to be rehired were denied. Moreover, his immediate supervisor testified that Sadowski was a good engineer who had not violated any company policy at anytime during the 12 years they worked together.

Consequently, Sadowski alleged that Philips was in violation of Ohio laws against age discrimination when it fired him and subsequently refused to transfer him to another open position.

A jury of seven women and one man determined Sadowski’s claims to be untrue. It awarded him $1.765 million in compensatory damages and $6 million in punitive damages.

Type of Action: Age discrimination and retaliation
Type of Injuries: Economic and non-economic loss
Court/Case Number/Date: Cuyahoga County Court of Common Pleas/No. 477154/March 7, 2003
Caption: Sadowski v. Philips Medical Systems (Cleveland) Inc.
Judge, Jury or Arbitrator: Jury
Name of Judge: Bridget M. McCafferty
Verdict, Settlement or Arbitration Award: $7.765 million verdict ($1.765 million compensatory and $6 million punitive)
Special Damages: N/A
Last Demand: $375,000
Last Offer: $40,000
Allocation of Fault: N/A
Insurance Carrier: None
Attorneys for the Plaintiff: Christopher P. Thorman, Amy S. Glesius and David A Young, Cleveland.
Plaintiff’s Experts: James E. Zinser, Ph.D., Oberlin

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The Akron Beacon Journal
Summit Workers' Suit Settled
Thursday June 20, 2002
By Marilyn Miller

Summit County has agreed to pay $120,000 to two longtime workers who charged the county with wage discrimination, sexual harassment and job retaliation.

The women, Katy Hatton and Kathleen Odum, claimed in a lawsuit in Summit County Common Pleas Court in 1999 that they were paid substantially less than male co-workers in the Department of Jobs and Family Services.

Legislation to provide money to settle the suit and pay the money was introduced to the County Council on Monday.

According to court records, Odum has worked for the county since 1977 and Hatton since 1972. Both claim they were paid less than male co-workers. Hatton also accuses her former supervisor, John Keenan, of sexually harassing her. She contends Keenan would "make comments on other women and their physical appearance, about how they dressed or what they looked like or that type of thing. He would make derogatory comments about women in general." She also accused him of touching her. In a sworn statement in court files, she accused Keenan of targeting her specifically.

She said he once told her: "You look like a dyke. You should let your hair grow long because that's what we men love." Hatton also alleged Keenan retaliated against her - by transferring her to another position - because she helped in an FBI investigation against him and his boss at the time, William Hartung. According to court documents, she was Keenan's chief assistant in his dealings with contractors with the county. He was convicted of using his position to help a consultant acquire unbid county work and of collecting bribes in the process.

He was sentenced to 15 months in prison for bribery, conspiracy and tax evasion. In all, seven people who worked in the former county administration of Tim Davis were indicted.

The women, who both still work for the county, initially filed discrimination complaints with the Ohio Civil Rights Commission and Equal Employment Opportunity Commission, which found enough merit to authorize filing suit. Although the legislation to set aside the money is pending before council, the court filing indicates the case has been settled.

Summit County Executive James B. McCarthy said the pay structure in the department formerly headed by Keenan was revamped last year to help bring pay scales more in line with comparable duties. Assistant County Prosecutor Anita Davis said the county could not disprove the allegations because there is no one who can be called to court to dispute the claims.

Hartung is still in prison. County officials said they didn't want to call Keenan, who is out of prison but has suffered from a number of medical problems including cancer, diabetes and obesity.
"We inherited the suit and did not want to rehash the past," Davis said. "We're not saying the allegations were true, or that they had no merit in their case. We just couldn't tell why the pay was unequal and couldn't prove one way or another who said what without calling any witnesses. And our key witnesses were not available."
Hatton and Odum were represented in the matter by Attorneys David Young and Nancy Grim.

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The Record-Courier
Ravenna, Ohio

Fighting for 'the little guy'
Sunday, January 21, 2001
By Marly Kosinski

Most attorneys start small and work their way up. Lawyer David Young said he prefers working for the 'little guy' and the change has made all the difference in his career satisfaction.

Young has been practicing at 209 S. Chestnut Street since coming from a large firm in Cleveland.
"I wanted a smaller practice," Young said.

He and his wife, Marilena, live in Twinsburg. She is an attorney in Cleveland.
Young said his father worked for the city of Aurora and his brother is a firefighter in Streetsboro, so he was familiar with the area before opening his Portage County office. He has lived in and around the Cleveland area his whole life.

His specialty is plaintiff's employment law, including sexual harassment cases, discrimination cases and complaints involving the Family Medical Leave Act.

Young graduated from Walsh Jesuit High School and earned a bachelor's degree from Miami of Ohio. He received his law degree from Cleveland Marshall College of Law.
"I like helping people."

That's why I set out to do this. I am usually representing the little person as opposed to the big corporations like I did at my previous job," Young said.

He said being in business for himself is completely different from working for a large legal firm, especially coming to a new area.

"My priorities have changed. All is used to worry about was how many hours I was billing. Now I have to worry about paying the rent, paying the utilities and marketing myself," Young said.

He said most of his clients are referred to him by other attorneys who may not be capable of handling employment-related cases.

"It's good having a specialty like this because I can get more referrals from attorneys who are general practice, but I also don't have a steady stream of clients like they do," Young said. "So it's a double-edged sword."
Young publishes a quarterly newsletter called "The Employee Rights Bulletin" which highlights major cases and issues in his field.

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resources
Below is a list of links to useful websites regarding employment and labor law.

Equal Employment Opportunity Commission

Ohio Civil Rights Commission

Workplace Fairness

Ohio Employment Lawyers Association

National Employment Lawyers Association

Family Medical Leave Act

Americans with Disabilities Act

National Labor Relations Board

Discrimination & Harassment Attorney testimonial
david young law address