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In the case of State ex rel. Cleveland v. Russo, Slip Opinion No. 2019-Ohio-1595, the Ohio Supreme Court held that a common pleas court patently and unambiguously lacked jurisdiction over a dispute where the matter only involved an alleged unfair labor practice by an employer.

This case involved a dispute between a public employer and a union over the public employer’s desire to shift schedule hours without negotiating with the union. The union filed an unfair labor practice with the Ohio State Employees Relation Board (“SERB”) and sought an order from the common pleas court to prevent the shift schedule change from going into effect. The common pleas court granted the request and ordered the public employer to stop the shift schedule change. In response, the employer petitioned the Ohio Supreme Court to prohibit the common pleas court from enforcing its order arguing that SERB has exclusive jurisdiction over unfair labor practices.

The Supreme Court held that SERB has the “exclusive jurisdiction over all matters arising from rights created by [R.C.] Chapter 4117” such as unfair labor practices. Russo at ¶ 7. While the Supreme Court also held that, “[i]f a party asserts rights that are independent of R.C. Chapter 4117, the party’s complaint may properly be heard in common pleas court;” the Supreme Court concluded that, in this case, “the union’s claims arise out of rights that are set forth in R.C. Chapter 4117 relating to hours” and, therefore, the common pleas court lacked jurisdiction in this case. Russo at ¶ 14.

To read this case, click here.

Authors: Matthew John Markling, Patrick Vrobel, and John T. Sulik, Jr.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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In the cases of State ex rel. Seabolt v. State Hwy. Patrol Retirement Sys., Slip Opinion No. 2019-Ohio-1594, and State ex rel. Sales v. Ohio Pub. Emps. Retirement Bd., Slip Opinion No. 2019-Ohio-1568, the Ohio Supreme Court held that Ohio’s courts will defer to the decisions of retirement boards so long as there is “some evidence” to support the decisions of the retirement boards.

In State ex rel. Seabolt, the State Highway Patrol Retirement System (“HPRS”) determined that a state highway patrolman was not permanently disabled “in the line of duty” and, therefore, was only entitled to a lower retirement payment. While the patrolman presented evidence from several doctors suggesting that the patrolman’s disability resulted “in the line of duty,” the HPRS refused to reverse its decision. The Supreme Court deferred to the HPRS’s decision and held that “the presence of contrary evidence is immaterial, so long as the ‘some evidence’ standard has been met.” Seabolt at ¶ 15.

To read the State ex rel. Seabolt case, click here.

In State ex rel. Sales, the Ohio Public Employees Retirement System (“OPERS”) considered an entirely separate question of law but applied the same standard as in State ex rel. Seabolt. Specifically, the OPERS considered whether a psychiatrist who was contracted to provide psychiatric services to inmates at a public prison was an independent contractor. OPERS ultimately decided the psychiatrist was an independent contractor. While the psychiatrist presented some evidence that an employer-employee relationship existed, the Supreme Court again deferred to the OPERS decision and held that the “‘some evidence’ standard we employ recognizes that ‘[t]he determination of disputed facts and the weighing of evidence are exclusively within the jurisdiction and authority of the’ relevant agency.” Sales at ¶ 21.

To read the State ex rel. Sales case, click here.

Authors: Matthew John Markling, Patrick Vrobel, and John T. Sulik, Jr.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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In the case of Cincinnati Enquirer v. Cincinnati, 2019-Ohio-1613, the Ohio Court of Claims adopted a special master’s recommendation finding that electronic “storage in a personal, privately-paid cell phone did not automatically exclude a text message” from the definition of a public record. Cincinnati Enquirer at ¶ 3.

In this case, an individual made a public records request seeking text messages between five city council members over a four-month period. The city denied the request arguing that the text messages “are not records of the City and are not kept by the City.” Cincinnati Enquirer at ¶ 2.

Although ultimately finding the public records request to be overly broad, the special master found that text messages on personal, privately-paid cell phones are not automatically disqualified as public records as long as the content of the text messages otherwise satisfy the definition of public records under R.C. 149.43.

To read court of claim’s adoption, click here.

Authors: Matthew John Markling, Patrick Vrobel, and John T. Sulik, Jr.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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In the case of Electronic Classroom of Tomorrow v. Bd. of Edn., 2019-Ohio-1540, an Ohio appellate court reversed its earlier holding and now holds that a review and decision by the Ohio State Board of Education (“State BOE”) as to monies owed for overpayment of public funds by a community school was not be appealed.

As we blogged about here, here, and here; this case has a long and turbulent history. After the Ohio Supreme Court’s decision holding that the Ohio Department of Education (“ODE”) may require evidence of durational data regarding students in order for online-based or electronic learning schools to qualify for state funding, the Electronic Classroom of Tomorrow (“ECOT”) was directed by the State BOE to repay over $60 million of overpaid public funds due to poor durational data.

ECOT appealed this decision to an Ohio court of common pleas, which then dismissed the appeal as the “use of the word ‘final’ in the context of decisions of administrative bodies [means] the decision is not subject to an appeal.” ECOT at ¶ 6.

While an Ohio appellate court initially overruled the court of common pleas decision and allowed ECOT to appeal the State BOE’s direction, upon reconsideration, the Ohio appellate court reversed its original holding and held that a “statute that provides a decision of an administrative body is ‘final’ and that does not include a separate specific, statutory grant of jurisdiction to the trial court precludes an appeal.” ECOT at ¶ 8. As a result, the Ohio appellate court concluded that ECOT may no longer appeal the State BOE’s review and decision and must repay the $60 million back to the ODE.

To read this case, click here.

Authors: Matthew John Markling, Patrick Vrobel, and John T. Sulik, Jr.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney

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In the case of Readinger v. Mun. Constr. Equip. Operators, 2019-Ohio-1436, an Ohio appellate court held that the claims asserted by current and former union members against their certified bargaining representative were so “inextricably intertwined” with their rights under the collective bargaining that the Ohio State Employment Relations Board (“SERB”) had exclusive jurisdiction over their claims.

In this case, several former and current union members filed a lawsuit against the certified bargaining representative in an effort to force the bargaining representative “to provide an accounting as to how it spends the membership dues it collects.” Readinger at ¶ 7.

The Ohio appellate court noted that R.C. 4117.19 already requires employee certified bargaining representatives to provide an accounting of all income and expenses and further empowers SERB to enforce this requirement. Because the claims involved the accounting of an employee certified bargaining representative – which is covered under collective bargaining statutes, the Ohio appellate court concluded that the claims were subject to the exclusive jurisdiction of SERB.  Specifically, the Ohio appellate court found that the claims were “inextricably intertwined with the collective bargaining rights” such that SERB had exclusive jurisdiction over the matter. Readinger at ¶ 22.

To read this case, click here.

Authors: Matthew John Markling, Patrick Vrobel, and John T. Sulik, Jr.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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In the case of Redlin v. Grosse Pointe Pub. School Sys., 6th Cir. No. 18-1641, 2019 U.S. App. LEXIS 11104 (Apr. 16, 2019), a federal appellate court held that (1) the transfer of an assistant principal from a high school to a middle school and (2) negative performance evaluations may constitute adverse employment actions for the purpose of a gender discrimination claim.

To establish a gender discrimination claim in the employment context, an individual must demonstrate, among other things, that the individual “suffered an adverse employment decision.” Redlin at 11. The federal appellate court held that the transfer of the assistant principal from a high school to a middle school could constitute an adverse employment action because the transfer “outwardly appeared to result in a loss of both salary and prestige.” Redlin at 12.

The federal appellate court also held that, in order “for a negative performance evaluation to count as an adverse employment action, ‘the [employee] must point to a tangible employment action that she alleges she suffered [* * *] because of the downgraded evaluation.’” Redlin at 13. In this case, the federal appellate court found that the negative evaluation could qualify as an adverse employment decision as it prevented the assistant principal from being eligible for a two-year rolling contract.

To read this case, click here.

Authors: Matthew John Markling, Patrick Vrobel, and John T. Sulik, Jr.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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On April 10, 2019, the United States Department of Education released a Parent and Educator Guide to School Climate Resources to provide guidance on creating a positive school climate, reduce disciplinary issues, and increase overall school safety. The guide also provides best practices and additional resources on these topics.

To read the guide, click here.

Authors: Matthew John Markling, Patrick Vrobel, and John T. Sulik, Jr.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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Your McGown & Markling Pinball Wizards went head-to-head in the Winter 2019 McGown & Markling Pinball Championship at the Ohio Pinball Show on April 5, 2019.

This epic nine-game pinball championship began with Matt selecting Indiana Jones: The Pinball Adventure, which currently ranks as the No. 10 pinball game in the Pinside Pinball Top 100. And Patrick found fortune and glory on this pinball adventure placing him first on the leaderboard.

 Leaderboard: Patrick 1, John 0, Matt 0

For the second game, Patrick selected Jurassic Park, which ranks No. 69 in the Pinside Pinball Top 100. Patrick chose poorly as a victorious John proudly proclaims, “Welcome… to Jurassic Park!”

 Leaderboard: Patrick 1, John 1, Matt 0

For the third game, John selected Attack from Mars, which ranks No. 2 in the Pinside Pinball Top 100. “Ack! Ack! Ack!” Matt ties the tourney … thanks his Grandma for always being so good to him, and, and for helping him save the world and everything.

 Leaderboard: Patrick 1, John 1, Matt 1

For the fourth game, Matt selected Medieval Madness, which is widely regarded as the best pinball machine of all time and ranks No. 1 in the Pinside Pinball Top 100. Patrick valiantly fought dragons, rescued maidens, participated in jousts, and rallied angry peasants to reclaim the tournament lead.

 Leaderboard: Patrick 2, John 1, Matt 1

For the fifth game, Patrick selected Fish Tales, which ranks No. 46 in the Pinside Pinball Top 100. Having mastered tropical fishing … freshwater fishing … deep sea fishing … Matt ties Patrick on the leaderboard.

 Leaderboard: Patrick 2, Matt 2, John 1

For the sixth game, Matt selected The Addams Family, which is the most commercially successful pinball machine and ranks No. 12 in the Pinside Pinball Top 100. Matt danced the Mamushka while Nero fiddled, danced the Mamushka at Waterloo, danced the Mamushka for Jack the Ripper, and danced the Mamushka to first place on the leaderboard.

 Leaderboard: Matt 3, Patrick 2, John 1

For the seventh game, John selected Lethal Weapon 3, which ranks No. 203 in the Pinside Pinball Top 100. Matt reminds Patrick and John that they have the right to remain unconscious and moves further ahead on the leaderboard.

 Leaderboard: Matt 4, Patrick 2, John 1

For the eighth game, Patrick selected Congo, which ranks No. 44 in the Pinside Pinball Top 100. Out of nowhere, Patrick shows why he is a pinball primatologist by putting both Matt and John on the endangered species list!

 Leaderboard: Matt 4, Patrick 3, John 1

For the ninth – and final – game, John selected Creature from the Black Lagoon, which ranks No. 28 in the Pinside Pinball Top 100. With a win at “The Black Lagoon,” Patrick can send the tournament into sudden death, but nobody ever comes back alive to prove it and Patrick was no exception. It was impossible for John to win this game, he did it … playing the spoiler and securing a tourney win for Matt.

 Final Matt 4, Patrick 3, John 2

 

Ever since they were young kids

They’ve played the silver ball

From Gahanna to Euclid

They must have played them all

You’ve never seen anything like them

In any amusement hall

Those McGown & Markling attorneys

Sure play a mean pinball!

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On April 1, 2019, the United States Department of Labor issued a proposed rule to update the responsibilities of employers and joint employers. The proposed rule would establish a four-factor test to determine joint liability for minimum wage and overtime violations. The four-factor test looks to see if the potential joint employer exercises the power to (1) hire or fire employees, (2) supervise and control the employee’s work schedule and condition of employment, (3) determine the employee’s rate and method of employment, and (4) maintain the employee’s employment records.

To read the proposed rule with examples applying the four-factor test, click here.

Authors: Matthew John Markling, Patrick Vrobel, and John T. Sulik, Jr.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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On March 28, 2019, the United States Department of Labor issued a notice of proposed rulemaking updating the exclusions allowed when calculating overtime payments. Additionally, the proposed changes would change the definitions of “show up,” “call back,” and other similar types of pay from “infrequent and sporadic” to “without prearrangement.”

To read the notice and the new exclusions, click here.

Authors: Matthew John Markling, Patrick Vrobel, and John T. Sulik, Jr.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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